tuazon labor rev
TRANSCRIPT
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Labor Law
Bar 2011 Notes
Roland Glenn T. Tuazon
Ateneo de Manila University
Table of contents:
1. FUNDAMENTAL PRINCIPLES AND POLICIES
2. RECRUITMENT AND PLACEMENT
3. LABOR STANDARDS
4. TERMINATION
5. SOCIAL LEGISLATION
6. SELF-ORGANIZATION
7. COLLECTIVE BARGAINING
8. CONCERTED ACTS
9. PROCEDURE
FUNDAMENTAL PRINCIPLES AND POLICIES
• What is labor law?
o A regulatory devise, which regulates the relationship between
the employer and the worker – the two factors of production• What is labor standards law?
o Establishes the minimum terms and conditions of employment
o Rationale: these are necessary for the worker and his family to
survive
o These are beyond then negotiation of the parties; they cannot
agree to terms less than those provided in the law. If they do,
these are void.
• What is labor relations law?
o It is concerned with institutional relationships and does not look
as the laborer as an individual, but as a group of workers
(union)
o Two aspects of labor relations law:
1. Union and State relationship 2. Union as an organization and its relationship to the
members
• What is social or welfare legislation?
o It solves the problem of avoiding making the worker a charge
on society and solves the problem of continuity of income
either in whole or in part if and when some contingencies
occur, such as sickness, injuries, premature death, and final
death
o What are the laws covered by social legislation?
1. Employees compensation and State InsuranceFund (ECSIF)
2. SSS Law
3. GSIS Law
4. Limited portability law
o Which are applicable to what workers?
SSS, to private sector employees
GSIS, to government employees and those in GOCCs
Both, to those employed in both fields
Limited portability provides a “tacking provision” for
those who have partially fulfilled GSIS and SSS
requirements
SSS and GSIS for non-work-connected injuries and
ECSIF for work-connected injuries
What is the basis for enacting labor law?
o Constitutional provisions mandating the State to protect
laborers
o Police power of the State
What are the sources of labor law?
o 1. Contract law – gives rise to rights and obligations
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A. Civil code provisions on contracts
B. Collective Bargaining Agreements
o 2. Past practices, which are:
Those given voluntarily by the employer without
compulsion by law for a sufficient duration
What is sufficient period or duration?
Case by case
o 3. Company policies
Those unilaterally designed and implemented by the
employer, stating rules and regulations of the
company. These can be the source of rights and
obligations.
N.B. these are unilaterally imposed by the employer;
otherwise, it would fall under contract law.
• What is a labor case?
o 1. Involves employer and employee
o 2. Subject of controversy and laws of resolution fall under labor
law
Thus, if the area of resolution is civil law and not labor
law, such as replevin, then it is not a labor dispute
What is management function?
o These are rules based on the right of ownership, designed for
efficient and economical management of the enterprise. It
permeates the entire labor code, regardless of field.
o What is the limit to management function?
The law reserves the right to inquire as to themanner
of exercise of such right.
• How does the law look upon waivers and compromises?
o It looks upon it with disfavor, although not all waivers and
compromises are void under law.
o What are the tests of validity of waivers and
compromises?
1. Arithmetic measure – is what was received for
settlement unconscionable?
2. Relative positions of the employer and employee –
what is the educational attainment of each? Was the
employee in dire need?
3. Freedom on the part of the worker – was there
absence of coercion?• What are the guaranteed rights of laborers under Art XIII, Sec. 3?
o 1. Self-organization
o 2. Collective bargaining and negotiations
o 3. Peaceful concerted activities, including right to strike
o 4. Security of tenure
o 5. Humane conditions of work
o 6. Living wage
o 7. Participation in policy and decision-making processes
How does LC Art. 255 operationalize this?
• Workers can participate in policy and
decision-making processes of the
establishment where they are employed as
far as it would directly affect their rights,
benefits, and welfare
• What are the other goals set by this provision?
o Full protection to labor
o Full employment and equality of opportunities
o Shared responsibility between ER and EEs
o Preferential use of voluntary dispute settlement
o Two fold rights:
Right of labor to just share in fruits of production Right of enterprises to reasonable returns to
investments
• What does the NCC say?
o Art 1700 – relations between labor and capital are not just
contractual, but impressed with public interest – must yield to
common good
• What factors does labor law consider as to contracts?
o 1. Due process clause
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Labor is considered property
Due process and EPC can protect the employer too,
not just the employee
o 2. Liberty of contract and laissez faire
N.B. but the State still retains an interest on the
worker as part of society no matter how reckless he
may be; thus, the State continues to interfere in
contract. Laissez faire is not totally adopted.
When does the Labor code apply?
o 1. There must be an employer-employee relationship
o 2. Generally applies to all kinds of employment
N.B. but for GOCCs created and governed by special
charter, apply the Civil Service Law instead
o What is the rule on international organizations?
Beyond the coverage of the Labor Code, but the
international agreement must contain provisions on
method of dispute settlement.
N.B. if not provided, the worker can ask for withdrawal
of immunity of suit so that Philippine legal processes
can apply.
o What about school teachers?
Public school teachers are covered by the Civil
Service Law.
Private school teachers are covered by the Dep. Ed.
Manual But for all matters not covered by these, the Labor
Code applies. The most important is probationary
employment.
o Does the Labor Code apply to religious corporations?
If thenature of the controversy is not religious, then
the Labor Code applies.
o Does the Labor Code apply to managerial employees?
Yes, although certain aspects like Hours of Work do
not apply.
RECRUITMENT AND PLACEMENT
RECRUITMENT OF LOCAL AND MIGRANT WORKERS
• What is recruitment and placement?
o Any act of:
Canvassing, enlisting, contracting,
Transporting, utilizing, hiring, procuring workers
Includes referrals, contact services, promising or
advertising employment for profit or not, here or
abroado When is there a presumption of R&P?
When a person or entity offers or promises for a fee
employment to two or more persons
o How do you harmonize the definition and the
presumption?
Any one act under the definition is sufficient to
establish R&P, regardless of number of persons. The
presumption is only a rule of evidence which operates
when there are two persons to whom employment is
promised for a fee and the acts defined above cannot
clearly be established.
o Who are “workers”?
All members of the labor force, whether employed or
unemployed
• What is the State policy under MWA?
o Promotion of overseas recruitment is not State policy, because
it seeks to create local opportunities. But while there are
workers deployed abroad, there must be protections for them.
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o Does the POEA have jurisdiction over ER-EE relations
cases for OFWs?
Not anymore. It’s been retransferred to NLRC. The
POEA only handles administrative cases.
o
What is the nature of employment of seafarers? They are contractual employees
Differentiate license from authority:
o License is authorization to operate a private employment
agency. A Private Employment Agency is an entity engaged in
R&P for a fee (charged from employer, worker, or both)
o Authority is authorization to operate a private recruitment entity.
A Private Recruitment Entity is an entity engaged in R&P
without charging any fee
Illegal recruitment
o What is the definition of illegal recruitment under the LC?
Any recruitment activities (Art. 13) or prohibitions (Art.
34) undertaken by non-licensees or non-holders of
authority
o What is the definition of illegal recruitment under the MWA
(RA 8042)?
Any recruitment activities (Art. 13) undertaken by non-
licensees or non-holders of authority
Any prohibited acts (Art. 34), whether licensed or non-
licensed
o What are the prohibited acts (Art. 34)?
1. Overcharging (whether vis-à-vis schedule of fees or
what has been loaned/advanced)
2. Public false information re: recruitment
3. Misrepresentation to secure license or authority
4. Induce or attempt to induce employed worker to
leave job to offer him to another
• Except to save him from oppressive
employment
5. Influence employer not to hire worker unless
coursed through his agency
6. Engage in R&P for harmful or anti-public policy
work
7. Obstruct or attempt to obstruct inspection by Sec ofLabor or representatives
8. Fail to file reports required by Sec of Labor
9. Substitution or alteration of approved contracts
without approval of Sec of Labor
10. Becoming officer or being involved in
management of travel agency
11. Withhold or deny travel documents from workers
before departure due to financial considerations
• Unless authorized by LC
o What are the additional grounds added by MWA, apart
from these?
