2012 Bar Reviewer in Labor Law

7/28/2019 2012 Bar Reviewer in Labor Law

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A. FUNDAMENTAL PRINCIPLES AND POLICIES

1. ConstitutionalProvisions

a. Article II - Declaration of Principles and State Policies

The State shall promote a just and dynamic social order that will ensure theprosperity and independence of the nation and free the people from poverty throughpolicies that provide adequate social services, promote full employment, a rising standard ofliving, and an improved quality of life for all.1

The State shall promote social justice in all phases of national development.2

The State values the dignity of every human person and guarantees full respect forhuman/rights.3

The State recognizes the vital role of the youth in nation-building and shall promoteand protect their physical, moral, spiritual, intellectual, and social well-being. It shallinculcate in the youth patriotism and nationalism, and encourage their involvement inpublic and civic affairs.4

The State recognizes the role of women in nation-building, and shall ensure thefundamental equality before the law of women and men.5

The State affirms labor as a primary social economic force. It shall protect the rightsof workers and promote their welfare.6

The State recognizes the indispensable role of the private sector, encourages privateenterprise, and provides incentives to needed investments.7

b. Article IIIBill of Rights

No person shall be deprived of life, liberty, or property without due process of law,nor shall any person be denied the equal protection of the laws.8

No law shall be passed abridging the freedom of speech, of expression, or of thepress, or the right of the people peaceably to assemble and petition the government forredress of grievances.9

1Sec. 9

2Sec.10

3Sec.11

4Sec. 13

5Sec. 14

6Sec. 18

7Sec. 20

8Sec. 1.


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The right of the people, including those employed in the public and private sectors,to form unions, associations, or societies for purposes not contrary to law shall not beabridged.10

c. Article XIII

The Congress shall give highest priority to the enactment of measures that protectand enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth andpolitical power for the common good. To this end, the State shall regulate the acquisition,ownership, use, and disposition of property and its increments.11

The promotion of social justice shall include the commitment to create economicopportunities based on freedom of initiative and self-reliance.12

The State shall afford full protection to labor, local and overseas, organized and

unorganized, and promote full employment and equality of employment opportunities forall. It shall guarantee the rights of all workers to self-organization, collective bargaining andnegotiations, and peaceful concerted activities, including the right to strike in accordancewith law. They shall be entitled to security of tenure, humane conditions of work, and aliving wage. They shall also participate in policy and decision-making processes affectingtheir rights and benefits as may be provided by law. The State shall promote the principleof shared responsibility between workers and employers and the preferential use ofvoluntary modes in settling disputes, including conciliation, and shall enforce their mutualcompliance therewith to foster industrial peace. The State shall regulate the relationsbetween workers and employers, recognizing the right of labor to its just share in the fruitsof production and the right of enterprises to reasonable returns to investments, and to

expansion and growth.13

The State shall protect working women by providing safe and healthful workingconditions, taking into account their maternal functions, and such facilities andopportunities that will enhance their welfare and enable them to realize their full potentialin the service of the nation.14

9Sec. 4.

10Sec. 8.

11Sec. 1.

12Sec. 2.

13Sec. 3.

14Sec. 14.


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2. New Civil Code

The relations between capital and labor are not merely contractual. They are so

impressed with public interest that labor contracts must yield to the common good.Therefore, such contracts are subject to the special laws on labor unions, collectivebargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor andsimilar subjects.15

3. Labor Code

The State shall afford protection to labor, promote full employment, ensure equalwork opportunities regardless of sex, race or creed and regulate the relations betweenworkers and employers. The State shall assure the rights of workers to self- organization,collective bargaining, security of tenure, and just and humane conditions of work.16

A. It is the policy of the State:

(a) To promote and emphasize the primacy of free collective bargaining andnegotiations, including voluntary arbitration, mediation and conciliation, as modes ofsettling labor or industrial disputes;

(b) To promote free trade unionism as an instrument for the enhancementof democracy and the promotion of social justice and development;

(c) To foster the free and voluntary organization of a strong and united labormovement;

(d) To promote the enlightenment of workers concerning their rights andobligations as union members and as employees;

(e) To provide an adequate administrative machinery for the expeditioussettlement of labor or industrial disputes;

(f) To ensure a stable but dynamic and just industrial peace; and

(g) To ensure the participation of workers indecision and policy-makingprocesses affecting their rights, duties and welfare.

B. To encourage a truly democratic method of regulating the relations between theemployers and employees by means of agreements freely entered into through collective

15Art. 1700

16Art. 3


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bargaining, no court or administrative agency or official shall have the power to set or fixwages, rates of pay, hours of work or other terms and conditions of employment, except asotherwise provided under this Code.17

Definitions.

Commission The National Labor Relations Commission or any of itsdivisions, as the case may be.

Bureau The Bureau of Labor Relations and/or the Labor RelationsDivisions in the regional offices established underPresidential Decree No. 1, in the Department of Labor.

Board The National Conciliation and Mediation Board establishedunder Executive Order No. 126.

Council The Tripartite Voluntary Arbitration Advisory Councilestablished under Executive Order No. 126, as amended.

Employer Includes any person acting in the interest of an employer,directly or indirectly. The term shall not include any labororganization or any of its officers or agents except when

acting as employer.

Employee Includes any person in the employ of an employer. Theterm shall not be limited to the employees of a particularemployer, unless the Code so explicitly states. It shallinclude any individual whose work has ceased as a result ofor in connection with any current labor dispute or becauseof any unfair labor practice if he has not obtained any othersubstantially equivalent and regular employment.

Labor organization Any union or association of employees which exists inwhole or in part for the purpose of collective bargaining orof dealing with employers concerning terms and conditionsof employment.

17Art. 211


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Legitimate labor organization Any labor organization duly registered with the Departmentof Labor and Employment, and includes any branch orlocal thereof.

Company union Any labor organization whose formation, function oradministration has been assisted by any act defined asunfair labor practice by this Code.

Bargaining representative A legitimate labor organization whether or not employedby the employer.

Unfair labor practice Any unfair labor practice as expressly defined by the Code.

Labor dispute Includes any controversy or matter concerning terms andconditions of employment or the association orrepresentation of persons in negotiating, fixing,maintaining, changing or arranging the terms andconditions of employment regardless of whether thedisputants stand in the proximate relation of employer andemployee.

Managerial employee

Supervisory employees

Rank-and-file employees

One who is vested with the powers or prerogatives to lay

down and execute management policies and/or to hire,transfer, suspend, lay-off, recall, discharge, assign ordiscipline employees

Those who, in the interest of the employer, effectivelyrecommend such managerial actions if the exercise of suchauthority is not merely routinary or clerical in nature butrequires the use of independent judgment.

All employees not falling within any of the abovedefinitions.

Voluntary Arbitrator Any person accredited by the Board as such or any personnamed or designated in the Collective BargainingAgreement by the parties to act as their VoluntaryArbitrator, or one chosen with or without the assistance ofthe National Conciliation and Mediation Board, pursuant toa selection procedure agreed upon in the Collective


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18Art. 212

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Bargaining Agreement, or any official that may beauthorized by the Secretary of Labor and Employment toact as Voluntary Arbitrator upon the written request andagreement of the parties to a labor dispute.

Strike Any temporary stoppage of work by the concerted actionof employees as a result of an industrial or labor dispute.

Lockout Any temporary refusal of an employer to furnish work as aresult of an industrial or labor dispute.

Internal union dispute Includes all disputes or grievances arising from anyviolation of or disagreement over any provision of theconstitution and by-laws of a union, including any violationof the rights and conditions of union membership providedfor in this Code

Strike-breaker Any person who obstructs, impedes, or interferes with byforce, violence, coercion, threats, or intimidationany peaceful picketing affecting wages, hours or conditionsof work or in the exercise of the right of self-organizationor collective bargaining.

Strike area The establishment, warehouses, depots, plants or offices,including the sites or premises used as runaway shops, ofthe employer struck against, as well as the immediatevicinity actually used by picketing strikers in moving to andfro before all points of entrance to and exit from saidestablishment.18

The labor organization designated or selected by the majority of the employees in anappropriate collective bargaining unit shall be the exclusive representative of the employeesin such unit for the purpose of collective bargaining.

