Ateneo 2007 Labor Law (Labor Standards)

8/10/2019 Ateneo 2007 Labor Law (Labor Standards)

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ATENEOCENTRALBAROPERATIONS 2007

Labor Law and Social LegislationSUMMER REVIEWER

Head: Ryan Quan

Labor Standards: Kukay Malabanan

Labor Relations: Peewee Estrella

Socail Legislation: Binkki Hipolito

Understudy: Kate Sabado

Volunteers: Aren Samonte, Vina Padi lla, Ria Campos, Ina Quintani lla, Athena Zosa

TABLE OF CONTENTS

LABOR STANDARDS

I. GENERAL PRINCIPLES..................................................................................................................... 1

A. ARTICLE 3: Declaration of Basic Policies

B. ARTICLE 4: Construction in Favor of Labor

C. ARTICLE 5: Rules and Regulations

D. ARTICLE 6: Applicability of Labor Code

II. EMPLOYER EMPLOYEE RELATIONSHIP ......................................................................... 2

A. Elements of Relationship

B. Independent Contractors and Labor-Only Contractors

C. Special Cases

III. PRE EMPLOYMENT............................................................................................................. 6

A. Principles and Definitions

B. Recruitment and Placement

1. Definition: Illegal Recruitment; Prohibited Acts

2. Regulation of Recruitment and Placement

3. Contracts

4. Dispute Settlements

C. Employment of Aliens

D. Human Resources and Manpower Development

1. Government Machinery


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Labor Law and Social Legislation Summer Reviewer

ATENEOCENTRALBAROPERATIONS2007


2. Apprenticeship and Learnership

IV. WORKING CONDITIONS...................................................................................................... 13

A. Coverage

B. Hours of WorkC. Rest Periods and Holidays

D. Service Charge and Service Incentive Leaves

E. Others

V. WAGES.................................................................................................................................. 20

A. Concept and Definition

B. Wage Fixing

C. Payment of Wages

D. Liability for WagesVI. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES............................... 26

A. Women

B. Minors

C. Househelpers

D. Homeworkers

E. Handicapped/Disabled

VII. ADMINISTRATION AND EMPLOYMENT ............................................................................. 30

A. ARTICLE 128: Visitorial and Enforcement Powers

B. Power of DOLE Secretary

VIII. MEDICAL, DENTAL AND OCCUPATIONAL SAFETY ........................................................ 31

IX. EMPLOYEES COMPENSATION.. ......................................................................... 31

A. Workmens Compensation

LABOR RELATIONS

I. RIGHT TO SELF ORGANIZATION.................................................... 35

A. Concept and Scope........................................................................................... 35

1. ARTICLE 243: Coverage and E,mployees Right to Self-Organization

2. ARTICLE 246: Non-Abridgment of Right to Self-Organization

B. Labor Organization................................................................................................... 35

1. Definition and Types

2. Registration of Labor Organizations


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i. Requirements for Registration

SeeANNEX A

ii. Requirements in Case of Merger/Consolidation

SeeANNEX Biii. Procedure for Registration of labor Organization

SeeANNEX C

3. Cancellation of Registration

i. Procedure for Cancellation of Registration

SeeANNEX D

4. Rights of Labor Organization

ii. ARTICLE 242: Rights of Legitimate Labor Organizations

iii. ARTICLE 277: Miscellaneous ProvisionsC, Special Groups of Employees.................................................................... 37

1. Manegerial and Supervisory Employees

2. Confidential Employees

3. Security Guards

4. Members of Cooperatives

5. Members of Iglesia ni Kristo

6. Government Employees

i. ARTICLE 244: Rights of Employees in the Public Service

ii. ARTICLE 276: Government Employees

7. Employees of International Organizations

D. Acquisition and Retention of Membership; Union Security Agreements........ 39

1. ARTICLE 277: Miscellaneous Provisions

2. ARTICLE 248: Unfair Labor Practice of Employers

E. Membership; Rights of Members.. ............................................................. 40

1. ARTICLE 241: Rights and Conditions of Membership in a Labor Organization

2. ARTICLE 274: Visitorial Powers

3. ARTICLE 222: Appearances and Fees

4. Rights of Union Members

i. Political Right

ii. Deliberative and Decision-Making Right

iii. Right Over Money Matters

iv. Right to Information
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v. Other Rights and Conditions Under Article 241

5. Elections Under Rule 12 of the Implementing Rules and Regulations

SeeANNEX F

6. Check-Offs and AssessmentsII. UNFAIR LABOR PRACTICES. .............................................. 42

A. ARTICLE 247: Concept of Unfair Labor Practice................................................................ 42

B. Elements of Unfair labor Practice............................................................... 42

C. ARTICLE 248: Unfair Labor Practice of Employers ................................... 43

1. Interference

2. Yellow Dog Contract

3. Contracting Out

4. Company Domination of Union5. Discrimination

6. Discrimination Because of Testimony

7. Violation of the Duty to Bargain

8. Paid Negotiation

9. Violation of the CBA

D. Relief in ULP Cases.............................................................................................. 49

E. ARTICLE 249: Unfair labor Practices of labor Organization ............................................... 50

1. Restraint or Coercion of labor Organization

2. Refusal to Bargain

3. Featherbedding and Make-Work Arrangements

III. RIGHT TO COLLECTIVE BARGAINING .............................................................................. 51

A. Duty to Bargain Collectively ..............................................................................51

1. Collective Bargaining Agreement

2. Bargaining Procedure under the Labor Code

SeeANNEX G

3. Violation of the Duty to Bargain Collectively

4. Registration of Collective Bargaining Agreement

5. Rules on Effectivity and Retroactivity of New CBA

B. Bargaining Agent and Certification Election Proceedings ................................................... 54

1. Voluntary Recognition

2. Certification Election

i. Procedure for Petition for Certification Election
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SeeANNEX H

ii. Procedure for Conduct of Certification Election

SeeANNEX I

C. Bars to Certification Election ..........................................................................591. Contract Bar