12. Failure to deploy the worker without valid reason
13. Failure to reimburse worker when deployment
does not happen without his fault
Differentiate simple illegal recruitment, illegal recruitment in large
scale, illegal recruitment as syndicate:
o Large scale – if committed against 3 or more persons
individually or as a group
o By a syndicate – carried out by a group of 3 or more persons
conspiring or confederating with each othero What are these two types of illegal recruitment called?
Illegal recruitment as economic sabotage
Can illegal recruitment and estafa coincide?
o If there are pecuniary damages due to previous or
simultaneous false pretense resorted to by the entity, then the
latter can be sued for estafa under Art. 315
o This suit may prosper aside from illegal recruitment
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What are the liabilities of the local employment agency and the
employer?
o The agency is solidarily liable for the unpaid salaries of the
worker, along with the principal/employer. This holds true even
if the agency agreement has been severed, if no notice wasgiven to the employee.
o What is the theory of imputed knowledge?
The presumption that knowledge of he agent can be
ascribed to the principal as well.
o When is an employee of the entity liable as a principal?
When he had knowledge of the offense and had
active and conscious participation. NOT liable as
principal when merely carrying out orders of superior.
What is the rule on pre-termination of contract of a MW?
o
If there was pre-termination without just cause, the employerwill be ordered to pay the workers:
o 1. Full placement fee with 12% interest AND
o 2. Salary for unexpired portion of the contract OR for 3 months
for every year of the unexpired term, whichever is lesser
o Isn’t this unconstitutional?
Yes, according to Serrano v. Gallant, but R.A. 10022
passed 1 year after reinstated the provision
Is direct hiring allowed for overseas employment?
o As a general rule, no, direct hiring is not allowed. It must be
through boards and authorized entities.
o What are the exceptions?
1. Diplomatic corps
2. IOs
3. Other employers allowed by the DOLE
What is the rule on employment of Non-Resident Aliens?
o Either the alien or the employer must obtain an employment
permit from the DOLE
o When is the permit issued?
Upon determination of non-availability or 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
o What is the special rule for those preferred areas ofinvestment?
Permit issued upon recommendation of the
government agency in charge of that enterprise
• Upon issuance of the employment permit to the NRA, what are the
regulations?
o Cannot transfer employment without prior approval from DOLE
Secretary
o Else, punished under the LC and/or deported
REGULATION AND ENFORCEMENT
• What is the rule on remittance of foreign exchange earnings?
o Employment contracts must contain a proviso that makes
remittance of the following rates mandatory –
1. Seamen – 70% of basic salary
2. Workers of Filipino contractors or construction firms
– 70%
3. Doctors, nurses, engineers, teachers, other
professionals whose contract gives free board and
lodging – 70%
4. Professionals without free board and lodging – 50%
5. Domestic and service workers – 50%
6. All others – 50%
• What are regulations?
o 1. Travel agents and sales agencies of airline companies
cannot engage in R&P for overseas employment, w/n for profit
o 2. Citizenship requirement for recruitment entities:
Filipino
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OR 75% Filipino ownership (authorized and voting
stock)
o 3. Minimum capitalization as required by Sec. of Labor
o 4. Non-transferability of authority or license
Cannot transfer to another person or use in another
place
What if you want to transfer offices?
• Get prior approval of Sec. of Labor, as with
appointing an agent or getting additional
offices
• What are the prohibited activities?
o See above enumeration (Art. 34)
• What is the nature of the regulatory and visitorial powers of the
Labor Secretary?
o The Secretary can restrict and regulate R&P activities of all
agencies covered
o Can issue orders and R&Rs
o Visitorial Powers – Sec of Labor or representatives may inspect
premises, inspect books/records of entities, require submission
of reports, etc.
• What must be given by those applying for license or authority?
o 1. Prescribed registration fees
o 2. Cash/surety bonds to guarantee compliance with provisions
What is the nature of the license?
o It is beyond the commerce of man, and subject to prior
approval
• What are the penalties for illegal recruitment?
o 1. Simple illegal recruitment – 12 y 1 d to 20 y imprisonment
And fine of P1M to 2M
o 2. Economic sabotage – life imprisonment
And fine of P2M to 5M
Maximum if the one recruited is less than 18 years, or
committed by a non-licensee or holder of
authorization
o 3. Prohibited acts – 6 y 1 d to 12 y
And fine of P500K to P1M
If alien, deported without further proceedings
o 4. In all cases:
Revoke license or authorization
LABOR STANDARDS
• Where do benefits come from?
o 1. Law (Labor standards law)
o 2. Contact (ex. CBA)
o 3. Vested benefits
HOURS OF WORK
• What is the rationale for the hours of work provisions?
o 1. To safeguard health and welfare of the laborer
o 2. Prevent unemployment (companies that operate more than 8
hours have to hire more workers or pay more)
o 3. The employee usually just accepts what the employer says,
so this will prevent begrudging acceptance of long work days
• Who are covered by the provisions on hours of work?
o By default, employees in all establishments and undertakings,
whether for profit or not
• Who are excluded by the provisions?
o 1. Government employees
Covered by Civil Service Law
Exception?
• Employees of GOCCs incorporated under
the Corporation Code
N.B. even GSIS-covered employees are not excluded
from the employee’s compensation program under the
Labor Code
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o 2. Managerial employees
What are managerial employees?
• 1. Primary duty is management of the
establishment, department, or subdivision
• 2. Customarily or regularly directs work of
two or more employees
• 3. Has authority to hire/fire employees of
lower rank, or at least their suggestions are
given particular weight
• N.B. this is not the same definition for
manager in labor relations. This is broader
in scope and covers even supervisory
employees, while the labor relations
definition does not.
Ratio: they are not hired for quantity of hours of workput in but the special training, knowledge, or
experience that requires discretion and independent
judgment
o 3. Field personnel
Who are these?
• Non-agricultural employees regularly
performing their duties away from the
principal place of business
What is essential?
Actual hours of work cannot be determinedwith reasonable certainty
Test: whether the employee is supervised on
the field
What about bus conductors and drivers?
NOT field personnel because inspectors
check their hours of work.
o 4. Members of the family of the employer who are dependent
on him for support
o 5. Domestic helpers
o 6. Persons in the personal service of another
o 7. Workers paid by results
Is this determinative of employer-employee
relationship?
• No. Always follow the four-fold test. This is
just a method to compute compensation.
Ratio: they are paid based on work output, regardless
of time employed
• What are the normal hours of work?
o Not exceeding 8 hours a day
Can normal hours of work be less than 8?
• Yes. It says “not exceeding”
Can an employer and employee contractually
agree that work must be 12 hours a day, or any
number above 8?
• Yes, it’s a contractual commitment – but the
extra 4 hours are covered by OT pay.
What is the “day” here?
• Work day (24 hour period starting from the
time an employee regularly starts to work)
• NOT calendar day
o What are the exceptions?
1. Health workers –
• In cities and municipalities with population at
least 1 million• Or in hospitals/clinics with bed capacity at
least 100
• What are their hours?
o 8 hours a day, 5 days a week
(N.B., it’s doesn’t say “not
exceeding” this time, so
they really must work 8
hours)
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Other types of time spent at work:
Type of work Counted as working time?
Idle time Yes, if the employee was engaged to
wait or he waited to be engaged.
The controlling factor: whether the
waiting time was for the employer’s
benefit or the employee’s benefit
Waiting time Yes, if waiting is integral part of the
work, or if the ER engaged him to
wait.
“On call” working Yes. It is when an EE is required to
remain on call that he cannot
gainfully and effectively use his timefor his own purposes.
Travel from home to work No.
Except, when:
1. EE made to work on
emergency call and travel is
necessary to get to work
2. Travel through conveyance
provided by ER
3. Travel under supervision
and control of ER
4. Travel under vexing and
dangerous circumstances
X was a company driver and was
engaged to pick up and drop off
other employees to and fro work.
Is this working time?