However, an individual employee or group of law to the contrary notwithstanding,workers shall have the right, subject to such rules and regulations as the Secretary of Laborand Employment may promulgate, to participate in policy and decision-making processes ofthe establishment where they are employed insofar as said processes will directly affect theirrights, benefits and welfare.


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19Art. 255

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For this purpose, workers and employers may form labor-management councils:Provided, That the representatives of the workers in such labor-management councils shallbe elected by at least the majority of all employees in said establishment.19


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25Art. 38

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B. RECRUITMENT AND PLACEMENT

1. Recruitment of Local and Migrant Workers

a. Recruitment and placement;20 defined

1. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiringor procuring workers; and

2. Includes referrals, contact services, promising or advertising for employment,locally or abroad, whether for profit or not.21

Any person or entity which, in any manner, offers or promises for a feeemployment to 2 or more persons22 is deemed engaged in recruitment and placement

b. Illegal Recruitment23

Under the Labor Code:

Any recruitment activities, including the prohibited practices enumerated underArticle 3424 of this Code, to be undertaken by non-licensees or non-holders of authority.

Illegal recruitment when committed by a syndicate or in large scale shall beconsidered an offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group ofthree (3) or more persons conspiring and/or confederating with one another in carrying out

any unlawful or illegal transaction, enterprise or scheme.

Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.25

20Some relevant principles:

Mere impression that recruiter is capable of providing work abroad is sufficient.

"Referral" of recruits also constitutes recruitment activity.

Absence of receipt to prove payment is not essential to prove recruitment.

Only one (1) person recruited is sufficient to constitute recruitment.

Non-prosecution of another suspect is not material.

A person convicted for illegal recruitment may still be convicted for estafa21

Art. 13 [b]22

Ibid.23

Art. 38 (Local), Sec. 6, Migrant Workers Act, R.A. 804224

See Reference


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Under R.A. 804226

Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, orprocuring workers and includes referring, contract services, promising or advertising for

employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority.27 Any such non-licensee or non-holder28who, in any manner, offers orpromises for a fee employment abroad to two or more persons shall be deemed so engaged.

It shall likewise include the following acts, whether committed by any person,whether a non-licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that specified inthe schedule of allowable fees prescribed by the Secretary of Labor and Employment, or tomake a worker pay or acknowledge any amount greater than that actually received by him asa loan or advance;

(b) To furnish or publish any false notice or information or document in relation torecruitment or employment;

(c) To give any false notice, testimony, information or document or commit any actof misrepresentation for the purpose of securing a license or authority under the LaborCode, or for the purpose of documenting hired workers with the POEA, which include theact of reprocessing workers through a job order that pertains to nonexistent work, workdifferent from the actual overseas work, or work with a different employer whetherregistered or not with the POEA;

(d) To include or attempt to induce a worker already employed to quit his

employment in order to offer him another unless the transfer is designed to liberate a workerfrom oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ anyworker who has not applied for employment through his agency or who has formed, joinedor supported, or has contacted or is supported by any union or workers' organization;

(f) To engage in the recruitment or placement of workers in jobs harmful to publichealth or morality or to the dignity of the Republic of the Philippines;

(h) To fail to submit reports on the status of employment, placement vacancies,

remittance of foreign exchange earnings, separation from jobs, departures and such othermatters or information as may be required by the Secretary of Labor and Employment;

26as amended by R.A. 10022

27under Art. 13 (f)

28Any person, corporation or entity:

1. Which has not been issued a valid license or authority to engage in recruitment and placement

by the Secretary of Labor and Employment (SLE) or

2. Whose license or authority has been suspended, revoked or cancelled by the POEA or the SLE


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(i) To substitute or alter to the prejudice of the worker, employment contractsapproved and verified by the Department of Labor and Employment from the time of actualsigning thereof by the parties up to and including the period of the expiration of the samewithout the approval of the Department of Labor and Employment;

(j) For an officer or agent of a recruitment or placement agency to become an officeror member of the Board of any corporation engaged in travel agency or to be engageddirectly or indirectly in the management of travel agency;

(k) To withhold or deny travel documents from applicant workers before departurefor monetary or financial considerations, or for any other reasons, other than thoseauthorized under the Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy a contracted worker without valid reason as determinedby the Department of Labor and Employment;

(m) Failure to reimburse expenses incurred by the worker in connection with hisdocumentation and processing for purposes of deployment, in cases where the deploymentdoes not actually take place without the worker's fault. Illegal recruitment when committedby a syndicate or in large scale shall be considered an offense involving economic sabotage;and

(n) To allow a non-Filipino citizen to head or manage a licensedrecruitment/manning agency.

Illegal recruitment is deemed committed by a syndicate if carried out by a group ofthree (3) or more persons conspiring or confederating with one another. It is deemed

committed in large scale if committed against three (3) or more persons individually or as agroup.

(a) License29vs. Authority

License Authority

A document issued by the Department ofLabor authorizing a person or entity tooperate a private employment agency.

A document issued by the Department ofLabor authorizing a person or association toengage in recruitment and placement

activities as a private recruitment entity.

29No license or authority shall be used directly or indirectly by any person other than the one in whose

favor it was issued or at any other place other than that stated in the license or authority, nor may such

license or authority be transferred, conveyed or assigned to any other person or entity.

Licensees or holders of authority or their duly authorized representatives may, as a rule, undertake

recruitment and placement activities only at their authorized official addresses.

Change of ownership or relationship of single proprietorship licensed to engage in overseas employment

shall cause the automatic revocation of the license.


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(b) Essential elements of illegal recruitment

1. Offender is a nonlicensee or nonholder of authority to lawfully engage in therecruitment/placement of workers

2. Offender undertakes:

a. Any act of canvassing, enlisting, contracting, transporting, utilizing,hiring or procuring workers, and includes referrals, contact services, promising oradvertising for employment, locally or abroad, whether for profit or not;30 or

b. Any of the prohibited practices under Art. 34.31

(c) Simple illegal recruitment

When it involves less than three (3) victims or recruiters.

(d) Illegal recruitment in large scale32

(e) Illegal recruitment as economic sabotage

When it is committed::

By a syndicate In large scale

If carried out by a group of 3 or morepersons conspiring and confederating withone another;

If committed against 3 or more personsindividually or as a group

30Art. 13[b]

31supra

32infra


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(f) Illegal Recruitment vs. Estafa33

Illegal recruitment Estafa

Malum prohibitum, thus:

1. Criminal intent is not necessary

2. A crime which involves moral turpitude

Malum in se,thus:

1. Criminal intent is necessary

2. A crime which involves moral turpitude

It is not required that it be shown that therecruiter wrongfully representedhimself as a licensed recruiter.34

Accused defrauded another by abuse ofconfidence, or by means of deceit.35

Illegal recruitment and estafa cases may be filed simultaneously or separately. The filing ofcharges for illegal recruitment does not bar the filing of estafa, and vice versa.

Double jeopardy will not set in

(g) Liabilities

(a) Local employment agency(b) Foreign employer

They are jointly and severally liable for any violation of the recruitmentagreement and the contracts of employment.36

33under Art. 315, par. 2, RPC.

Estafa is committed by any person who defrauds another by using fictitious name, or falsely pretends to

possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or

by means of similar deceits executed prior to or simultaneously with the commission of fraud ( People v.

Comila, G.R. No. 171448, February 28, 2007, 517 SCRA 153, 167)34

It is enough that the victims were deceived as they relied on the misrepresentation and scheme

that caused them to entrust their money in exchange of what they later discovered was a vain hope

of obtaining employment abroad.35

It is essential that the false statement or fraudulent representation constitutes the very cause or

the only motive which induces the complainant to part with the thing of value.36

This joint and solidary liabil ity imposed by law against recruitment agencies and foreign employers

is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him.