2. Deadlock Bar

3. Negotiation Bar

4. Certification Year Rule Bar

D. Administration If Agreement; Grievance and Voluntary Arbitration....................... 59

1. Establishments of Grievance Machinery

2. Procedure in Handling Grievances

SeeANNEX JE. Labor Management Cooperation Schemes......................................................................... 61

IV. STRIKES, LOCKOUTS AND CONCERTED ACTIONS........................................................ 61

A. Strike.. ............................................................................................................... 61

B. Lockout.............................................................................................................. 61

C. Notice of Strike or Lockout......................................................................... 62

D. Prohibited Activities During Strike or Lockouts. ............................................. 63

E. Injunction.. ......................................................................................................... 63

F. Assumption of Jurisdiction by DOLE Secretary .................................................... 63

G. Powers of the President Under Article 263 (g). ........................................................ 64

V. POST EMPLOYMENT ........................................................................................................ 65

A. Regular, Casual, Probationary Employment .......................................... 65

1. Regular Employment

2. Casual Employment

3. Fixed-Term Employment

4. Project Employment

5. Probationary Employment

6. Seasonal Employment

B. Security of Tenure...................................................................................... 67

1. ARTICLE 279: Security of Tenure

C. Just Causes, Authorized Causes, Constructive Dismissal ................................... 67

1. ARTICLE 282: Just Causes for Termination by Employer

2. ARTICLE 283: Authorized Causes for Termination
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3. Constructive Dismissal

4. ARTICLE 284: Disease as Ground for Termination

5. ARTICLE 285: Termination by Employee

6. ARTICLE 286: When Employment Not Deemed TerminatedD. Due Process.. ....................................................................................................... 70

1. ARTICLE 277 (b): Miscellaneous Provisions

E. Reliefs for Illegal Dismissal............................................................................ 71

F. Retirement ..................................................................................................... 72

1. ARTICLE 287: Retirement

VI. DISPUTE SETTLEMENT....................................................................................................... 72

A. Jurisdiction of the Different Agencies................................................................ 72

1. Bureau of Labor Relations2. Labor Arbiters

3. NLRC

4. Med-Arbiters/BLR

5. POEA

6. DOLE Regional Directors

7. NCMB

SeeANNEX L

B. Procedure.......................................................................................................... 74

C. Appeal.. ........................................................................................... 75

1. Appeal of LAs Decision

2. Appeal Involving Monetary Award

3. Appeal of Voluntary Arbitrators Decision

4. Appeal of BLRs Decision

5. Appeal of Regional Directors Decision Under Article 129

VII. PENAL PROVISIONS AND LIABILITIES ............................................................................. 77
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SOCIAL LEGISLATION

I. THIRTEENTH MONTH PAY (P.D. 851)............................................................................. 78

II. ANTI-SEXUAL HARASSMENT ACT OF 1995 (RA 7877).................................................... 78III. EXECUTIVE ORDER NO. 180............................................................................................... 79

IV. SALIENT PROVISIONS OF THE SSS LAW AND GSIS LAW

SeeANNEX O

V. NATIONAL HEALTH INSURANCE ACT OF 1995 (R.A. 7875)............................................ 80
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ATENEOCENTRALBAROPERATIONS 2007

Labor Law & Social LegislationSUMMER REVIEWER

Adviser: Atty. Marlon J . Manuel;Head: Ryan Quan; Understudy: Kate Sabado;Labor Standards: Kukay Malabanan; Labor Relations: Peewee Estrella; Social Legislation: Binkki Hipolito



LABOR STANDARDS

I. GENERAL PRINCIPLES

Labor Code principal labor law of the country. Buteven now, there are Labor Laws that are not found inthe Labor Code.

Social Legislation the promotion of the welfare ofall the people, the adoption by the government ofmeasures calculated to insure economic stability ofall the component elements of society thru themaintenance of proper economic and socialequilibrium in the interrelations of the members of thecommunity, constitutionally, thru the adoption ofmeasures legally justifiable, or extra-constitutionally,

thru the exercise of powers underlying the existenceof all governments, on the time honored principle ofsalus populi esta suprema lex(Calalang v. Williams,02 December 1940)

Social Justice humanization of laws and theequalization of social and economic forces by theState so that justice in its rational and objectivesecular conception may at least be approximated

Labor Standards sets out the minimum terms,conditions, and benefits of employment thatemployers must provide or comply with and to which

employees are entitled as a matter of legal right

Labor Relations defines the status, rights andduties, as well as the institutional mechanisms thatgovern the individual and collective interactionsbetween employers, employees and theirrepresentatives

Art. 3. Declarat ion of basic pol icy Afford protection to labor Promote full employment Ensure equal work opportunities regardless of

sex, race, or creed

Regulate the relations between workers andemployers Assure workers rights to self-organization,

collective bargaining, security of tenure, and justand humane conditions of work

Seven basic rights of workers guaranteed by theConstitution:1. right to organize2. to conduct collective bargaining or negotiation

with management

3. to engage in peaceful concerted activities,including strike in accordance with law

4. to enjoy security of tenure

5. to work under humane conditions6. to receive a living wage7. to participate in policy and decision-making

processes affecting their rights and benefits asmay be provided by law.