Yes, because it is done for the
employer’s benefit
Travel incidental in day’s work Yes, if part of EE’s regular activity
Travel away from home Yes, if it keeps an EE away fromhome overnight and it cuts across an
EE’s workday. It substitutes for
normal working time.
Semestral break, for teachers Yes. It is an interruption beyond
their control.N.B. this only applies
to regular full-time teachers
Attendance in lectures, meetings,
trainings, or programs
Yes.
Except if the ff requisites concur:
1. Attendance is outside
regular working hours
2. Attendance is voluntary
3. There is no productive work
done during attendance
Nightshift differential
What is the nightshift differential?
o 10% of regular wage, for each hour of work between 10 pm
and 6 am
Who are not covered by nightshift differential?
o 1. In government or GOCCs
o 2. Managerial employees
o 3. Field personnel or other employees whose time/performance
is unsupervised
o 4. Domestic helpers
o 5. Those in personal service
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o 6. Working on contract basis, purely commission basis, or paid
fixed amount irrespective of time worked
o 7. In retail or service establishments regularly hiring only up to
five workers
o N.B. So this is just like the hours of work enumeration, but
including retail and service establishments hiring only up to 5
workers.
o Reason?
It’s onerous for the small business to pay NSD, but in
also, it will be harsh if they don’t have to comply with
hours of work just because they have few employees.
What is the rationale for the NSD?
o 1. Social disarrangement
o 2. Lower efficiency and output
o 3. Higher risk going to and fro work in darknesss
What if it is also overtime work?
o The 10% is calculated against OT pay as base
Overtime Work
What is OT work?
o Work performed beyond 8 hours a day
What is the rate for each hour of work done beyond 8 hours?
o Regular wage + 25%
N.B.Base excludes fringe benefits/bonuses – just
regular payo What if the OT work was done during a holiday?
The +25% becomes +30%
o What if the OT work was done during a rest day?
The +25% becomes +30%
What are conditions to be entitled to OT pay?
o 1. Actual rendition of OT work
o 2. Submission of sufficient proof that work was actually
performed
o 3. With knowledge and consent of employer
Is it legal for the employment contract that the monthly salary
would be treated as covering even pay for rest days and holidays?
o Yes, as long as the wage is still equal to or above the minimum
wage
What is the anti-offset rule?
o Under-time work on one day cannot be offset by overtime work
on another day
o Neither does permission given to the employee to go on leave
some other day of the week exempt the employer from paying
additional compensation
Can OT pay be waived?
o No.
o Unless the waiver was in consideration of other benefits or
salary that equals or exceeds the OT pay.
• What are the emergency situations when OT work can be made
mandatory by the ER?
o 1. RP is at war, or national/local emergency declared by
Congress or President
o 2. Necessary to prevent loss of life/property or imminent
danger due to disaster or calamity
o 3. Urgent work on machines, installations, equipment to avoid
serious loss or damage to the employer
o 4. Necessary to prevent loss or damage to perishable goods
o 5. Completion or continuation of work started before the 8th
hour must be completed to avoid serious obstruction or
prejudice to the business
o 6. Necessary to avail of favorable weather or environmental
conditions
o When OT is required under these 6 circumstances, must
there be extra compensation nonetheless?
Yes. It just becomes mandatory, rather than optional.
What prevails, CBA provision or OT work rate?
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o CBA may stipulate higher OT pay rate. The court cannot
impose upon the parties anything beyond what they agreed
upon. If there is none, impose regular OT rate.
WAGES
• What is the “no work no pay” principle?
o If there is no work performed by the employee, there can be no
wage or pay.
o Exceptions to “no work no pay”:
1. The laborer was willing, able, and ready to work but
was prevented by management
2. Illegally locked out, suspended, or dismissed.
o What if the failure to work was the employee’s fault?
He doesn’t get paid
o What is the principle established under ISA v.Quisumbing?
Equal work for equal pay; no distinction can be made
based on nationality
Facilities and supplements:
Facilities Supplements
Included in “wages” Not included in “wages”
Can be credited as wages or
deducted from wages
Over and above wages
Articles or services like
board/lodging which benefit the EE
and his family
Requisites:
1. Customarily furnished in
trade
2. EE voluntarily accepted it in
Extra remuneration or special
privileges received over and above
the EE’s ordinary wages
N.B. For facilities and supplements,
the nature of the benefit or item is
not a controlling criterion. It is the
purpose that controls. Check if it’s
writing
3. Charged at reasonable
value
meant to be part of his wages or
over and above them.
Generally for the benefit of the
employee. So it’s usually at theinitiative of the EE.
Usually on the initiative of the ER.
Tools of trade or other articles for the
benefit of the ER or the business
Who are excluded from the rules on wages?
o 1. Farm tenancy/leasehold
o 2. Cottage industries and other small businesses that probably
cannot afford to pay the wage rates set by law.
N.B.Consult wage orders established by regional
wage boards
o 3. Domestic service
o 4. Barangay Micro Business Enterprises (BMBE) under R.A.
9178
Business entities engaged in producing or processing
of products (including agro-processing), whose total
assets do not exceed 3M pesos
What does the term “assets” cover?
Includes loans
Excludes land where the office, plant, or
equipment are situated
Differentiate wages and salaries:
o Wages –
Manual labor, skilled or unskilled
Paid at stated times
Measured by day, week, month, or season
Usually for lower and less responsible character of
employment
o Salaries –
Higher degree of employment, superior grade of
services, and implies position/office
Larger and more permanent/fixed compensation
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• What is the non-diminution rule?
o The benefits being given to employees cannot be taken back or
reduced unilaterally by the employer, because the benefit has
become part of the employment contract (whether written or
unwritten)o When does a benefit set-in and cannot be diminished?
1. When the benefit is based on express policy or has
ripened into practice for a long period of time
2. AND that it is consistent and deliberate
o What can be diminished?
1. Conditional or contingent benefits (ex. bonuses)
2. Those granted due to error or doubtful application
or law
• What is the exception to this?
o When the error has stood so long
and has been left uncorrected that it
has ripened into company policy
• What is the rule on those paid by results?
o If paid according to piece rates in DOLE Pierce Rate Orders:
Wages = number of pieces * Piece Rate
No overtime pay
o If paid according to output rates prescribed by the employer
and not yet approved by DOLE:
If number of pieces * Rate is >= to legal daily wage,
they receive the former
If formula is < than the legal daily wage, they receive
the latter
• What are piece-rate employees entitled to?
o 1. Applicable minimum daily rate
o 2. SIL
o 3. Night shift differential
Huh? I thought those paid by results are excluded
by NSD?
• Yes – but that covers those paid by
commission, contract basis, or by end-result.
• That doesn’t include piece-rate workers who
are just like normal workers in every respect
except they are paid by pieces made.o 4. Holiday pay
How calculated?
• Not less than his average daily earnings for
the last seven actual working days
• It must not be less than the minimum wage
o 5. Meal and rest periods
o 6. OT pay
Conditional
o 7. Premium pay
Conditional
o 8. 13th month pay
o 9. Other benefits granted by law or by agreement
o N.B. So the rule is that piece-work EEs are entitled to the
normal benefits because the difference between them and the
usual employees is justmanner of payment and nothing else
• What are the legal forms of payment?
o Must be legal tender
o Cannot be in PNs, vouchers, coupons, tokens, tickets, etc.
o What if the employee requested for PNs, vouchers, etc?
Even so. It’s not allowed.
o When is payment by check allowed? 1. Customary manner of wage payment in that place
2. Stipulated in CBA
3. Or where all of the following requisites are met:
• A. Bank or encashment facility within 1 km
radius from workplace
• B. the ER or his agents do not receive
pecuniary benefit from the arrangement
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• C. EEs given reasonable time during banking
hours to withdraw wages from bank
o This is compensable working time
• D. Written consent of employee if there is no
CBA provision
4. Special circumstances provided in labor regulations
o Is payment by ATM allowed?