If the recruitment/placement agency is a juridical being, the corporate officers and directors and

partners as the case may be, shall themselves be jointly and solidarily liable with the corporation

or partnership for the claims and damages. (Becmen Service Exporter and Promotion v. Cuaresma,

G.R. Nos. 18297879, April 7, 2009)


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that a seaman can be repatriated withoutcause if the vessel arrives at a convenientport within three (3) months before theexpiration of his contract, but only uponpayment of

a. all his earned wages;

b. leave pay for the entire contract;

c. termination pay of one (1) monthbasic salary, if seaman has at least ten(10) months original contract.44

c. Direct hiring45

General Rule:

An employer may only hire Filipino worker for overseas employment throughPOEA or entities authorized by DOLE.

Exceptions:

Direct hiring by

1. International organizations

2. Members of the diplomatic corps;

3. Name hires; and

4. Such other employers as may be allowed by the Dept. of Labor.

44PCL Shipping Pils. vs.NLRC, 511 SCRA 44 (2006)

45It is when an employer hires a Filipino worker for overseas employment without going through

the POEA or entities authorized by the Secretary of Labor.

Employers cannot directly hire workers for overseas employment except through authorized entities

duly authorized by POEA as follows:

a. public employment offices;

b. Philippine Overseas Employment Administration (POEA);

c. private recruitment entities;

d. private employment agencies;

e. shipping or manning agents or representatives;

f. such other persons or entities as may be authorized by the Secretary of Labor and Employment; and

g. construction contractors.


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2. Regulation and Enforcement

a. Remittance of foreign exchange earnings

General Rule:

It shall be mandatory for all OFWs to remit a portion of their foreignexchange earnings to their families, dependents, and/or beneficiaries ranging from 50%

80% depending on the workers kind of job.46

Exceptions:

1. The workers immediate family members, beneficiaries and dependents areresiding with him abroad

2. Immigrants and Filipino professionals and employees working with the UNagencies or specialized bodies

3. Filipino servicemen working in U.S. military installations.47

b. Prohibited activities48

1. Furnishing or publishing any false notice/information/document related torecruitment/employment

2. Failure to file reports required by SLE

3. Inducing or attempting to induce a worker already employed to quit his

employment in order to offer him another unless the transfer is designed to liberate aworker from oppressive terms and conditions

4.Recruitment/placement of workers in/jobs harmful to public health or morality orto the dignity of the country

5. Engaging directly or indirectly in the management of a travel agency

6. Substituting or altering employment contracts without approval of DOLE

7.Charging or accepting any amount greater than that specified by DOLE or

make a worker pay any amount greater than actually received by him

8. Committing any act of misrepresentation to secure a license or authority

46Rule VIII, Book III, POEA Rules

47Resolution No. 183, InterAgency Committee for Implementation of E.O. 857

48Art. 34


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9.Influencing or attempting to influence any person/entity not to employ anyworker who has not applied of employment through his agency

atives10.Obstructing or attempting to obstruct inspection by SLE or by his represent

11.Withholding or denying travel documents from applicant workers beforedeparture for monetary considerations other than authorized by law

12.Granting a loan to an OFW which will be used for payment of legal andallowable placement fees

13.Refusing to condone or renegotiate a loan incurred by an OFW after hisemployment contract has been prematurely terminated through no fault of his or herOwn.

14. For a suspended recruitment/manning agency to engage in any kind of

recruitment activity including the processing of pending workers' applications; and

15.For a recruitment/manning agency or a foreign principal/employer to passon the OFW or deduct from his or her salary the payment of the cost of insurancefee, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage

16.Imposing a compulsory and exclusive arrangement whereby an OFW isrequired to:

persons

a. Avail a loan only from specifically designated institutions, entities or

b.To undergo health examinations only from specifically designated medical,entities or persons, except seafarers whose medical examination cost is shoulderedby the shipowner

c. To undergo training of any kind only from designated institutions,entities or persons, except for recommendatory trainings mandated by principals/shipowners.49

49Sec. 6, R.A. 10022


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c. Regulatory and visitorial powers of the Labor Secretary

Regulatory powers Visitorial powers

1.Restrict and regulate the recruitment and

placement activities of all agencies

2. Issue orders and promulgate rules andregulations

1. Access to employers records and

premises at any time of the day or night,whenever work is being undertaken

2. To copy from said records

3.Question any employee and investigateany fact, condition or matter which maybe necessary to determine violations orwhich may aid in the enforcement of theLabor Code and of any labor law, wageorder, or rules and regulation issuedpursuant thereto.

d. Penalties for illegal recruitment50

Offender / Offense Penalty Penalty

IR as economicsabotage

Provided:

1. If person illegally recruited is below18 years of age or

2. Illegal recruitment is committed by a non

licensee/nonholder

Life imprisonment +fine of P2MP5M

Maximum penalty shall be imposed

Any person found guilty of illegalrecruitment

Any person found guilty of the prohibitedacts

12 yrs. and 1 day20 yrs. imprisonment; or

Fine: P1MP2M

6 yrs. and 1 day

12 yrs.

imprisonment; or

Fine of P500KP1M

50under R.A. 10022


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Licensee/holder of authority violatesprovisions

Alien

25 yrs imprisonment; or

Fine: P10KP50K;

Nonlicensee/nonholder of authorityviolates provisions

48 yrs imprisonment; or

Fine: P20KP100K

Corporation, partnership, association, or entity Penalty imposed upon officer/sresponsible for violation

Alien Penalties prescribed under R.A. 10022,+

Deportation without further proceedings

In every case Automatic revocation of license orauthority and all permits and privileges ofthe recruitment or manning agency, lendinginstitutions, training school or medicalclinic.


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b. Normal Hours of Work

Eight (8) hours per day in a general working day.

1. Exceptions

Health Personnel54 Compressed Work Week55

1. Health personnel in cities andmunicipalities with a population of atleast 1 million; or

2.Hospitals and clinics with a bed capacityof at least 100

General Rule:

8 hours/5 days,56 exclusive of time formeals.

Exceptions

Where the exigencies of the servicerequire that such personnel work for 6days or 48 hours, they shall be entitledto an additional compensation of at least30% of their regular wage for work on the6th day.

The normal workweek is reduced to lessthan 6 days but the total number ofWork hours of 48 hours per week shallremain. The normal workday is increased tomore than 8 hours but not to exceed12 hours, without corresponding overtimepremium. The concept can be adjustedaccordingly depending on the normalworkweek of the company.57

54Include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory

technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic

personnel55

See shortening of work week (under 1. Hours of Work), supra56

40hour work week

Does not apply if there is a training agreement between the resident physician and the hospital

and the training program is duly accredited or approved by appropriate government agency.57

Department Advisory Order No. 2, Series of 2009


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2. Work interruption due to brownouts

a. Brown-outs of short duration not exceeding twenty (20) minutes - compensablehours worked whether used productively by the employees or not.

b. Brown-outs running for more than twenty (20) minutes may not be treated as

hours worked provided any of the following conditions are present:

1. The employees can leave their workplace or go elsewhere whether withinor without the work premises; or

2. The employees can use the time effectively for their own interest.

c. In each case, the employer may extend the working hours of his employees

outside the regular schedules to compensate for the loss of productive man

hours without being liable for OT pay.

d. Industrial enterprises with 1 or 2 work shifts may adopt any of thework shift prescribed for enterprises with 3 work shifts to prevent serious loss ordamage to materials, machineries, or equipment that may result case of powerinterruptions.58

3. Meal Break

Every employee is entitled to not less than one (1) hour (or 60 minutes) time-off forregular meals. Being time-off, it is not compensable hours worked and employee is free todo anything he wants, except to work. If he is required to work while eating, he should be

compensated therefor.

If meal time is shortened to not less than twenty (20) minutes - compensable hoursworked.

If shortened to less than 20 minutes - considered coffee break or rest period of shortduration and, therefore, compensable.

58Policy Instruction No. 36


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4. Idle time, waiting time, commuting time, travel time, whether partof hours of work or not

Idle time Waiting time Travel time, commutingtime

Not working time; it is notcompensable.59

Except:

When the employee is idleor inactive by reason ofinterruptions beyond hiscontrol -consideredworking time.