Art. 4. Construct ion in favor of labor When the interest of labor and capital collide, the

heavier influence of capital should becounterbalanced with the sympathy andcompassion of law for the less privilegedworkers. But protection to labor does not meanoppression or destruction of capital. The

employers act will be sustained when it is in theright. [Eastern Shipping Lines v. POEA, 166SCRA 523 (1998)]

Court decisions adopt a liberal approach thatfavors the exercise of labor rights. The mandateis simply to resolve doubt in favor of labor. Ifthere is no doubt in implementing and interpretingthe law, labor will enjoy no built-in advantage andthe law will have to be applied as it is.

When the subject matter is covered by the LaborCode, doubts which involve implementation andinterpretation of labor laws should be resolved infavor of labor, even if the question involves Rules

of Evidence.

Management Rights / Prerogative except aslimited by special laws, an employer is free toregulate, according to his own discretion and

judgment, all aspects of employment, including hiring,work assignments, working methods, time, place andmanner of work, tools to be used, processes to befollowed, supervision of workers, working regulations,transfer of employees, work supervision, lay-off ofworkers and the discipline, dismissal and recall ofworkers

Capitol Medical Center, Inc. v. Meris (16September 2005)As long as the companys exercise of the same is

exercised in good faith for the advancement of theemployers interest, and not for the purpose ofdefeating or circumventing the rights of theemployees under special laws or valid agreements,the courts will uphold them.


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Philippine Blooming Mills Employees Associationv. Philippine Blooming Mills, GR No. L-31195, 05June 1973

The primacy of human rights freedom ofexpression, of peaceful assembly and of petition for

redress of grievances over property rights has beensustained.

PAL v. NLRC, GR No. 85985 (1993)The exercise of management prerogatives is not

unlimited. A line must be drawn betweenmanagement prerogatives regarding businessoperations per se and those which affect the rights ofemployees. In treating the latter, management shouldsee to it that its employees are at least properlyinformed of its decisions and modes of action.

Art. 5. Rules and regu lat ions Department of Labor and Employment (DOLE) Lead agency in enforcing labor laws and it

possesses rule-making power in the enforcementof the Code

But a rule or regulation that exceeds theDepartments rule-making authority is void.

Art. 6. Appl icabi li ty of Labor Code Applies alike to all workers, except as otherwise

provided by law, whether agricultural or non-agricultural.

Applies to a government corporation incorporatedunder the Corporation Code

II. EMPLOYER EMPLOYEE RELATIONSHIP(EER)

A. ELEMENTS OF RELATIONSHIP

Jurisprudential Tests to Determine Existence ofEER:

A. The employer has the abi li ty (need not beactual)to exercise control over the following:

1. Payment of Wagespayment of compensation by way ofcommission does not militate against theconclusion EER exists. Under Art. 97 of theLabor Code, "wage" shall mean "howeverdesignated, capable of being expressed interms of money, whether fixed or ascertainedon a time, task, price or commission basis"(Insular Life Assurance Co., Ltd. V. NLRC,GR No.119930, 12 March 1998)

Wages are defined as remuneration orearnings, however designated, capable ofbeing expressed in terms of money, whetherfixed or ascertained on a time, task, piece orcommission basis, or other method of

calculating the same, which is payable by anemployer to an employee under a written orunwritten contract of employment for workdone or to be done, or for services renderedor to be rendered, and included the fair andreasonable value, as determined by theSecretary of Labor, of board, lodging, orother facilities customarily furnished by theemployer to the employee. [Ruga v. NLRC,181 SCRA 266 (1990)]

2. Hiring employment relation arises fromcontract of hire, express or implied [Ruga v.NLRC, 181 SCRA 266 (1990)]

Selection and engagement of theworkers rests with the employersNot a conclusive test since it can beavoided by the use of subcontractingagreements or other contracts other thanemployment contracts

3. Firing disciplinary power exercised byemployer over the worker and the correspondingsanction imposed in case of violation of any of itsrules and regulations

4. Control, not only over the end product / RESULTof the work, but more importantly, control overthe MEANS through which the work isaccomplished. (most essential element; without

it, there is no EER)

B. Economic Relations Test a subordinate /alternative test. Existing economic conditionsbetween the parties are used to determine whetherEER exists.1. payment of PAG-IBIG Fund contributions2. payment / remittance of contributions to the State

Insurance Fund3. deduction of withholding tax4. deduction / remittance of SSS contributions

Insular Life Assurance Co., Ltd. v. NLRC, GR No.

119930, 12 March 1998The employment status of a person is defined

and prescribed by law and not by what the partiessay it should be.

Algon Engineering Const ruct ion Corp. v. NLRC,GR No. 83402, 06 October 1997

No particular evidence is required to prove theexistence of an EER. All that is necessary is to showthat the employer is capable of exercising controlover the employee. In labor disputes, it suffices that


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there be a causal connection between the claimasserted and the EER. Control of the employee'sconduct is commonly regarded as the most crucialand determinative indicator of the presence orabsence of an employer-employee relationship.