Yes, under 25 Nov 1996 labor advisory
Requisites for payment through ATM:
• 1. Written permission of majority of EEs
• 2. 25 or more EEs in the establishment
• 3. Establishment is within 1 km from bank
• What is the time of payment?
o At least once every 2 weeks or twice a month at intervals not
exceeding 16 days
o What if there is force majeure preventing payment? Payment made as soon as force majeure disappears
o In all cases, what is prohibited?
Payment with less frequency than once a month
o What is the rule for employees made to perform tasks
which cannot be completed in 2 weeks?
1. Payments at intervals not exceeding 16 days, in
proportion to amount of work completed
2. Pay balance upon completion of work
o What is required by the IRRs?
1. Individual time record of employees
2. Payroll
• Where and how must wages be paid?
o At or near the place of undertaking
N.B. Remember the ATM exception
o When can there be payment in any other place?
1. Impossible to pay in place of work due to
emergency or calamity
2. ER provides free transportation back and forth
3. Analogous circumstances
N.B. For all: time spent is compensable work time
o What are prohibited places of payment?
Bar, night/day club, drinking place, massage clinic,
similar places
Except if the people are employed there
o Who must receive the payment?
The worker himself
o Exceptions to this rule?
1. Force majeure – can be paid to another person with
written authority given by EE
2. Decease of EE –
• Can pay wages to heirs directly without need
of intestate proceedings
• What is the procedure?
o The heirs submit an affidavit stating
relationship to deceased
o ER pays through Sec. of Labor or
his representatives
o Sec. of Labor acts as referee to
divide the amount
3. Worker’s family member authorized in writing
• What is the rule on workers’ preference under Art. 110?
o In case of bankruptcy or judicial liquidation, the worker’s unpaid
wages are preferred.
o It is not a lien, but a reordering of credits (see Concurrence and
Preference of Credits in Civil Law)• What is the rule on attorney’s fees?
o In case of unlawful withholding of wages –culpable party may
be assessed attorney’s fees equal to 10% of wages recovered
o In any proceeding, cannot recover attorney’s fees exceeding
10% of the wages recovered
• What is non-interference in disposal of wages?
o No employer can limit or interfere with the employee’s disposal
of his wages.
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o Can an employer compel his employees to purchase any
merchandise or commodity?
No, whether it be from himself or another person
• Can an employer deduct his employees’ wages?
o In general, no.
o What are the exceptions under the Labor Code?
1. To pay for insurance premiums that employee
consented to
2. Union dues, where right to check-off is authorized
in writing by the employee or recognized by the
employer
3. Authorization by the Sec. of Labor
o What are the exceptions under other laws?
1. Employee is indebted to the employer, and it is due
and demandable
2. Court ordered attachment of wages for debts
incurred for food, shelter, clothing, or medical
attendance only
3. Withholding tax
4. Salary deductions for coop members
5. Payment to third persons, upon written
authorization by employee
• And agreement by the employer, who is not
obliged to do so
6. Agency fee
7. Facilities
8. Loss or damage under Art. 114 (see below)
9. SSS, Medicare, Pag-ibig premiums
• Can the employer require the employees to make deposits to cover
for deductions for loss/damage to tools or equipment?
o In general, no.
o What is the exception?
When it is shown that such practice is long-
established and recognized in the trade
o If allowed, when can deductions be made (requisites)?
1. Employee is responsible for the loss/damage
2. Employee given chance to show cause against
deduction
3. Amount is fair and reasonable, and not exceeding
the loss/damage
4. Deduction does not exceed 20% of employee’s
wages in a week
• Can wages be withheld by the employer, if the employee violated
company rules, failed to perform tasks, or for any other reason?
o No. It can be dealt with in some way but not by withholding
wages.
o Other express prohibitions?
Deduction to ensure employment
Retaliatory deductions
False reporting
• Which body has the power to prescribe rules and guidelines for
determination of wages in the country?
o National Wages and Productivity Commission (NWPC)
o What is the status of guidelines issued by Regional
Tripartite Wages and Productivity Boards?
These are void, if without the approval of or contrary
to NWPC guidelines
o What is the status of a wage order without required public
consultation and publication in newspapers?
Void as well
Who sets the minimum wage?
o Regional Tripartite Wages and Productivity Boards
o Is poor financial condition of the company an exemption to
payment of minimum wage?
No.
o What does “minimum wage” relate to?
A day’s work which comprises 8 hours at most
o When is a worker “daily paid”?
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Paid only for days he actually worked
o When is a worker “monthly paid”?
When the monthly rate covers all the days of the
month.
Calculated through the following formula:
• Monthly wage x 12 / 365 = daily rate
Must exceed the following formula:
• Minimum wage x 365 / 12
• Distinguish agricultural from industrial rates:
o Agricultural rates – farming in all its branches
o Industrial – manufacturing and processing
o What determines which rate applies?
Nature of the work. It is permissible for one company
to pay agricultural rate to some, and industrial rate to
others.
• What is wage distortion?o When the pay advantage of a position over another is removed
or significantly reduced due adjustment required by a wage
order
o The advantage must thereafter be restored
o Must there be full elimination of salary differences?
No. A “severe contraction” is enough.
o Are efforts to rectify mandatory?
Yes, whether the establishment is organized or
unorganized
What if it’s an organized establishment? (Neg-GM-VA)
• 1. Employer and union must negotiate
• 2. Any dispute must be resolved through
grievance machinery in CBA
• 3. If unsolved, through voluntary arbitration
What if it’s an unorganized establishment? (Neg-
Labor-NLRC)
• 1. Employer and union must endeavor to
correct it
• 2. Any dispute must be resolved through
Labor Arbiter (R.A. 6727 says NCMB)
• 3. In unsolved after 10 days of conciliation,
refer to NLRC
o Must the new difference be the same as before?
No, not to the last peso. Restoration of appreciable
differential is sufficient.
o Is any issue involving wage distortion a valid ground for
strike or lockout?
No. Check the enumeration – it’s not there.
o What is the “just and equitable” formula forwarded by the
SC inMetrobank?
(minimum wage / actual salary) * (prescribed
increase) = distortion adjustment
o Is there inter-region wage distortion?
No. Just intra-region. The wage-fixing rates are fixed
per region, and comparison must be within these
regions and not across regions.
o What if the salary distortion was created due to employer-
initiated salary restructuring?
There is no legal duty to rectify the distortion because
the legal duty only arises from distortions brought
about government wage orders.
o What are the prohibitions pertinent to wage orders?
1. No TROs or injunctions are allowed for proceedings
before the NWPC or RTWPBs.
2. Wage orders must respect the statutory minimum
wage set by Congress.
o Who are not covered by wage orders?
1. Household/domestic workers, and those in
personal service
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2. Workers in retail/service establishments employing
not more than 10 workers, when exempted from
compliance for a certain period fixed by
commission/boards
3. Workers in new business enterprises, within 2-3years from start of operations, when exempted and:
Outside NCR
Or in EPZs
o How often can there be a wage order?
Once every 12 months
Except when there is a Congressional law
o What are factors considered in wage orders? (don’t
memorize but understand and familiarize)
1. Standards of living
2. Needs of workers/families
3. Wage adjustment vis-à-vis consumer price index
4. Prevailing wage levels
5. Effects on employment family income
6. Cost of living and changes
7. Fair return of capital investment and employers’
capacity
8. Need to induce investment in rural areas
9. Equitable distribution of income
10. Demand for living wages
REST DAY
• When does the right to rest day accrue?
o For every six consecutive normal work days
• When is the rest day set?
o Depending on the CBA or subject to RRs
o What if the employee has preference based on religion?
It is respected, but he must inform the employer at
least 1 week before the day preferred
What if it might cause prejudice to business?
• Resort to other remedial measures. If there
are none, must schedule the preferred rest
day on that chosen day at least twice a
month.