Considered compensable ifwaiting is an integral part ofthe employee's work or he isrequired or engaged by theemployer to wait.

a. Travel from home towork - not compensableworking time

b. Travel that is all in thedays work - compensablehours worked.

c. Travel away from home -compensable hours worked.

59e.g. Stiller works as a Partas Trans bus driver. His route is from Vigan to Baguio, leaving at 6am and

arriving at 12nn. He is completely relieved from all duty until 6pm, when he again goes on duty for the

return trip to Vigan. Is his idle time working time? No, because during his idle time, he is specifically

relieved from all duty. He is merely waiting to be engaged.


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5. Overtime work60

Work beyond eight(8) hours of work within the workers 24 hour workday.61

Undertime not offset by overtime Waiver of overtime pay

Undertime work on any particular day shallnot be offset by overtime on any other day.62

Where a worker incurs undertime hoursduring his regular daily work, saidundertime hours should not be offsetagainst the overtime hours on the same dayor on any other day. It is both prohibited bythe statute and by jurisprudence.

The right of the laborers to overtime paycannot be waived.63

60General Rule: No employee may be compelled to render overtime work against his will.

Exceptions:

a. When the country is at war or when any other national or local emergency has been declared by the

National Assembly or the Chief Executiveb. When overtime work is necessary to prevent loss of life or property or in case of imminent danger to

public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods,

typhoons, earthquake, epidemic or other disasters or calamities;

c. When there is urgent work to be performed on machines, installations or equipment, or in order to

avoid serious loss or damage to the employer or some other causes of similar nature

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

e. When the completion or continuation of work started before the 8th hour is necessary to prevent

serious obstruction or prejudice to the business or operations of the employer; and

f. When overtime work is necessary to avail of favorable weather or environmental conditions where

performance or quality of work is dependent thereon.

When an employee refuses to render emergency overtime work under any of the foregoing conditions, he

may be dismissed on the ground of insubordination or willful disobedience of the lawful order of the

employer.61

In computing overtime work, "regular wage" or "basic salary" means "cash" wage only without

deduction for facilities provided by the employer.

"Premium pay" means the additional compensation required by law for work performed within 8 hours

on nonworking days, such as rest days and special days.

"Overtime pay" means the additional compensation for work performed beyond 8 hours. Every

employee entitled to premium pay is also entitled to the benefit of overtime pay.62

Sec. 8863

It is governed by law and not merely by the agreement of the parties.


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c. Night Work

Any and all work rendered between 6:00 pm and 6:00 am.64

d. CBA provision vis--vis overtime work

Generally, the premium for work performed on the employee s rest days oron special days or regular holidays are included as part of the regular rate of theemployee in the computation of overtime pay for any overtime work rendered onsaid days especially if the employer pays only the minimum overtime rates prescribedby law. The employees and employer, however, may stipulate in their collectiveagreement the payment of overtime rates higher than those provided by law andexclude the premium rates in the computation of overtime pay. Such agreement maybe considered valid only if the stipulated overtime pay rates will yield to theemployees not less than the minimum prescribed by law.

64National Rice & Corn Corp. v. NARIC, 105 Phil 891


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2. Wages65

a. "No work no pay" principle66

Actual work is the basis of claim for wages.

General Rule:

If there is no work performed by the employee, without the fault of the employer, there can be no wage or pay.

Exceptions:

The laborer was able, willing and ready to work but was:

1. Prevented by management;

2. Illegally locked out;

3. Illegally suspended;

4. Illegally dismissed

5. Otherwise illegally prevented from working.67

65

Under the Civil Code, it is mandated that the laborers wages shall be paid in legal currency. Under theLabor Code and its implementing rules, as a general rule, wages shall be paid in legal tender and the use

of tokens, promissory notes, vouchers, coupons or any other form alleged to represent legal tender is

prohibited even when expressly requested by the employee

Exceptions :

A. Payment through automated teller machine (ATM) of banks provided the following conditions are met:

1. the ATM system of payment is with the written consent of the employees concerned;

2. The employees are given reasonable time to withdraw their wages from the bank facility which time,

if done during working hours, shall be considered compensable hours worked;

3. The system shall allow workers to receive their wages within the period or frequency and in the

amount prescribed under the Labor Code, as amended;

4. There is a bank or ATM facility within a radius of one (1) kilometer to the place of work;

5. Upon request of the concerned employee/s, the employer shall issue a record of payment of

wages,benefits and deductions for a particular period;

6. There shall be an additional expenses and no diminution of benefits and privileges as a result of the

ATM system of payment;

7. The employer shall assume responsibility in case the wage protection provisions of law and

regulations are not complied with under the arrangement66

applies to special days but not to unworked regular holidays where employees are always paid 100%

of their basic pay.67

Aklan Electric Coop. v. NLRC, G.R. No. 129246, Jan. 25, 2000


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b. Coverage/Exclusions

Coverage Exclusions

It applies to all employees 1. Farm tenancy or leasehold;

2.Household or domestic helpers, includingfamily drivers and persons working in thepersonal service of another;

3.Home workers engaged in needlework orin any cottage industry duly registered inaccordance with law;

4. Workers in duly registered cooperativeswhen so recommended by the Bureau ofCooperative Development and upon

approval of the Secretary of Labor andEmployment.

5. Workers of a barangay micro businessEnterprise.68

c. Facilities69vs. supplements

Facilities Supplements

Items of expenses necessary for thelaborers and his familys existence andsubsistence but does not include tools of thetrade or articles or services primarily for thebenefit of the employer or necessary to theconduct of the employers business.

Extra remuneration or special privileges orbenefits given to or received by the laborersover and above their ordinary earnings orwages.70

Forms part of the wage Independent of wage

68R.A. 9178

69Value of facilities - the fair and reasonable value of board, lodging and other facilities customarily

furnished by an employer to his employees both in agricultural and non-agricultural enterprises

In order that the cost of facilities furnished by the employer may be charged against an employee, his

acceptance of such facilities must be voluntary (Sec. 7, Rule VII, Book III, Rules to Implement the Labor

Code)70Atok Big Wedge Mining Co. v. Atok Big Wedge Mutual Benefit Assoc., G.R. No. L7349, July 19, 1955


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Deductible from wage Not wage deductible

For the benefit of the worker and his

family.

Granted for the convenience of the

employer.

d. Wages vs. salaries

Wages Salaries

Compensation for manual labor71

also known as blue collared workers, paidat stated times and measured by the day,week, month or season.

Paid to white collared workers and denotesa higher degree of employment, or asuperior grade of services, and implies aposition in office.

Indicates inconsiderable pay for a lower orless responsible character of employment.

Suggests a larger and more permanent orfixed compensation for more importantservices.

General Rule:

Not subject to execution

Exceptions:

Debts incurred for food, shelter,clothing and medical attendance.

Subject to execution

e. Wage distortion72

A situation where an increase in prescribed wage rates results in the elimination orsevere contraction of intentional quantitative differences in wage or salary rates between andamong employee groups in an establishment as to effectively obliterate the distinctions

71 skilled or unskilled72

Elements:

1. An existing hierarchy of positions with corresponding salary rates.

2. A significant change or increase in the salary rate of a lower pay class without a corresponding

increase in the salary rate of a higher one;

3. The elimination of the distinction between the 2 groups or classes; and

4. The WD exists in the same region of the country (Alliance Trade Unions v. NLRC, G.R. No. 140689,

Feb. 17, 2004)


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embodied in such wage structure based on skills, length of service, or other logical bases ofdifferentiation.

The issue of whether or not a wage distortion exists is a question of fact that iswithin the jurisdiction of the quasi- judicial tribunals.

f. CBA vis--vis Wage OrdersCBA creditability

CBA Wage order

Not an ordinary contract. Itcan beentered into only by an exclusivebargaining agent or unit.

Administrative issuance which results froma statute.73

If the CBA provides better benefits, thenthe employees shall be entitled to the same.