Aurora Land Projects Corp. v. NLRC, GR No.114733, 02 January 1997

Whenever the existence of EER is in dispute,four elements constitute the reliable yardstick (four-fold test); (a) the selection and engagement of theemployee; (b) the payment of wages; (c) the power ofdismissal; and (d) the employer's power to control theemployee's conduct. It is the so-called "control test,"and that is whether the employer controls or hasreserved the right to control the employee not only asto the result of the work to be done but also as to themeans and methods by which the same is to beaccomplished, which constitute the most importantindex of the existence of the employer-employeerelationship Stated otherwise, an EER exists wherethe person for whom the services are performedreserves the right to control no only the end to beachieved but also the means to be used in reachingsuch end.

Filipinas Broadcasting Network, Inc. v. NLRC, GRNo. 118892, 11 March 1998

There could be no EER where "the element ofcontrol is absent; where a person who works foranother does so more or less at his own pleasureand is not subject to definite hours or conditions of

work; and in turn is compensated according to theresult of his efforts and not the amount thereof, weshould not find that the relationship of employer-employee exists."

Dy Keh Beng v. International Labor, GR No. L-32245, 25 May 1979

It should be borne in mind that the control testcalls merely for the existence of the right to controlthe manner of doing the work, not the actual exerciseof the right.

AFP Mutual Benefi t Association v. NLRC, GR No.

102199, 28 January 1997However, not all that glitters is control. The

fact that private respondent was required to solicitbusiness exclusively for petitioner could hardly beconsidered as control in labor jurisprudence. UnderMemo Circulars No. 2-81 and 2-85 issued by theInsurance Commissioner, insurance agents arebarred from serving more than one insurancecompany, in order to protect the public and to enableinsurance companies to exercise exclusivesupervision over their agents in their solicitation work.

Thus, the exclusivity restriction clearly springs from aregulation issued by the Insurance Commission, andnot from an intention by petitioner to establish controlover the method and manner by which privaterespondent shall accomplish his work. This feature is

not meant to change the nature of the relationshipbetween the parties, nor does it necessarily imbuesuch relationship with the quality of controlenvisioned by the law.

So too, the fact that private respondent wasbound by company policies, memo/circulars, rulesand regulations issued from time to time is also notindicative of control. With regard to the territorialassignments given to sales agents, this too cannot beheld as indicative of the exercise of control over anemployee. Further, not every form of control that aparty reserves to himself over the conduct of theother party in relation to the services being renderedmay be accorded the effect of establishing anemployer-employee relationship.

Ruga v. NLRC, 181 SCRA 266 (1990)The employer-employee relationship between the

crew members and the owners of the fishing vesselsengaged in deep-sea fishing is merely suspendedduring the time the vessels are drydocked orundergoing repairs or being loaded with thenecessary provisions for the next fishing trip. Thesaid ruling is premised on the principle that all theseactivities i.e., drydock, repairs, loading of necessaryprovisions, form part of the regular operation of thecompany fishing business.

B. INDEPENDENT CONTRACTORS ANDLABOR-ONLY CONTRACTORS

IndependentContractors

Labor OnlyContractors

has sufficient substantialcapital OR investment inmachinery, tools orequipment directly orintended to be related tothe job contracted

has NO substantialcapital OR investment inthe form of machinery,tools or equipment

carries an independent

business different fromthe employers

has no independent

business

undertakes to performthe job under its ownaccount andresponsibility, FREE fromthe principals control

performs activitiesdirectly related to themain business of theprincipal

NO EER except whenthe contractor orsubcontractor fails to paythe employees wages.

Principal treated as directemployer of the personrecruited in all instances(contractor is deemed


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agent of the principal)

LIMITED liability(principal solidarily liablewith contractor orsubcontractor only when

latter fails to comply withrequirements as tounpaid wages and otherlabor standardsviolations.

Principals liabilityextends to all rights,duties and liabilitiesunder labor standard

laws including the right toself-organization

PERMISSIBLE PROHIBITED

Contracting or subcontracting an arrangementwhereby a principal agrees to put out or farm out witha contractor or subcontractor the performance orcompletion of a specific job, work or service within adefinite or predetermined period, regardless ofwhether such job, work or service is to be performed

or completed within or outside the premises of theprincipal

Contractor or subcontractor any person or entityengaged in a legitimate contracting or subcontractingarrangement

Contractual employee one employed by acontractor or subcontractor to perform or complete a

job, work or service pursuant to an arrangementbetween the latter and a principal

Principalany employer who puts out or farms out ajob, service or work to a contractor or subcontractor

Permissib le Job Contracting; Conditionsa. The contractor carries on an independent

business;b. Undertakes the contract work on his own account

under his own responsibility according to his ownmanner and method, free from the control anddirection of his employer or principal in all mattersconnected with the performance of the workexcept as to the results thereof; and

c. The contractor has substantial capital orinvestment in the form of tools, equipment,machineries, work premises, and other materials

which are necessary in the conduct of hisbusiness.

Labor-only Contracting an arrangement wherethe contractor or subcontractor merely recruits,supplies or places workers to perform a job, work orservice for a principal, and any of the followingelements are present:1. The contractor or subcontractor does not have

substantial capital or investment which relates tothe job, work or service to be performed

2. The employees recruited, supplied or placed bysuch contractor or subcontractor are performingactivities which are directly related to the mainbusiness of the principal; or

3. The contractor does not exercise the right to

control over the performance of the work of thecontractual employee.