•
When may an employee be required to work on a rest day?o 1. Actual or impending emergencies caused by disaster or
calamity, to prevent loss of life/property
o 2. Urgent work on machinery, equipment, or installation to
avoid serious loss
o 3. Abnormal pressure of work due to special circumstances
And there are no other measures
o 4. Prevent loss or damage to perishables
o 5. Nature of work requires continuous operations and stoppage
of work may result in irreparable injury or loess to employer
o 6. Analogous circumstances
o 7. Favorable weather or environmental conditions, when
performance is dependent on such
o (N.B. If you notice, this is the same as the Mandatory OT
enumeration, except for “abnormal pressure of work due to
special circumstances”)
• What is the rate of rest-day compensation?
o Regular wage plus 30% (“premium pay”)
o What if because of the nature of the employee’s job, there
are no regular workdays and no regular rest days can be
scheduled?
The extra 30% applies to Sunday work
• What is the rate for work on aspecial holiday?
o Regular wage plus 30%
o What if it is also his scheduled rest day?
Regular wage plus 50%
N.B. if he works OT, then it’s plus 30% of 150%
• What are the special holidays?
o 1. All Saints’ Day (Nov 1)
o 2. Last day of the year (Dec 31)
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o 3. Ninoy Aquino day (Aug 21)
• What if the employee does not work on a special holiday?
o No pay
• What is the implication when a day is declared as a special
workingholiday?
o Then no premium pay is given. An employee just earns 100%
if he works.
HOLIDAYS
• Which employers are not required to pay this holiday pay?
o 1. Government and GOCC employees
o 2. Domestic helpers
o 3. Those in personal service of another
o 4. Managerial employees
o
5. Field personnelo 6. Those paid based on contract, commission, or for end-result
regardless of time spent working
o 7. Those in retail and service establishments employing less
than 10 workers
o (N.B. This is the same as NSD enumeration, and the same as
hours of work exemption + 10 workers-rule)
• Are monthly-paid employees excluded from holiday pay?
o No. They are included. The IRR provision establishing this is
void.
• For hourly-paid teachers, will the calling off of class or declaration
of special public holiday deprive them of income?
o No. They should receive what they would have been paid.
o What about when extensions are given?
Then they are paid their hourly rates.
• Are private school teachers entitled to holiday pay?
o Yes if the holiday falls during Christmas vacation
o No if the holiday falls during semestral breaks
• What about employees paid by results?
o Paid average daily earnings for 7 days preceding holiday
o But must not be less than minimum wage
• What about seasonal workers?
o Not paid holiday pay during off-season
Compensation:
Holiday and EE does not work 100% pay
Holiday and EE works 200% pay
Double-holiday (ex. Maundy
Thursday and Araw ng Kagitingan)
200% if EE rests; 300% if EE works
Holiday falls on Sunday 100% if EE rests; 200% if EE works
(no special rule)
Holiday falls on rest day 100% if EE rests; 230% if EE works;
N.B.+30% of 230% if EE works OT
• What is the rule in case of absences?
o Employee on LOA with pay –
entitled to benefit
o Employee on LOA without pay on the day immediately
preceding a regular holiday –
not entitled to holiday pay unless he works on such
regular holiday
o If immediately preceding day to a holiday is a non-working day
or is the scheduled rest day –
entitled to benefit only if he worked on the dayimmediately preceding the rest day or non-working
day
• What if there are successive regular holidays, like Maundy
Thursday and Good Friday?
o To be entitled to two successive holidays, employee must:
1. Be present on the day immediately preceding the
first holiday
2. Or be on paid leave
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o If he absents himself on the day immediately preceding
the first holiday, what is the consequence?
He may not be paid for the two holidays
What is the remedy?
He can go to work on the first holiday.
• What is the rule if there is temporary shutdown or cessation of
work?
o If regular holiday falls in period of temporary shutdown (ex.
inventory, repair, etc.) –
Entitled to benefit
o If it falls in period where operations cease due to business
reverses, as authorize by Sec. of Labor –
No holiday pay
• What is an ECOLA? Is the employee entitled to it during a legal
holiday?
o Emergency Cost of Living Allowance, which is not part of the
regular wage
o Yes, whether or not the employee works on a legal holiday, he
is entitled to ECOLA
• What are the legal holidays?
o New Year
o Maundy Thursday
o Good Friday
o Araw ng Kagitingan (April 9)
o Labor Day (May 1)
o Independence Day (June 12)o National Heroes Day (Last Sunday of August)
o Bonifacio day (November 30)
o Eidul Fitr
o Eidul Adha
o Christmas Day
o Rizal Day (December 30)
• What is the “holiday economics” rule?
o For the following seven holidays, the holiday is moved to the
nearest Monday –
Araw ng Kagitingan
Labor Day
Independence Day
National Heroes Day (becomes Last Monday of
August)
Bonifacio Day
Rizal Day
Ninoy Aquino Day Special holiday
LEAVES
• What is the right of Service Incentive Leave?
o Every employee who has rendered 1 year of service is entitled
to SIL of 5 dayso To whom will SIL not apply?
0. USUAL (Government/GOCCs, domestic workers,
those in personal service of another, managerial, field,
contractual/commission/end-result)
1. Those already enjoying this benefit
2. Those with Vacation Leave (VL) with pay of at least
5 days
3. Those in establishments with less than 10
employees
4. Establishments exempt by the Sec. of Labor, afterconsidering viability or financial condition of the
establishment
o (N.B. There are actually just three categories: a) those who
already grant it, and b) those who can’t grant it, c) usual)
What is the prohibition as to benefits granted in excess of what is
provided herein?
o It cannot be the subject of arbitration or any court/admin action
Is VL or Sick Leave required to be given?
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o No, it is not required by law. It is dependent on employer policy
and CBAs.
o These are voluntary benefits.
What are required by law (mandatory benefits)?
o 1. SIL
o 2. Paternity Leave (RA 8187)
o 3. Maternity Leave (SSS Law)
o 4. Solo Parent Leave (RA 8972)
o 5. Battered Woman Leave (RA 9262)
o Does the “less than ten employees” rule apply to Paternity
or Maternity Leave?
No. It only applies to SIL.
Why?
Kawawa naman sila, nanganak na nga,
papapasukin mo pa. It doesn’t matter how
many employees are there. What happens to unused SIL?
o Converted to cash.
Maternity Leave:
o Who is covered?
Female who has paid at least 3 monthly contributions
in the 12-month period immediately preceding the
semester of herchildbirth or miscarriage
o What does she receive?
100% of average daily salary for 60 days
100% of average daily salary for 78 days, if caesariano What are the conditions?
The employee must notify the employer of her
pregnancy – and this information is transmitted to the
SSS
Full payment is advanced by the employer within 30
days from filing the maternity leave application
o Can the woman recover sickness benefits concurrent with
maternity leave?
No.
o When does the SSS reimburse the employer?
Upon satisfactory proof that the employer has
advanced to the employee the benefits required
o How many times can maternity leave benefits be availed
of?
First four deliveries or miscarriages
o What is the consequence if the employer fails to turnover
to the SSS the employee’s contributions, or fails to inform
the SSS of her pregnancy?
Employer pays damages to the SSS equal to what the
employee would have been entitled to
o Is the identity of the father material?
No, it doesn’t matter who the father is
Paternity Leave:
o What is given?
Seven days of paternity leave with full pay to married
male employees in the private/public sectors
Are these 7 working days or 7 calendar days?
• No. 7 calendar days.
o What are the conditions to entitlement?
1. Married male employee and is employed when the
child is born
2. Cohabiting with his legitimate spouse when she
gives birth or suffers miscarriage
3. Applied for paternity leave according to rules 4. Wife gave birth or suffered miscarriage
• Is abortion included?
o No, not anymore.
o For how many deliveries is paternity leave valid?
First 4 deliveries
What is Solo Parent Leave?
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o A solo parent employee who has rendered service for at least
one year shall be given parental leave of not more than 7
working days
o What does a “solo parent” cover?
Women who gave birth as a result of rape
Widow or widower
Spouse separated legally or de facto for at least one
year
o What must the solo parent prove?
He or she is left alone with responsibility of
parenthood
o What must he or she show?
Solo parent identification card issued by a
representative of the DSWD
• What is the Battered Woman Leave (BWL) under RA 9262?
o A victim of physical, sexual, or psychological violence can
apply for the issuance of a “protection order.” In addition to
other reliefs, if she is an employee, she is entitled to a paid
leave of up to 10 days in addition to other leaves.
o Is it extendible?