Only sets the minimum

A CBA provision regarding wages prevails over a Wage Order where the CBA providesa wage or salary to be received by the employees which is more than the amount setby the Wage Order, whether issued prior to or after theconclusion of the CBA. It is incumbent upon the employer to compensate theemployees according to the provisions of the CBA with respect to wages.

g. Non-diminution of benefits74

This principle mandates that the reduction or diminution or withdrawal byemployers of any benefits, supplements or payments as provided in existing laws, individualagreements or collective bargaining agreements between workers and employers or voluntaryemployer practice or policy, is not allowed.75

The benefits being given to employees cannot be taken back or reduced unilaterallyby the employer because the benefits have become part of the employment contract, writtenor unwritten.76

73R.A. 6727

74 The rule is applicable if it is shown that the grant of the benefits is:

Based on an express policy; or

Has ripened into practice over a long period of time,

The practice is consistent and deliberate; and

It is not due to an error in the construction/ application of a doubtful or difficult question of law.75

See Art. 10076

Exception:

To correct an error, otherwise, if the error is not corrected for a reasonable time, it ripens into a

company policy and employees can demand it as a matter of right.


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80Art. 113

29

h. Workers preference in case of bankruptcy

1. Declaration of bankruptcy or judicial liquidation before enforcement of theworkers preferential right;

2. Filing of claims by workers;

3. The right does not constitute a lien to the property of the insolvent debtor infavor of workers.77

4. The preference in favor of the employees applies to discharge of funds. Thepreference does not only cover unpaid wages, it also extends to termination pay andother monetary claims;78

5. Applicable only to ordinary preferred credit, hence, must yield to specialpreferred credits.

i. Labor Code provisions for wage protection

No employer shall limit or otherwise interfere with the freedom of anyemployee to dispose of his wages. He shall not in any manner force, compel oroblige his employees to purchase merchandise, commodities or other properties from theemployer or from any other person, or otherwise make use of any store or service of suchemployer or any other person.79

No employer in his own behalf or in behalf of any person, shall make anydeduction from the wages of his employees, except:

(a) In cases where the worker is insured with his consent by the employer,and the deduction is to recompense the employer for the amount paid by him as premiumon the insurance;

(b) For union dues, in cases where the right of the worker or his union to checkoffhas been recognized by the employer or authorized in writing by the individual workerconcerned; and

(c) In cases where the employer is authorized by law or regulations issued by theSecretary of Labor.80

77DBP vs. NLRC, G.R. No. 82763 Mar. 19, 1990 and G.R. No. 97176, Mar. 18, 1993

78Termination pay, after all, is considered as additional remuneration for services rendered to the

employer for a certain period of time; it is computed on the basis of length of service. (PNB vs. Cruz, G.R.

No. 80593, Dec. 18, 1989)79

Art. 112.


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85Art. 118

30

No employer shall require his worker to make deposits from which deductionsshall be made for the reimbursement of loss of or damage to tools, materials orequipments supplied by the employer; except when the employer is engaged in suchtrades, occupations or business where the practice of making deductions or requiringdeposits is a recognized one, or is necessary, or desirable as determined by the

Secretary of Labor in appropriate rules and regulations.

81

No deduction from the deposits of an employee for the actual amount of theloss ordamage shall be made unless the employee has been heard thereon, and hisresponsibility has been clearly shown.82

amountIt shall be unlawful for any person, directly or indirectly, to withhold any

from the wages of a worker or induce him to give up any part of his wages byforce, stealth, intimidation, threat or by any other means whatsoever without theworkers consent.83

It shall be unlawful to make any deduction from the wages of any employeefor the benefit of the employer or his representative or intermediary as consideration of apromise of employment or retention in employment or retention in employment.84

It shall be unlawful for an employer to refuse to pay or reduce the wages andbenefits, discharge or in any manner discriminate against any employee who has filedany complaint instituted any proceeding under this Title or has testified or is aboutto testify in such proceedings.85

81Art. 114

82Art. 115

83Art 116

84Art 117


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92Art. 1703, id.

31

j. Allowable deductions without employees consent

General Rule Exceptions

It is strictly prohibited 1. Deductions86 for insurance premiums

2. Union dues in cases where the right of the worker or hisunion to check off has been recognized by the employeror authorized in writing by the individual workerconcerned.87

Art. 241(o) provides that special assessments may bevalidly checked-off provided that there is an individualwritten authorization duly signed by every employee.

3. Deductions for SSS, Medicare and Pagibig premiums

4. Taxes withheld pursuant to the Tax Code

5. Deductions for loss or damage to tools, materials orequipments

6. Deductions made with the written authorization ofthe employee for payment to a third person. 88

7. Deductions as disciplinary measures for habitualtardiness.89

8. Agency fees90

9. Deductions for value of meals andfacilities freely agreed upon

10. In case where the employee is indebted to theemployer where such indebtedness has become due anddemandable.91

11.In court awards, wages may be subject of executionor attachment, but only for debts incurred for food,

shelter, clothing, and medical attendance.

92

86under Art. 113

87ibid.

88Sec 13, Rule VII I, Book II I of the IRR

89Opinion dated March 10, 1975 of the SLE

90under Art. 248(e)

91Art. 1706, NCC


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96under Art.222 of the LC

32

12. Salary deduction of a member of a legallyestablished cooperative.93

k. Attorneys fees and union service fee in labor cases

Attorneys fees Union service fee

1.In case of unlawful withholding of wages

10% of the amount of wages to berecovered.

2. It shall be unlawful for any person todemand or accept94 attys fees that exceed10% of the amount of wages recovered.95

The appearance of labor federations andlocal unions as counsel in laborproceedings has been given legal sanction96

which allows non-lawyers to representtheir organization thereof. The said laborfederations and local unions have a validclaim to attys fees which is called theUnion Service Fee.

l. Criteria/Factors for Wage Setting

a) The demand for living wages;

b) Wage adjustment vis--vis the consumer price index;

c) The cost of living and changes or increases therein;

d) The needs of workers and their families;

e) The need to induce industries to invest in the countryside;

f) Improvements in standards of living;

g) The prevailing wage levels;

h) Fair return of the capital invested and capacity to pay of employers;

i) Effects on employment generation and family income; and

93R.A. 6938, Art. 59

94in any judicial or administrative proceedings for the recovery of wages

95The prohibition on attys lien refers to proceedings for recovery of wages and not to services

rendered in connection with CBA negotiations. In the latter case, the amount of attys fees may be

agreed upon by the parties and the same is to be charged against union funds as provided for in

Art. 222 of the Labor Code (Pacific Banking Corp. v. Clave, G.R. No. 56965, Mar. 7, 1984).


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j) The equitable distribution of income and wealth along the imperatives ofeconomic and social development97

3. Rest Day

a. Right to weekly rest day

Every employer, whether operating for profit or not, shall provide each of hisemployees a rest period of not less than twenty-four (24) consecutive hours after every six(6) consecutive normal work days.

The employer shall determine and schedule the weekly rest day of his employeessubject to collective bargaining agreement and to such rules and regulations as the Secretaryof Labor and Employment may provide

b. Preference of the employee

The employer shall respect the preference of employees as to their weekly restday when such preference is based on religious grounds.

c. When work on rest day authorized

1. Actual or impending emergencies caused by serious accident, fire, flood, typhoon,earthquake, epidemic or other disaster or calamity to prevent loss of life and property, orimminent danger to public safety;

2. Urgent work to be performed on the machinery, equipment, or installation, toavoid serious loss which the employer would otherwise suffer;

3. Abnormal pressure of work due to special circumstances, where the employercannot ordinarily be expected to resort to other measures;

4. To prevent loss or damage to perishable goods;

5. The nature of the work requires continuous operations and the stoppage of workmay result in irreparable injury or loss to the employer; and

6. Other analogous or similar circumstances as determined by the Secretary of Laborand Employment.98

97See Art. 124

98Art. 92


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4. Holidays

a. Right to holiday pay99

(1) In case of absences

LoA100with pay on the dayimmediately preceding a RH101

LoA without pay on the day immediatelypreceding a RH

General Rule:

All covered employees are entitled toholiday pay.

General Rule:

An employee may not be paid the requiredholiday pay if he has not worked on suchregular holiday.

Exception:

Where the day immediately preceding theholiday is a:

1. Nonworking day in the establishment or

2. The scheduled rest day of the employee.

(2) In case of temporary cessation of work

Instances Rule

1. Yearly inventory or

2. When the repair or cleaning ofmachineries is undertaken

RH falling within the period shall becompensated.