Substantial capital or investment capital stocksand subscribed capitalization in the case ofcorporations, tools, equipment, implements,machineries and work premises, actually and directlyused by the contractor or subcontractor in theperformance or completion of the job, work or servicecontracted out.

Right to Control right reserved to the person forwhom the services of the contractual workers areperformed, to determine not only the end to beachieved, but also the manner and means to be usedin reaching that end.

The test to determine whether one is a job orlabor-only contractor is to look into the elementsof a job contractor. If ALL elements of a jobcontractor are present, then he is a jobcontractor. Otherwise, he is a labor-onlycontractor. Absent one of the elements for beinga job contractor, the person is a labor-onlycontractor.

On the other hand, not all requisites of a labor-only contractor need to be present. As long as

any one of the elements is present, then theperson is a labor-only contractor.

Posting of Bondan employer or indirect employermay require the contractor or subcontractor to furnisha bond equal to the cost of labor under contract, oncondition that the bond will answer for the wages duethe employees should the contractor orsubcontractor, as the case may be, fail to pay thesame

Civil liability of employer and contractors Everyemployer or indirect employer shall be jointly and

severally liable with his contractor or sub-contractorfor the unpaid wages of the employees of the latter.Such employer or indirect employer may require thecontractor or sub-contractor to furnish a bond equalto the cost of labor under contract on condition thatthe bond will answer for the wages due theemployees should the contractor or subcontractor, asthe case may be, fail to pay the same

Liability of the principal to the employee in casesof illegal dismissal


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1. Joint and several with the employer, but with theright to reimbursement from the employer-contractor

2. Wage differentials only to the extent where theemployee performed the work under the

principal.3. Separation pay and backwages, only when theprincipal has some relation to the termination(such as when he conspired to terminate)(Rosewood Processing Inc. v. NLRC, GR Nos.116476-84, 21 May 1998)NOTE: this ruling is an obiter and made anunjustified interpretation of Art. 109 of the LaborCode. Art. 109 makes the principal liable in illegaldismissal WON there was fault on his part.

Prohib ited Acts (DO 18-02):a. Contracting out of a job, work or service when not

done in good faith and not justified by theexigencies of the business and the same resultsin the termination of regular employees andreduction of work hours or reduction or splitting ofthe bargaining unit

b. Contracting out of work with a "cabo" as definedin Section 1 (ii), Rule I, Book V of these Rules."Cabo" refers to a person or group of persons orto a labor group which, in the guise of a labororganization, supplies workers to an employer,with or without any monetary or otherconsideration whether in the capacity of an agentof the employer or as an ostensible independent

contractor

c. Taking undue advantage of the economicsituation or lack of bargaining strength of thecontractual employee, or undermining hissecurity of tenure or basic rights, orcircumventing the provisions of regularemployment, in any of the following instances:i. In addition to his assigned functions,

requiring the contractual employee toperform functions which are currently beingperformed by the regular employees of theprincipal or of the contractor or

subcontractor;ii. Requiring him to sign, as a precondition to

employment or continued employment, anantedated resignation letter; a blankpayroll; a waiver of labor standardsincluding minimum wages and social orwelfare benefits; or a quitclaim releasingthe principal, contractor or subcontractorfrom any liability as to payment of futureclaims; and

iii. Requiring him to sign a contract fixing theperiod of employment to a term shorterthan the term of the contract between theprincipal and the contractor orsubcontractor, unless the latter contract is

divisible into phases for which substantiallydifferent skills are required and this ismade known to the employee at the time ofengagement

d. Contracting out of a job, work or service throughan in-house agency which refers to a contractoror subcontractor engaged in the supply of laborwhich is owned, managed or controlled by theprincipal and which operates solely for theprincipal

e. Contracting out of a job, work or service directlyrelated to the business or operation of theprincipal by reason of a strike or lockout whetheractual or imminent

f. Contracting out of a job, work or service beingperformed by union members when such willinterfere with, restrain or coerce employees in theexercise of their rights to self organization asprovided in Art. 248 (c) of the Labor Code, asamended

Existence of EER The contractor or subcontractorshall be considered the employer of the contractualemployee for purposes of enforcing the provisions of

the Labor Code and other social legislation.

The principal, however, shall be solidarily liablewith the contractor in the event of any violation ofany provision of the Labor Code, including thefailure to pay wages.

The principal shall be deemed the employer ofthe contractual employee in any of the followingcases as declared by a competent authority:a. where there is labor-only contracting; orb. where the contracting arrangement falls

within the prohibited acts

Registration of Contractors and Subcontractors The registration of contractors and

subcontractors shall be necessary for purposesof establishing an effective labor marketinformation and monitoring.

Failure to register shall give rise to thepresumption that the contractor is engaged inlabor-only contracting.

Neri v . NLRC, GR Nos. 97008-09, 23 July 1993


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The law does not require both substantial capitaland investment in the form of tools, equipment andmachineries. This is clear from the use of theconjunction or. If the intention was to require thecontractor to prove that he has both capital and the

requisite investment, then the conjunction andshould have been used.

While these services (janitorial, security and eventechnical or other specific services) may beconsidered directly related to the principal businessof the employer, nevertheless, they are notnecessary in the conduct of the principal business ofthe employer.