Yes, when necessity arises as specified in the
protection order.
o What is a pre-requisite?
Must submit certification from punong brgy, kagawad,
prosecutor, or clerk of court that an action under RA
9262 has been filed and is pending
o Is use of the 10 day leave mandatory?
No. It’s up to the woman employee.
It can be used for days where she attends to medical
and legal concerns.
Are unused leave days convertible to cash or
cumulative?
• No.
o What if the employer refuses to implement BWL?
Liable under RA 9262.
o How is recovery of BWL benefits enforceable?
Under Art. 129, with the Regional Director (same
provision as simple money claims)
SERVICE CHARGES
What is the rate of distribution for service charges collected by
establishments?
o 85% to all covered employees – distributed equally among
employees, regardless of position or rank
How often is distribution?
Once or twice a month
o 15% to management
What is the integration rule?
o
If service charge is abolished, the share of covered employeesis considered integrated in their wages
What is covered by the 15% management share?
o To answer for losses and breakages, or it can be distribution to
managers at management’s prerogative
13TH MONTH PAY
• What is the rule on 13th month pay?
o It is required by law. It is not part of the basic wage, but it is
based on that wage.
• What is the value of the 13th month pay?
o It is 1/12 of total salary earned within a calendar year.
Are other bonuses included in the base rate?
• No. Just the regular wage.
When is it paid?
• Not later than December 24
What is not part of the “basic salary” base?
1. Cost of living allowances
2. Profit-shares
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3. All allowances and monetary benefits not
integrated in the basic salary
• Who is entitled to 13th month pay?
o All rank and file employees regardless of designation and
status – as long as they worked at least one month in that year
o And irrespective of method of payment (even piece-rate
employees)
o What about managerial employees?
Excluded by law, but can be included by stipulation
• What if an employee is terminated or has resigned before payment
of 13th month pay?
o Entitled to 1/12 of what he has earned anyway
• Which employers are exempted?
o 1. Government/GOCCs (usual)
o 2. Employers of household helpers
o 3. Employers of those under the personal service of anothero 4. Employers of those paid on commission, boundary, or end-
result basis
Except: piece-rate workers, who are covered
What is the rule on commissions?
• If the commissions may properly be
considered as part of the basic salary, then
it’s covered by 13th month pay
• If it’s not part of the basic salary, it’s excluded
o 5. Those already paying 13th month pay or its equivalent
Check intent of the bonus to see if it is credited as inlieu of the 13
th month pay or if it’s additional
o N.B. This is almost the usual enumeration + those who already
get an equivalent. Managers may or may not be given (see
above).
o EXCEPT field workers are supposed to be given 13th month
pay, because this provision is not re: hours of work.
• What if someone has multiple employers?
o Can get 13th month pay from all private employers, regardless
of total earnings
Summary of exemptions:
Hours of
work
NSD Wages Holiday
pay
SIL 13th MP
Govt,
GOCCs
Govt,
GOCCs
Farm
tenancy/
leasehold
Govt,
GOCCs
Govt,
GOCCs
Govt,
GOCCs
Managers Managers Cottage
industries
Managers Managers Managers
(may still
be given)
Field
personnel
Field
personnel
BMBE Field
personnel
Field
personnel
DH DH DH DH DH DH
Supported
family
members
Supported
family
members
Supported
family
members
Supported
family
members
Supported
family
members
Personal
service
Personal
service
Personal
service
Personal
service
Personal
service
Paid by
results
Paid by
results
Paid by
results
Paid by
results
Paid by
results
Only up to
5 EEs
Only up to
10 EEs
Only up to
10 EEs
Exempted
by Labor
Sec
Already
have SIL
Already
have 13th
MP
With paid
VL of at
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least 5
days
Compulsory OT work Compulsory rest day work
War or emergency War or emergency
Prevent loss or imminent danger Prevent loss or imminent danger
Urgent work on equipment Urgent work on equipment
Prevent loss or damage to
perishables
Prevent loss or damage to
perishables
Completion of work to avoid
prejudice
Completion of work to avoid
prejudice
Favorable weather conditions Favorable weather conditions
Abnormal pressure to work due to
special circumstances
WOMEN WORKERS
What is the non-discrimination rule?
o Cannot discriminate against a woman as to terms and
conditions of employment solely due to her sex
o What are the reliefs available?
Criminal action
Civil action for money claims, with damages, and
other affirmative reliefs
Are these mutually exclusive?
No. They proceed independently of each
other.
Are stipulations against marriage allowed?
o No. An employee cannot be hired with the condition that she
does not get married, or be terminated due to marriage
What are the prohibited acts?
o 1. Deny a woman employee benefits here or discharge her to
prevent her from enjoying the benefits
o 2. Discharge a woman due to pregnancy, or while on maternity
leave
o 3. Discharge or refuse to re-admit a woman after leave
What is the special rule on classification?
o Woman who is permitted or suffered to work, with or without
compensation in night clubs, massage clinics, bars (and similar
establishments), if under effective control/supervision of the
employer considered an employee of such establishment
o For what purposes?
Labor and social legislation
Who may be a victim of sexual harassment?
o Either a male or female
When is sexual harassment committed?
o When a person demands, requests, or requires sexual favor
from another
Must it be put in an oral or written statement?
No, it can be by inference
o Who may commit sexual harassment?
Anyone with authority, influence, or moral ascendancy
over the person harassed
o Where may it happen?
In work,
training,
or education environmento What if the person harassed refused the demand, request,
or requirement?
It does not matter. It’s still sexual harassment.
MINOR WORKERS
• Where can minors from 15 to below 18 be hired?
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o For any employment, as long as it is non hazardous. A person
has to be at least 18 years old to perform hazardous work
o Give examples of hazardous workplaces:
Exposed to contaminants
Construction, logging, fire-fighting, mining,
mechanized farming, deep sea fishing, etc.
Handling explosives or pyrotechnics
Using heavy equipment or machinery
Using power tools
o What are the allowed working hours?
Not more than 40 hours a week, no more than 8 hours
a day
No work from 10 pm – 6 am
N.B. in other words, no OT, no night shift
Can children below 15 be employed?
o No, except under very strict conditionso What are these exceptions?
1. The child works directly under the sole
responsibility of his/her parents/guardian and where
only members of the family are employed, and as long
as:
The child’s safety, life, health, or morals are
not endangered
• Does not impair child’s normal development
• Parent or guardian gives primary/secondary
education to the child 2. Child actors or talents, as long as:
• Employment contract is concluded by
parents or guardian with express agreement
of child, and if possible, DOLE approval
• The child’s safety, morals, health are not
endangered
• Employer takes measures to prevent child
exploitation or discrimination – taking into
account remuneration, duration, and working
time
• Implement continuing skills and training
acquisition program for the child
o What is required for these two situations?
The employer must secure a work permit from DOLE
o What are the allowed working hours?
No more than 20 hours a week, no more than 4 hours
a day
No work from 8 pm – 6 am
What does RA 7323 provide?
o Employers can hire at least 50 students during vacation period
and pay those students only 60% of their wages, and 40%
through education vouchers to be paid by government
o But the wages must meet the legal minimum
What are the prohibitions on employment of children in certain
advertisements?
o Cannot be employed as model in advertisements for alcoholic
beverages, tobacco, gambling, violence, or pornography
What are the worst forms of child labor?
o 1. Slavery
o 2. Prostitution
o 3. Production and trafficking of dangerous drugs and prohibited
substances
o 4. Work which by its nature or circumstances in which it is
carried is hazardous or harmful to health, safety, morals of
children
EMPLOYMENT OF HOUSE HELPERS
• What are house helpers?
o Those providing services in the employer’s home which is
usually necessary and desirable for the maintenance and
enjoyment thereof
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Includes ministering personal comfort and
convenience of the members of the household
Including family drivers
o Is a driver, laundrywoman, houseboy, etc. who works in
company staff-houses a house helper?