3. Due to business reverses RH may not be paid by the employer

99Art. 94

It is a premium given to employees pursuant to law even if he has not been suffered to work

on a regular holiday. It is limited to the 11 regular holidays, also called legal holidays listed by law.

The employee should not have been absent without pay on the working day preceeding the regular

holiday.

Every worker shall be paid his regular daily wage during regular holidays.

The employer may require an employee to work on any holiday but such employee shall be paid a

compensation equivalent to twice his regular rate;100

Leave of Absence101

Regular Holiday


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(3) Of teachers, piece workers, seafarers, seasonal workers, etc.

Employees Rule

Private school teachers

102

1. RH during semestralvacations

- Not entitled to HP

2. RH during Christmasvacation

- Shall be paid HP

Paid by:

1. results or

2. output103

HP shall not be less than his average dailyearnings for the last 7 actual work days precedingthe RH; Provided: HP shall not be less than thestatutory minimum wage rate.

Seasonal Workers May not be paid the required HP during offseason wherethey are not at work.

Workers having noregular work days

Shall be entitled to HP

Seafarers Shall be entitled to HP

b. Exclusions from coverage

In retail and service establishments regularly employing less than ten (10) workers.

102Faculty members of colleges and universities

103Piece work payment


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5. Leaves

a. Service Incentive Leave Pay104

(1) Right to service incentive leave

Every employee who has rendered at least one (1) year of service105 shall be entitledto a yearly service incentive leave of five (5) days with pay.

(2) Exclusions from coverage

a. Government employees and any of its political subdivisions, includingGOCCs

b. Those already enjoying the benefit

c. Domestic helpers and persons in the personal services of another

d. Those already enjoying vacation leave with pay of at least 5 days

e. Managerial employees

f. Field personnel and other employees whose performance is unsupervised bythe employer

g. Employed in establishments regularly employing less than 10 workers

h. Exempt establishments

i. Engaged on task or contract basis, purely commission basis, or those whoare paid in a fixed amount of performing work irrespective of the time consumed inthe performance thereof.106

104It is 5 days leave with pay for every employee who has rendered at least 1 yr. of service. It is

commutable to its money equivalent if not used or exhausted at the end of year.105

Service for not less than 12 months, whether continuous or broken reckoned from the date

the employee started working, including authorized absences and paid regular holidays unless the

working days in the establishment as a matter of practice or policy, or that provided in the

employment contract is less than 12 months, in which case said period shall be considered as one

year. (Sec. 3, Rule V, Book III, IRR)106

Art. 95[b]


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(3) Commutable nature of benefit

It is commutable to cash if unused at the end of the year.

b. Maternity Leave107

(1) Coverage

A covered female employee who has paid at least three (3) monthly maternitycontributions in the twelve (12)-month period preceding the semester of her childbirth,abortion or miscarriage and who is currently employed.108

(2) Conditions to entitlement

a. The employee shall have notified her employer of her pregnancy and the probabledate of her childbirth which notice shall be transmitted to the SSS in accordance with therules and regulations it may provide;

b. Payment shall be advanced by the employer in two equal installments within thirty(30) days from the filing of the maternity leave application;

c. In case of caesarian delivery, the employee shall be paid the daily maternity benefitfor 78 days;

d. Payment of daily maternity benefits shall be a bar to the recovery of sicknessbenefits provided by this Act for the same compensable period of sixty (60) days for thesame childbirth, abortion or miscarriage;

e. The maternity benefits shall be paid only for the first four deliveries after March13, 1973;

f. The SSS shall immediately reimburse the employer of one hundred percent (100%)of the amount of maternity benefits advanced to the employee by the employer upon receiptof satisfactory proof of such payment and legality thereof

g. If an employee should give birth or suffer abortion or miscarriage without therequired contributions having been remitted for her by her employer to the SSS, or withoutthe latter having been previously notified by the employer of the time of the pregnancy, the

107

Maternity benefits, like other benefits granted by the SSS, are granted to employees in lieu of wages

and, therefore, may not be included in computing the employees 13th-month pay for the calendar year.

Voluntary or self-employed members are not entitled to the maternity benefit because to be entitled

thereto, corresponding maternity contributions should be paid by employers. Voluntary or self-employed

members have no employers so they do not have maternity contributions.108

Shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her present basic

salary, allowances and other benefits or the cash equivalent of such benefits for 60 days or 78 days in case

of caesarian delivery. .


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employer shall pay to the SSS damages equivalent to the benefits which said employee wouldotherwise have been entitled to, and the SSS shall in turn pay such amount to the employeeconcerned.109

(3) Availment

Every pregnant woman in the private sector, whether married or unmarried, isentitled to the maternity leave benefits.110

c. Paternity Leave111

(1) Coverage

Granted to a married male employee in the private and public sector allowing himnot to report for work for seven (7) days but continues to earn the compensation therefor.


The male employee is

1. Legally married to, and is cohabiting with the woman who delivers the baby

2. Employee of private or public sector;

and3. Only for the first 4 deliveries112 of legitimate spouse with whom he is cohabiting;

4.Notify his employer of the pregnancy of his legitimate spouse and the expected date of such delivery

(3) Availment113

The paternity benefits may be enjoyed by the qualified employee before, during orafter the delivery by his wife.

However, the total number of days shall not exceed seven (7) working days for eachdelivery.

This benefit shall be availed of not later than sixty (60) days after the date of saiddelivery.

109R. A. 7322, March 3, 1992.

110see also Coverage, supra

111It is not convertible to cash if not availed of.

112include childbirth or any miscarriage

113see also (1) Coverage, supra


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d. Parental Leave114

(1) Coverage

Leave benefits of not more than seven (7) working days every year granted to a solo

parent

115

employee to enable him/her to perform parental duties and responsibilities wherephysical presence is required.


1. He or she must fall among those referred to as solo parent

2. Must have the actual and physical custody of the child or children

3. Must have at least rendered service of one (1) year to his or her employer

4. He or she must remain a solo parent

114Republic Act No. 8972 (An Act Providing for Benefits and Privileges to Solo Parents and Their Children,

Appropriating Funds Therefor and for Other Purposes), otherwise known as The Solo Parents Welfare

Act of 2000. This leave privilege is an additional leave benefit which is separate and distinct from any

other leave benefits provided under existing laws or agreements115

Any individual who falls under any of the ff. categories:

1. A woman who gives birth as a result of rape and other crimes against chastity even without a

final conviction of the offender, provided, That the mother keeps and raises the child;

2. Parent left solo or alone with the responsibility of parenthood due to:

a. Death of spouse;

b. Detention or service of sentence of spouse for a criminal conviction for at least 1 yr;

c. Physical and/or mental incapacity of spoused. Legal separation or de facto separation from spouse for at least 1 yr as long as he/she is

entrusted with the custody of the children;

e. Nullity or annulment of marriage as decreed by a court or by a church as long as

he/she is entrusted with the custody of the children;

f. Abandonment of spouse for at least 1 yr;

3. Unmarried mother/father who has preferred to keep and rear his or her child/children

instead of:

a. having others care for them or

b. give them up to a welfare institution;

4. Any other person who solely provides:

a. parental care and

b. support to a child or children;

5. Any family member who assumes the responsibility of head of family as a result of the:

a. death,

b. abandonment,

c. disappearance or

d. prolonged absence of the parents or solo parent.

A change in the status or circumstance of the parent claiming benefits under this Act, such

that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility

for these benefits. (Sec.3)


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(3) Availment116

e. Leaves for victims of violence against women117

(1) Coverage

(2) Conditions to entitlement(3) Availment

A female employee who is a victim of violence118 is entitled to a paid leave of10 days in addition to other paid leaves, extendible when the necessity arises as specifiedin the protection order.119

6. Service Charges

a. Coverage

These are charges collected by hotels, restaurants and similar establishments

and shall be distributed at the rate of:

Covered Employees Management

85% 15%

Equally distributed among them 1. To answer for losses and breakages and

2. Distributed to employees receiving more thanP2000 a month at the discretion of the

management.

b. Exclusion120

Managerial employees.121

c. Distribution122

The share of the employee shall be distributed and paid to themnot less than once every 2 weeks or twice a month at intervals not exceeding 16 days.