Lapanday Agricultural Devt Corp. v. CA, GR No.112139, 31 January 2000

It will be seen from the above provisions that theprincipal (petitioner) and the contractor (respondent)are jointly and severally liable to the employees fortheir wages. The joint and several liability of thecontractor and the principal is mandated by the LaborCode to assure compliance with the provisionstherein including the minimum wage. The contractoris made liable by virtue of his status as directemployer. The principal, on the other hand, is madethe indirect employer of the contractor's employees tosecure payment of their wages should the contractorbe unable to pay them. Even in the absence of anEER, the law itself establishes one between theprincipal and the employees of the agency for alimited purpose i.e. in order to ensure that theemployees are paid the wages due them.

Several factors to consider to Determine WhetherContractor is carrying on an independentbusiness:1. nature and extent of work2. skill required3. term and duration of the relationship4. right to assign the performance of specified

pieces of work5. control and supervision of worker6. power of employer with hiring, firing, and

payment of wages7. control of the premises

8. duty to supply premises, tools, appliances,materials and labor

9. mode, manner, terms of payment (Vinoya v.NLRC, GR No. 126286, 02 February 2000)

C. SPECIAL CASES

1. Working scholars no EER between studentson one hand, and schools, colleges oruniversities on the other, where:

a. there is written agreement between themunder which the former agree to work for thelatter in exchange for the privilege to studyfree of charge

b. provided, the students are given real

opportunities, including such facilities as maybe reasonable and necessary to finish theirchosen courses under such agreement

2. Resident physic ians in training There is EERbetween resident physicians and the traininghospital unless:a. There is a training agreement between themb. The training program is duly accredited or

approved by the appropriate governmentagency.

III. PRE-EMPLOYMENT

A. PRINCIPLES AND DEFINITIONS

JMM Promotion & Management Inc. v. CA, GR No.120095, 05 August 1996

The POEA Rules are clear. A reading thereofreadily shows that in addition to the cash and suretybonds and the escrow money, an appeal bond in anamount equivalent to the monetary award is requiredto perfect an appeal from a decision of the POEA.Obviously, the appeal bond is intended to furtherinsure the payment of the monetary award in favor ofthe employee if it is eventually affirmed on appeal to

the NLRC. Overseas recruiters are subject to morestringent requirements because of the special risks towhich our workers abroad are subjected by theirforeign employers, against whom there is usually nodirect or effective recourse. The overseas recruiter issolidarily liable with the foreign employer. The bondsand the escrow money are intended to insure morecare on the part of the local agent in its choice of theforeign principal to whom our overseas workers areto be sent. Every intendment of the law must beinterpreted in favor of the working class, conformablyto the mandate of the Constitution. By sustainingrather than annulling the appeal bond as a further

protection to the claimant employee, this Courtaffirms once again its commitment to the interests oflabor.

PNB v. Cabansag, GR No. 157010, 21 June 2005Noteworthy is the fact that respondent likewise

applied for and secured an Overseas EmploymentCertificate from the POEA through the PhilippineEmbassy in Singapore. The Certificate, issued onMarch 8, 1999, declared her a bona fide contractworker for Singapore. Under Philippine law, this


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document authorized her working status in a foreigncountry and entitled her to all benefits and processesunder our statutes. Thus, even assuming that shewas considered at the start of her employment as adirect hire governed by and subject to the laws,

common practices and customs prevailing inSingapore she subsequently became a contractworker or an OFW who was covered by Philippinelabor laws and policies upon certification by thePOEA. At the time her employment was illegallyterminated, she already possessed the POEAemployment Certificate.Whether employed locally oroverseas, all Filipino workers enjoy the protectivemantle of Philippine labor and social legislation,contract stipulations to the contrary notwithstanding.This pronouncement is in keeping with the basicpublic policy of the State to afford protection to labor,promote full employment, ensure equal workopportunities regardless of sex, race or creed, andregulate the relations between workers andemployers.

B. RECRUITMENT AND PLACEMENT

1. Definition: Illegal Recruitment; Prohibited Acts

Recruitment and Placement any act of(CETCHUP) canvassing, enlisting, transporting,contracting, hiring, utilizing or procuring workers andincludes (CRAP) includes contract services, referrals,advertising for employment, promising for

employment locally or abroad, whether for profit ornot: Provided, That any person or entity which, in anymanner, offers or promises for a fee, employment totwo or more persons shall be deemed engaged inrecruitment and placement

Prohibited Practices1. To charge or accept, directly or indirectly, any

amount greater than that specified in theschedule of allowable fees prescribed by theSecretary of Labor, or to make a worker pay anyamount greater than that actually received by himas a loan or advance

2. To furnish or publish any false notice or

information or document in relation to recruitmentor employment

3. To give any false notice, testimony, informationor document or commit any act ofmisrepresentation for the purpose of securing alicense or authority under this Code

4. To induce or attempt to induce a worker alreadyemployed to quit his employment in order to offerhim to another unless the transfer is designed to

liberate the worker from oppressive terms andconditions of employment

5. To influence or to attempt to influence any personor entity not to employ any worker who has notapplied for employment through his agency

6. To engage in the recruitment or placement ofworkers in jobs harmful to public health ormorality or to the dignity of the Republic of thePhilippines

7. To obstruct or attempt to obstruct inspection bythe Secretary of Labor or by his duly authorizedrepresentatives

8. To fail to file reports on the status of employment,placement vacancies, remittance of foreignexchange earnings, separation from jobs,departures and such other matters or informationas may be required by the Secretary of Labor

9. To substitute or alter employment contractsapproved and verified by the Department ofLabor from the time of actual signing thereof bythe parties up to and including the periods ofexpiration of the same without the approval of theSecretary of Labor

10. To become an officer or member of the Board ofany corporation engaged in travel agency or tobe engaged directly or indirectly in themanagement of a travel agency

11. To withhold or deny travel documents fromapplicant workers before departure for monetaryor financial considerations other than thoseauthorized under this Code and its implementingrules and regulations

12. Failure to actually deploy without valid reason asdetermined by DOLE

13. Failure to reimburse expenses incurred by theworker in connection with his documentation andprocessing for purposes of deployment, in caseswhere the deployment does not actually takeplace without the workers fault

Art. 38. Illegal recruitment Any recruitment activities, including the prohibited

practices enumerated under Article 34 of thisCode, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and

punishable under Article 39 of this Code. TheDepartment of Labor and Employment or any lawenforcement officer may initiate complaints.