No. He or she is an industrial worker and must be
paid the industrial rate
o What is the criterion?
Personal comfort and enjoyment of the family of the
employer in the home of said employer
• What benefits are accorded house helpers?
o 1. Minimum wage
o 2. Cannot be assigned to work in commercial, industrial, or
agricultural enterprise at a wage lower than what is prescribed
o 3. What if the house helper is less than 18 years old?
If the house helper is less than 18 years old, the
employer must afford opportunity for at least
elementary education
Cost of education is part of the helper’s compensation
o 4. Must be treated in just and humane manner. No physical
violence must be used.
o 5. Free lodging, board, and medical attendance
o 6. Upon termination, given a written statement of the nature
and duration of the service and his/her efficiency as house
helper (employment certification)
o 7. Contract does not exceed 2 years (renewable)
o 8. Funeral expenses paid by employer if house helper has no
relatives with sufficient means in the place
• What are the hours of work allowed?
o Not to work for more than 10 hours a day
If the house helper agrees to work OT and there is
additional compensation, it is permissible
What is the vacation privilege?
o Right to 4 days vacation each month with pay. Failure to use
this does not allow accumulation – the helper can just get
monetary value.
• What if the period of household service is fixed?
o Cannot be terminated before end of the period without just
cause
o What if a house helper is unjustly dismissed?
Paid compensation already earned plus that of 15
days indemnity
o What if a house helper leaves without justifiable reason?
Forfeits unpaid salary not exceeding 15 days
What if the period of household service is not fixed?
o He must give 5 days notice before intended date of termination
EMPLOYMENT OF HOME WORKERS
• What is a homeworker?
o Any person who performs industrial homework for an employer,
contractor, or sub-contractor
• Under what circumstances are persons considered employers of
homeworkers?
o 1. Delivers or causes to be delivered any goods to be
processed or fabricated in or about a home and then returned
or disposed of or distributed according to his directions
o 2. Sells goods to be processed or fabricated in or about a
home and then re-buys them after such processing• Who can be deemed an employer of homeworkers?
o Any person, natural or artificial
o For his account or benefit, or on behalf of a non-resident
o Directly or indirectly
• Can industrial home workers form a labor organization?
o Yes.
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• What are the conditions before there can be deductions from a
homeworker’s income, due to loss, damage, or destruction to
materials?
o 1. Homeworker is clearly shown to be responsible for the loss
o 2. Employee is given reasonable opportunity to explain
o 3. Amount of deduction is fair and reasonable and not exceed
loss/damage
o 4. Deduction is made such that it does not exceed 20% of the
earnings in a week
o N.B. this is the same rule for breakages for regular employees
• What is the nature of the liability of the employer vis-à-vis the
contractor and the latter’s homeworkers?
o Same as in an independent contracting arrangement. The
provisions for homeworkers must be inserted in the contract.
o The employer is held liable when there is failure to pay wages
by the contractor.
• Prohibitions for homework:
o 1. Explosives, fireworks, similar articles
o 2. Drugs and poisons
o 3. Articles where processing involves exposure to toxic
substances
APPRENTICES AND LEARNERS
• What is an apprenticeable occupation?
o
Any trade, form of employment, or occupation which requiresmore than 3 months of practical training on the job
supplemented by theoretical instruction
o Involving a contract between the apprentice and employer, on
an approved apprenticeable occupation by the TESDA
• Who may employ apprentices?
o Only employers in highly technical industries AND approved by
the DOLE
• Who can qualify as an apprentice?
o 1. At least 14 years of age
o 2. With vocational aptitude and capacity for appropriate tests
o 3. And possesses the ability to comprehend and follow
written/oral instructions
• What is the maximum period of apprenticeship?
o 6 months
• Can there be payment of less than the minimum wage?
o Yes, but not below 75% and it must be pursuant to an approved
apprenticeship program approved by the DOLE
• What if there is no prior approval of the DOLE?
o The “apprentice” is in fact a regular employee.
• What are the possible venues of the program?
o 1. Entirely within the sponsoring firm
o 2. In a DOLE training facility
o 3. In a training facility, and then in the sponsoring firm
•
What is the remedy for violation of apprenticeship agreement?o Complaint filed with DOLE
o Appeal within 5 days from receipt of decision to Sec. of Labor
• What the conditions for tax deductibility of training costs?
o 1. The program must be approved by the DOLE
o 2. The deduction must not exceed 10% of direct labor wage
o 3. The apprentices are paid at least the minimum wage
o How much can be deducted?
½ of value of labor training expenses
• When can apprentices be hired without compensation?
o When training on the job is required by the school or
curriculum, or as a requisite for graduation/board examination• Are students who work for the school for free education deemed
employees?
o No, as long as they are given real opportunities to finish their
chosen courses
o What if the student causes damage to a third person in the
course of these duties?
The school will be deemed an employer.
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The school is only not deemed an employer as
regards labor regulations, rest periods, etc.
• What are learners?
o Persons hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable
o And which may be learned through practical training on the job
in a relatively short period of time, not exceeding 3 months
• When can learners be hired?
o 1. When no experienced workers are available
o 2. Necessary to prevent curtailment of employment
opportunities
o 3. Does not create unfair competition in terms of labor costs or
standards
• Contents of learnership agreement?
o 1. Names and addresses of learners
o 2. Duration of learnership period (at most, 3 months)o 3. Wages and salaries of learners, which must be at least 75%
of minimum wage
What if the learners are in piecework?
• Must be paid in full for the work done
o 4. Commitment to employ the learners if they want as regular
employees after the period
o When are learners automatically deemed regular
employees?
When they have worked for at least 2 months and
then training is terminated by the employer before theend of the stipulated period, through no fault of the
learner
Contrast:
Apprenticeship Learnership
Highly skilled or technical jobs Semi-skilled job or industry
Not learnable in less than 3 months Learnable in less than 3 months
Approved by DOLE No such requirement
No commitment to hire after
termination of period (no certainty it
will be learned)
Commitment to hire after termination
of period
HANDICAPPED WORKERS
• Who are handicapped workers under the LC?
o Those whose earning capacity is impaired by age or
physical/mental deficiency or injury, disease, or illness
o What if the disability is not related to the work performed?
Then the employee will not be considered a
handicapped worker
Who are handicapped persons under RA 7277 (Magna Carta for
Disabled Persons)?
o Those suffering from restriction or different abilities as a resultof mental, physical, or sensory impairment, to perform an
activity in the manner or within the range considered normal for
a human being
What is the rule on non-discrimination?
o No disabled person can be denied access to opportunities for
employment
o If qualified, must be hired under same terms, privileges,
benefits, etc.
• What are the reserved positions for handicapped workers?
o 5% of all casual, emergency, and contractual positions inDSWD, DOH, Dep Ed, and other government agencies
engaged in social development
o What if suitable employment for handicapped persons
cannot be found through open employment?
State endeavors to provide sheltered employment
o Can handicapped workers be hired as learners or
apprentices?
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Yes, if their handicap is not such as to effectively
impede performance in the job for which they are
hired
• What are the incentives given to employers of handicapped
persons?
o 1. Tax deduction from employer’s gross income of up to 25% of
amount paid as salaries to handicapped workers
Must present proof of employment
And DOLE certification of worker’s disability
o 2.Tax deduction from employer’s gross income of up to 50% of
direct costs for improvement of facilities for handicapped
workers
But does not include improvements under BP 344
(Accessibility Law)
TERMINATION OF EMPLOYMENT
EMPLOYER-EMPLOYEE RELATIONSHIP
• Why is it important to determine EER?
o It determines the legal relationship between the parties, and
their rights and obligations.
How do you determine whether there is an EER?
o Four-fold test 1. Selection and hiring
2. Payment of wages
3. Power to dismiss the employee
4. Control over how the employee performs his
functions
o Does it matter what kind of system for payment of wages
is present (e.g. by compensation)?
No. EER is not determined by basis of employee’s
compensation, because “wage” is paid no matter how
designated.
o What is the most important?
Control (#4)
o How do you determine when there is control?