116see (1) Coverage, supra

117under R.A. 9262

118physical, sexual, or psychological

119Sec. 43, 1

stpar., ibid

120See A. Coverage

121Sec. 2, Rule VI, Book III, IRR

122ibid


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125Revised Guidelines on the Implementation of the 13 Month Pay Law

41

d. Integration123

If the service charge is abolished, the share of the covered employees shall beconsidered integrated in their wages on the basis of the average monthly share ofeach employees for the past 12 months immediately preceding the abolition.

7. Thirteenth (13th) Month Pay and other bonuses

a) Coverage

All rank-and-file employees are entitled to a 13th-month pay124 regardless of theamount of basic salary that they receive in a month, if their employers are not otherwiseexempted from paying the 13th month pay. Such employees are entitled to the 13th

month pay regardless of their designation or employment status, and irrespective of themethod by which their wages are paid, provided that they have worked for at least one (1)month during a calendar year.125

b) Exclusion/Exemptions from coverage

1. Government employees

2. Household helpers

3. Employees paid purely on commission basis

4. Employees already receiving 13th month pay

c) Nature of 13th month pay

It is in the nature of wages. This is a year-end pay established by P.D. 851 which isequivalent to 1/12 of the total basic salary earned by an employee within the calendar year,which is demandable as a legal obligation. It may be given anytime but not later thanDecember 24.

123ibid

124Forms:

Christmas bonus;

Midyear bonus;

Profit sharing payments; and

Other cash bonuses amounting to not less than1/12 of its basic salary


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128Art.136

42

d) Commissions vis--vis 13th month pay

The salesmans commissions, comprising a pre-determined percent of the sellingprice of the goods sold by each salesman, were properly included in the term basicsalary for purposes of computing their 13th month pay.

e) CBA vis--vis 13th month pay

The absence of an express provision in the CBA obligating the employer topay the members of a union 13th month pay is immaterial. Notwithstandingtherefore the absence of any contractual agreement, the payment of a 13th monthpay being a statutory grant, compliance with the same is mandatory and is deemedincorporated in the CBA.

8. Women Workers

a. Discrimination

sexWith respect to the terms and conditions of employment solely on account of

1. Payment of lesser compensation to a female employee as against a maleemployee for work of equal value

2. Favoring a male employee with respect to promotion, training opportunities,study and scholarship grants on account of gender.126

3. Favoring a male applicant with respect to hiring where the particular job

can equally be handled by a woman

4. Favoring a male employee over a female employee with respect to dismissalof personnel.127

b. Stipulation against marriage

Whether as a condition of employment or continuation of employment

1. A woman employee shall not get married, or

2. Upon getting married, a woman employee shall be deemed resigned or separated,or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employeemerely by reason of her marriage.128

126Art. 135

127Ibid., 1

stpar.


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130Art. 138

43

c. Prohibited Acts

1. Denying any woman employee the benefits provided for by law or to dischargeany woman employed by him for the purpose of preventing her from enjoying any of thebenefits provided for by law.

2. Discharging such woman on account of her pregnancy, or while on leave or inconfinement due to her pregnancy;

3. Discharging or refusing the admission of such woman upon returning to her workfor fear that she may again be pregnant.129

d. Classification of certain women workers

Any woman who is permitted or suffered to work

1. with or without compensation,

2. in any nightclub, cocktail lounge, massage clinic, bar or similar establishments

of time3. under the effective control or supervision of the employer for a substantial period

4. shall be considered as an employee of such establishment for purposes of laborand social legislation.130

A woman worker may not be dismissed on the ground of dishonesty for having written single

on the space for civil status on the application sheet, contrary to the fact that she was married.

(PT&T Co. v. NLRC, G.R. No. 118978, May 23, 1997)129

Art. 137


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e. Anti-Sexual Harassment Act131

The Act punishes sexual harassment if the same is:

1. work-related; or

2. Education-related; or

3. training-related.132

Sexual harassment may be committed by an:

1. Employee

2. Manager

3. Supervisor

4. Agent of the employer

5. Teacher, instructor, professor6. Coach, trainer, or

7. Any other person who, having authority, influence or moral ascendancy overanother in a work or training or education environment:

a. Demands

b. Requests or

c. Requires

any sexual favor from the other, regardless of whether the demand,

request or requirement for submission is accepted by the object of R.A.8777.133

131R.A. 7877

- declares sexual harassment unlawful in the employment, education or training environment.132

Sec. 3, id.133

ibid.

It is not necessary that the demand, request or requirement of a sexual favor be articulated in a

categorical manner. It may be discerned, with equal certitude, from the acts of the offender.

Likewise, it is not essential that the demand

request or requirement be made as a condition for continued employment or for promotion to a

higher position. It is enough that the respondents acts result in creating an intimidating, hostile or

offensive environment for the employee. (Domingo v. Rayala, G.R. No. 155831, Feb. 18, 2008)


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9. Minor Workers134

a. Regulation of working hours of a child135

General Rule Exceptions

1. No person under 18 years of age willbe allowed to be employed in an undertakingwhich is hazardous or deleterious in nature.

2. No employer shall discriminate againstany person in respect to terms andconditions of employment on account of hisage.

A. Below 15 yrs. Old

1. The child works directly under thesole responsibility of his parents, orguardians who employ members ofhis family, subject to the followingconditions:

a. Employment does not endangerthe childs safety, health and morals

b. Employment does not impair thechilds normal devt.

c. Employerparent or legal guardianprovides the child with the primaryand/or secondary education prescribedby the Dept. of Education

2. The childs employment orparticipation in public entertainmentor information through cinema, theater,radio or television is essential provided:

a. Employment contract is concludedby the childs parents or legal guardian,

b. With the express agreement ofthe child concerned, if possible, and

c. The approval of DOLE, thefollowing must be compliedwith:

i. The employment does not

involve advertisement or commercialspromoting alcoholic beverages,intoxicating drinks, tobacco and its by

134R.A. 7678, R.A. 9231

135The term "child" shall apply to all persons under eighteen (18) years of age.


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46

products or exhibiting violence

ii. there is a written contractapproved by DOLE

iii. the conditions provided inthe first instance are met.

B. Above 15 but below 18 may be

employed in any nonhazardous work

C. Above 18no prohibition

1. A child below fifteen (15) years of age136 may be allowed to work for not morethan twenty (20) hours a week: Provided, That the work shall not be more than four (4)hours at any given day;

2. A child fifteen (15) years of age but below eighteen (18) shall not be allowed towork for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;

3. No child below fifteen (15) years of age shall be allowed to work between eighto'clock in the evening and six o'clock in the morning of the following day and no childfifteen (15) years of age but below eighteen (18) shall be allowed to work between teno'clock in the evening and six o'clock in the morning of the following day.137

136

Children below fifteen (15) years of age shall not be employed except:(1) When a child works directly under the sole responsibility of his/her parents or legal guardian and

where only members of his/her family are employed: Provided, however, That his/her employment

neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development:

Provided, further, That the parent or legal guardian shall provide the said child with the prescribed

primary and/or secondary education; or

(2) Where a child's employment or participation in public entertainment or information through cinema,

theater, radio, television or other forms of media is essential: Provided, That the employment contract is

concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if

possible, and the approval of the Department of Labor and Employment: Provided, further, That the

following requirements in all instances are strictly complied with:

(a) The employer shall ensure the protection, health, safety, morals and normal development of the

child;

(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into

account the system and level of remuneration, and the duration and arrangement of working time; and

(c) The employer shall formulate and implement, subject to the approval and supervision of competent

authorities, a continuing program for training and skills acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer shall first secure,

before engaging such child, a work permit from the Department of Labor and Employment which shall

ensure observance of the above requirements. (Section 12, R.A. No. 7610, as amended by R. A. No. 9231,

December 19, 2003).137

Sec. 12-A, R.A. No. 7610, as amended by R. A. No. 9231, December 19, 2003.