People v. Panis, 142 SCRA 664 (1986)The number of persons dealt with is not the basis

in determining WON an act constitutes recruitmentand placement. Any of the acts mentioned in Article13 (b) will constitute recruitment and placement evenif only one prospective worker is involved. In thatcase, a license or authority from POEA is needed.


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The proviso about two or more persons merely laysdown a rule of evidence: where fee is collectedbecause of a promise or offer of employment to twoor more prospective workers, the individual or entitydealing with them shall be deemed to be engaged in

the act of recruitment and placement. The wordsshall be deemed create that presumption.

Labor CodeRA 8042 Overseas

Filipinos and OverseasMigrant Workers Act

local recruitment andemployment

applies to recruitment foroverseas employment

Illegal Recruitment(Art. 38):Any recruitment

activity includingProhibited Acts

under Art. 34committed by non-licensees or non-holders of authority.

Elements:1. That the offenderhas no valid licenseor authority requiredby law to enable oneto lawfully engage inrecruitment andplacement ofworkers; and,2. That the offenderundertakes eitherany activity withinthe meaning ofrecruitment andplacement definedunder Article 13(b),or any prohibitedpracticesenumerated under

Article 34.

Illegal Recruitment (Sec.6): Any recruitment activity

committed by non-licensees / non-holders

of authority; ORProhibited Acts (same

as Art. 34 of LC)committed by anyperson, whether a non-licensee, non-holder,licensee or holder ofauthority.

Added the following inthe list of Prohibited

Acts:1. fail to actually deploywithout valid reason;

2. fail toreimburse expensesincurred by the workerin connection withhis/her documentationand processing forpurposes ofdeployment, in caseswhere the deploymentdoes not actually takeplace without theworkers fault.

To prove illegal recruitment, it must be shown

that the accused gave the distinct impression thathe had the power or ability to send complainantsabroad for work such that the latter wereconvinced to part with their money in order to bedeployed.

A person is guilty of illegal recruitment when hegives the impression that he has the power tosend workers abroad.

Illegal recruitment involving economic sabotage

1. By a syndicate carried out by a group of 3 ormore persons confederating with one another

2. In large scale committed against 3 or morepersons individually or as a group

People v. Fernandez, et. al., 07 March 2002These categories are separate or independentcategories. If there is only one complainant in severalcomplaints, there is no illegal recruitment in large. Butwhere there are three conspiring recruiters, there isillegal recruitment by a syndicate.

Non-licensee / Non-Holder of authority anyperson, corporation or entity which has not beenissued a valid license or authority to engage inrecruitment and placement by the Secretary of Labor,or whose license or authority has been suspended,revoked or cancelled by the POEA or the Secretary

Who are liable: Principals, accomplices, and accessories For juridical persons, the officers having control,

management or direction of their business shallbe liable.

Where illegal recruitment is proved but theelements of large scale or syndicate areabsent, the accused can be convicted only ofsimple illegal recruitment. (People v. Sagun, GRNo. 110554, 19 February 1999)

Illegal recruitment (IR) involving EconomicSabotage (Art. 38 (b) Labor Code & Sec. 10 RA

8042):1. IR committed by syndicate carried out by a

group of 3 or more persons conspiring and/orconfederating with one another in carrying outany unlawful or illegal transaction, enterprise orscheme falling under illegal recruitment

2. IR committed in large scale - committed against 3or more persons individually or as a group

Estafa a person convicted for illegal recruitmentunder Labor Code can be convicted for violation ofthe Revised Penal Code provisions on estafaprovided the elements of the crime are present.

Art. 39 (c) of Labor Code unconst itut ional Only a Judge may issue warrants of search andarrest. The labor authorities must go through the

judicial process.

Venue filed with the RTC of the province or city, Where offense committed; OR Where offended party actually resides at the time

of the commission of the offense


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Prescriptive Periods: Simple IR within 5 years from time IR

happened Economic Sabotage within 20 years from time

IR happened

People v. Diaz, 259 SCRA 441 (1996)The acts of the appellant, which were clearly

described in the lucid testimonies of the three victims,such as collecting from each of the complainantspayment for passport, medical tests, placement fee,plane tickets and other sundry expenses, promisingthem employment abroad, contracting andadvertising for employment, unquestionablyconstitute acts of large scale illegal recruitment.