Determine how the employee performs the functions
(manner and means used), not just the end product
There is no control under the EER if the employer just
says the end product or goal
o What about employees working outside the facilities, are
they still under control of the employer?
They still can be under the control of the employer.
Ex. taxi cab drivers.
Distinguish giving details on the work, supervision on the manner
of doing the work:
o Instructions, no matter how detailed, may not actually indicate
control. If the details pertain to the product itself, then you are
not controlling the work. (Ex. you say that you want a barong
that has gold buttons, long sleeves, made of a certaintela,
etc.)
o If the details pertain to the work itself, there is control.
o N.B. So reporting about collections, or progress of the chair
being constructed these reports are really just about the end
product, and do not indicate control. So even reports do not
always indicate control.
o What if the alleged employee works more or less at his
own pleasure and is not subject to definite
hours/conditions of work, and is compensated for the end
result only?
No EER.
o X was an insurance agent required to solicit business
exclusively for Company Y. Is this control?
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It may seem like it, but it’s not. In this case, the
exclusivity clause stems from an Insurance Memo
Circular, to protect the public. There was no intention
by Corp Y to exercise control over the method and
manner by which X sells insurance. Should the power be exercised?
o No, need not be. Just as long as it’s available.
o How can you prove it if it’s not exercised?
If there is a written agreement, you can point to
certain provisions.
o What if there is no written contract or any proof of the
instructions given?
Usually you can prove it by the fact that he is within
the company premises. That his presence is required
by the company, and he is given an ID, are strong
indicators. Working in a place controlled by the
employer is a good indicator.
In the above examples, there are only two parties. But if there are
multiple parties involved and there are multiple suspected
employers, how do you determine who the employer is?
o Control is the strongest factor. For instance, A hires, B fires, C
pays, and D controls. D is the employer.
What is the subordinate test?
o “Economic Relations Test” – existing economic conditions
between the parties are used to determine whether EER exists:
1. Payment of pag-ibig contributions
2. Payment or remittance of contributions to the State
Insurance Fund
3. Deduction of withholding tax
4. Deduction or remittance of SSS contributions
o W/N the employee is dependent on the alleged employer for
his continued employment in that line of business
What is the value of ID cards?
o It’s not just a security measure but it usually mainly identifies
the holder as a bona fide employee of the corporation.
What are the special cases?
o 1. No EER between students and their school if there is written
agreement that the student works in exchange for free
education and the student is given real opportunity to finish the
course
o 2. There is EER between resident physicians and training
hospital UNLESS there is training agreement between them
and it is duly accredited by the government
PROBATIONARY EMPLOYMENT
Do all regular employees have to start as probationary employees?
o No. There is only probationary employment when there is an
agreement for probationary employment.
o But for probationary employees, after the lapse of the period,
he/she becomes a regular employee.
• What should the agreement contain?
o 1. Apprise employee of the nature of employment
o 2. Inform employee of standards to be met to become regular
How long should the probationary period be?
o Six months. It cannot go beyond the six month period. It is
non-extendible.
o What are the exceptions?
1. Covered by an apprenticeship program stipulatinglonger period
2. Voluntary agreement of parties (esp. when the
nature of work requires longer period)(Mariwasa v.
Leogardo)
3. Employer gives employee a second chance to pass
the standards test
What will make the probationary employment invalid?
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o If the employer did not give reasonable standards for the
employee to meet within that period.
o The standards have to be given at the start of the employment.
o What is the legal effect of this?
The employee becomes regular.
Before you reach the end of the probationary period, can you still
terminate the employee on the grounds for which a regular
employee may be terminated?
o Yes.
When will the employee become regular?
o Evaluate within the period.
o If there is no evaluation and he is hired beyond the period, then
he becomes a regular employee.
You start a probationary work agreement, and the six month period
ended. The employee continues working. There is no evaluation
yet. What is the legal implication?
o He becomes a regular employee.
o At what point?
As soon as you go beyond the six month period.
• How do you count six months?
o There are conflicting decisions, but Atty. MM prefers the same
day from the sixth month from when you started employment
(Jan. 3 July 3)
o Although there is another case that says 180 days.
• Can a person who has been promoted be probationary again?
o No. Only probationary as to the position, but you can never beprobationary as to employment in general again.
• What are the requirements for private school teachers to acquire
permanent employment?
o 1. The teacher is full-time
o 2. Must have rendered three consecutive years of service
o 3. The service must be satisfactory
KINDS OF EMPLOYMENT
Regular employees
When is an employee regular?
o When he performs tasks that areusually necessary and
desirable to the business.
How does “usually necessary and desirable” here compare to
“directly related” in contracting arrangements?
o “Necessary and desirable” here applies to class of
employment, and “directly related” in contracting only relates to
whether there is an employer-employee relationship.
A worker who performs work usually necessary and desirable to
the company becomes an employee of the company. T/F?
o False. The conclusion is off-tangent.
o You use the necessity and desirability test to determine what
class of employee he is, and not whether or not he is an
employee.
o To determine employer-employee relationship, you apply the
four-fold test.
There is a company with security guard A, and security guard B.
Can it be that A is a regular employee, and B is not because he was
hired by a contractor?
o Yes, this is legally possible.
o But isn’t the nature of the work of the employee the
determinant?
Yes. But you determine the nature of his work in
relation to the contractor.
How do you determine if a particular work is usually necessary and
desirable, hence leading to regular employment?
o Look at the nature of the business of the employer
o What if an employee is tasked to perform a job for at least
one year already?
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Performance of a job for at least a year – evidence
that the job is necessity and indispensable for
business
• How can a regular employee be terminated?
o For just or authorized causes only
Casual employee
Who is a casual employee?
o One doing work not “usually necessary or desirable” to the
employer, and is not project nor seasonal
When do they become regular employees?
o After one year of service, continuous or broken.
o He becomes regular as to the activity for which he is employed
and is regular as long as the activity exists
o
When does one year period vest?
NOT your one year anniversary.
It must be “cumulative period of service” of one year.
Fixed term employment
• What are the requisites?
o 1. They should have agreed upon a time frame for when work
must be done
How is this different from project?
• Fixed term is time bound, project is task
bound. Fixed term does not care if the
project or job is done.
o 2. The agreement was voluntarily entered into by parties
Consider level of parity
o 3. Employment scheme is not designed to circumvent the
law/Labor Code
• What if the job is usually necessary and desirable to the business
of the employer?
o The employee is deemed regular
• If all the employees are fixed-term, it is proof of illegality, because the
employer is seemingly circumventing the law.
• Is there a conversion?
o If you work beyond this period, you become regular
• Rememberthe general rule: you are regular if you are not covered by a
special agreement. If you are hired but not placed under a special
category, you are regular.
Seasonal employees
When will seasonal employees become regular?
o After repeated rehiring.
What if after harvesting season, they still work FOR the employer
but doing other seasonal tasks (ex. harvesting then the next
season, drying)?
o They become regular.o If you are employed throughout the year, doing different tasks,
although all are seasonal, you are regular.
What is the status of seasonal workers who are called to work from
time to time and are not made to work during off-season?
o They are not separated from service. They are considered on
leave until re-employed. They are seasonal workers.
o But if they have repeatedly done that job for years, they
become regular.
Project employees
What are project employees?
o They are hired for a specific undertaking or project.
o His employment ends after the project ends.
o They cannot be terminated without just cause before the
project ends.
o What is the “day certain” rule?
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It ends on a certain date, but not an exact date – just
upon completion of project
• If there is a construction project ongoing, can we assume the
construction workers are project employees?
o No, it doesn’t follow.
What is an example of a project within a company that is different
from its main line of business?
o Mango Orchard owner hiring workers to build a water pipeline
for irrigation.
When can project employees become regular employees?
o Working beyond the project
o Repeated rehiring, for the same task or tasks that are
necessary for the business
o Is a second project a repeated rehiring?
No, it’s the first rehiring. A third project will be the first
instance of repeated rehiring.
Is the date material?
o Not always, because it can also be another determinant, such
as the completion of the project, even if the date is not
determinable.
o What if there is no such given standard?
Considered a r