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b. Employment of the child in public entertainment138

c. Prohibition of employing minors in certain undertakings and in certainadvertisements

No child shall be employed as a model in any advertisement directly or indirectlypromoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling orany form of violence or pornography.139

10. Employment of Househelpers140

a. Definition

Domestic or household service means service in the employers home which isusually necessary or desirable for the maintenance and enjoyment thereof and includesministering to the personal comfort and convenience of the members of the employershousehold, including services of family drivers.141

b. Benefits accorded househelpers

1. SSS benefits for those who are receiving at least P1,000 per month.142

2. Entitled to minimum wage in addition to lodging, food, and medical attendance.143

3. If the househelper is under the age of eighteen (18) years, the employer shall givehim or her an opportunity for at least elementary education. The cost of education shall bepart of the househelpers compensation, unless there is a stipulation to the contrary.144

138see Exceptions (2), supra.

139Sec. 14, R.A. No. 7610, as amended by R. A. No. 9231, December 19, 2003.

140A househelper is synonymous to domestic servant

1. Any person, male or female;

2. Who renders services in and about the employers home and;

3. Services are usually necessary or Desirable for the maintenance and enjoyment thereof, and

4. Ministers exclusively to the personal comfort and enjoyment of employers family

The children and relatives of a househelper who live under the employers roof and who share

the accommodations provided for the househelper by the employer shall not be deemed as househelp

ers if/they are not otherwise engaged as such and are not required to perform any substantial hous

ehold work. (Sec 3, Rule XII, Book III, IRR)

The definition of a househelper cannot be interpreted to include househelp or laundry women

working in staffhouses of a company. (APEX Mining CO., Inc., v. NLRC, G.R. No. 94951, April 22, 1991)141

Art. 141, 2nd

par.142

Art. 143143

Art. 144144

Art. 146


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c. Termination

The termination of the employment of a househelper should be:

1. Upon expiration of the term of employment, or

2. Based on just cause145

d. Reliefs for unjust termination

Rules:

1. If the period for household service is fixed, neither the employer nor thehousehelper may terminate the contract before the expiration of the term except forjust cause.

2. If the househelper is unjustly dismissed, he or she shall be paid the compensation

already earned plus that for the 15 days by way of indemnity.

3. If the househelper leaves without justifiable reason, he or she shall forfeitany unpaid salary due him or her not exceeding 15 days.

11. Employment of Homeworkers

a. Definition

Homeworkers refer to workers who perform in or about their homes any processingof goods or materials in whole or in part which have been furnished directly or indirectly by

an employer or contractor, and thereafter to be returned to the latter. The term does not include those situated within the premises or compound of an employer or contractor,where work performed therein is under the active or personal supervision by or for thelatter.

b. Rights and benefits accorded homeworkers

i. The employer is required to pay the homeworker or the contractor or sub-contractor for the work performed immediately upon receipt of the finished goods orarticles. When payment is made to a contractor or sub-contractor, the homeworker shall bepaid within one (1) week after the contractor or subcontractor has collected the goods or

articles from the homeworker.

146

ii. Whenever an employer contracts with a contractor in this regard, the employershould provide in such contract that the employees or homeworkers of the contractor andthe latters subcontractor shall be paid in accordance with these regulations. In the event thatsuch contractor or subcontractor fails to pay the wages or earnings of his employees or

145Art. 149

146Rule XIII, Book III, Secs. 3 & 4, OR


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147ibid, Sec. 8, OR.

148Rule XIII, Sec. 5, OR. This is to ensure the homeworkers right to due process.

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homeworkers, such employee shall be jointly and severally liable with the contractor orsubcontractor to the workers of the latter, to the extent that the work is performed undersuch contract, in the same manner as if the employees or homeworkers were directlyengaged by the employer.147

c. Conditions for deduction from homewokers earnings

No deductions shall me made from the homeworkers earnings for the value ofmaterials lost, destroyed, soiled or otherwise damaged unless the following conditions aremet:

a) the homeworker concerned is clearly shown to be responsible for the loss ordamage:

b) the employee is given reasonable opportunity to show cause why deductionsshould not be made:

c) the amount of such deductions is fair and reasonable, and shall not exceed theactual loss or damage; and

d) the deduction is made at such rate that the amount deducted does not exceed 20percent of the homeworkers earnings in a week.148


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12. Apprentices and Learners149

a. Distinctions between Learnership and Apprenticeship

Learnership Apprenticeship

NatureTraining on the job in semi-skilled and otherindustrial occupation or trades which are

nonapprenticeable and which may belearned thru practical training on the job in arelatively short period of time.

Training in trades which are apprenticeable,that is, practical training on the jobsupplemented by related theoreticalinstruction for more than 3 months.

Duration oftraining

With commitment to employ the learner as a

regular employer if he desires uponcompletion of learnership.

No commitment to hire

In case of pretermination of contract

Considered a regular employee if pre-

termination occurs after 2 months of trainingand the dismissal is without fault of the

learner.

Worker not considered as regular employee.

Coverage

Semiskilled/Industrial occupations

Highly technical industries and only inindustrial occupation

There is a list of learnable trades by TESDA No list

Written agreement

Require Learnership Agreement Requires Apprenticeship Agreement

149Under R.A. 7277. Wage rate is 75% of the statutory minimum wage rate.


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13. Handicapped Workers 150

a. Definition of "handicapped workers"

injury.

One whose earning capacity is impaired by age, physical or mental deficiency; or

b. Rights of disabled workers

1. Equal opportunity for employment

2.Sheltered employment151

3. Apprenticeship

4.Vocational rehabilitation152

5. Vocational guidance and counseling.

Handicapped workers may be hired as apprentices or learners if their handicap is notsuch as to effectively impede the performance of job operations in the particular occupationsfor which they are hired.

No disabled person shall be denied access to opportunities for suitable employment.Qualified disabled employees shall be subject to the same terms and conditions ofemployment and the same compensation, privileges, benefits, fringe benefits, incentives or

allowances as a qualified able-bodied person. Even a handicapped worker can acquire thestatus of a regular employee if the factors that make for a regular employment are present,especially if his appointment was repeatedly renewed.153

Apprentice - a worker who is covered by a written apprenticeship agreement with an employer

Learner - a person hired as a trainee in industrial occupations which are non-apprenticeable and which

may be learned through practical training on the job for a period not exceeding three (3) months, whether

or not such practical training is supplemented by theoretical instructions.150 Ibid

If disability is not related to the work for which he was hired, he should not be so considered as

handicapped worker. He may have a disability but since the same is not related to his work, he cannot be

considered a handicapped worker insofar as that particular work is concerned.151

The govt shall endeavor to provide them work if suitable employment for disabled persons cannot

be found through open employment152

means to develop the skills and potentials of disabled workers and enable them to compete in the

labor market153

Bernardo vs. NLRC, July 12, 1999 GR No. 122917


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c. Prohibitions on discrimination against disable persons

No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions

of employment and the same compensation, privileges, benefits, fringe benefits,incentives or allowances as a qualified able bodied person. Five percent (5%) of allcasual emergency and contractual positions in the Departments of Social Welfare andDevelopment; Health; Education, Culture and Sports; and other government agencies,office or corporations engaged in social development shall be reserved for disabledpersons.154

d. Incentives for employers

Entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons:Provided, however, That such entities present proof as certified by the Department of Laborand Employment that disabled persons are under their employ: Provided, further, That the

disabled employee is accredited with the Department of Labor and Employment and theDepartment of Health as to his disability, skills and qualifications.

Private entities that improve or modify their physical facilities in order to providereasonable accommodation for disabled persons shall also be entitled to an additionaldeduction from their net taxable income, equivalent to fifty percent (50%) of the direct costsof the improvements or modifications. This does not apply to improvements ormodifications of facilities required under Batas Pambansa Bilang344.155

154The Magna Carta strictly prohibits discrimination against a qualified disabled person, even as the law

gives incentives to employers of disabled persons.155

Sec. 8, R.A. 7277

7/28/2019 2012 Bar Reviewer in Labor L

2012 Bar Reviewer in Labor Law

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