Aquino v. CA, 204 SCRA 240 (1991)Receipt of payments, after the expiration of the

license, for services rendered before said expirationdoes not constitute illegal recruitment. Recruitmentrefers to the offering of inducements to qualifiedpersonnel to enter a particular job or employment.The advertising, the promise of future employmentand other come-ons took place while Ms. Aquino wasstill licensed. True, the payments for servicesrendered are necessary consequences of theapplications for overseas employment. However, it isasking too much to expect a licensed agency toabsolutely at the stroke of midnight stop alltransactions on the day its license expires and refuseto accept carry-over payments after the agency isclosed. In any business, there has to be a winding-up

after it ceases operations. The collection of unpaidaccounts should not be the basis of a criminalprosecution.

The prosecution is based on the date of theprohibited activity, not on the payments being illegalexactions even if effected during the correct period.The payments are necessary in order to defray theexpenses entailed in any overseas contract ofemployment. They are intended for administrativeand business expenses and for the travellingexpenses of the applicants once cleared for overseastravel.

People v. Senoron, 267 SCRA 278 (1997)According to the Labor Code, it is not the

issuance or signing of receipts for the placement feesthat makes a case for illegal recruitment, but ratherthe undertaking of recruitment activities without thenecessary license or authority. Absent any otherparticipation in the IR activities, mere receiving ofplacement fees or signing of receipt do not constituteIR.

Darvin v. CA, 292 SCRA 534 (1998)

By themselves, procuring a passport, airlinetickets and foreign visa for another individual, withoutmore, can hardly qualify as recruitment activities. IRmust be proved beyond reasonable doubt.

2. Regulation of Recruitment and PlacementActivities

Entities authorized to engage in recruitment andplacementa. public employment officesb. Philippine Overseas Employment Administration

(POEA)c. private recruitment entitiesd. private employment agenciese. shipping or manning agents or representativesf. such other persons or entities as may be

authorized by the DOLE Secretary

g. construction contractors

Is direct-hiring of OFWs allowed? Why? No. Employers cannot directly hire workers for

overseas employment except through authorizedentities see (enumeration above).

The reason for the ban is to ensure full regulationof employment in order to avoid exploitation.

Fees to be Paid by Workers: No worker shall be charged with any fee until

employee: (1) obtained work through recruitersefforts; and (2) worker has actually commencedworking.

Placement fee in an amount equivalent to onemonths salary of the worker and documentationcosts are the ONLY AUTHORIZED PAYMENTSthat may be collected from a hired worker.

Eastern Assurance and Surety Corp. v. Secretaryof Labor, 181 SCRA 110 (1990)

POEA has the power to order refund of illegallycollected fees. Implicit in its power to regulate therecruitment and placement activities of all agencies isthe award of appropriate relief to the victims of theoffenses committed by the respondent agency orcontractor. Such relief includes the refund or

reimbursement of such fees as may have beenfraudulently or otherwise illegally collected, or suchmoney, goods or services imposed and accepted inexcess of what is licitly prescribed.

Nature of the liability of local recruitment agencyand foreign principal1. Local Agency is solidarily liable with foreign

principal.


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2. Severance of relations between local agent andforeign principal does not affect liability of localrecruiter.

Joint and solidary liability of recruiter with

Foreign Principal A recruitment agency is solidarily liable for the

unpaid salaries of a worker it recruited foremployment overseas.

Even if the recruiter and the principal had alreadysevered their agency agreement at the timeemployee was injured, the recruiter may still besued for a violation of the employment contractbecause no notice of the agency agreement'stermination was given to the employee.

Catan v. NLRC, 160 SCRA 691 (1988)This must be so, because the obligations

covenanted in the recruitment agreement enteredinto by and between the local agent and its foreignprincipal are not coterminous with the term of suchagreement so that if either or both of the partiesdecide to end the agreement, the responsibilities ofsuch parties towards the contracted employees underthe agreement do not at all end, but the sameextends up to and until the expiration of theemployment contracts of the employees recruitedand employed pursuant to the said recruitmentagreement. Otherwise, this will render nugatory thevery purpose for which the law governing theemployment of workers for foreign jobs abroad wasenacted.

Posting of cash bond by recruiter

Capricorn Travel & Tours v. CA, 184 SCRA 123(1990)

The requirement for the posting of a cash bond isalso an indispensable adjunct to the requirement thatthe agency undertakes to assume joint and solidaryliability with the employer for all claims and liabilitieswhich may arise in connection with theimplementation of the contract of overseasemployment and to guarantee compliance withexisting labor and social legislation of the Philippines

and the country of employment. The undertaking toassume joint and solidary liability and to guaranteecompliance with labor laws, and the consequentposting of cash and surety bonds, may be traced allthe way back to the constitutional mandate for theState to "afford full protection to labor, local andoverseas." The peculiar nature of overseasemployment makes it very difficult for the Filipinooverseas worker to effectively go after his foreignemployer for employment-related claims and, hence,public policy dictates that, to afford overseas workers

protection from unscrupulous employers, therecruitment or placement agency in the Philippinesbe made to share in the employer's responsibility.

Stronghold Insurance Co. v. CA, 205 SCRA 605

(1992)The surety bond required of recruitment agenciesis intended for the protection of our citizens who areengaged for overseas employment by foreigncompanies. The purpose is to insure that if the rightsof these overseas workers are violated by theiremployers, recourse would still be available to themagainst the local companies that recruited them forthe foreign principal. The foreign principal is outsidethe jurisdiction of our courts and would probably haveno properties in this country against which anadverse judgment can be enforced. This difficulty iscorrected by the bond, which can be proceededagainst to satisfy that judgment.

Liability of surety In a surety bond, the surety unequivocally bound

itself to answer for all liabilities which the POEAmay adjudge or impose against the principal inconnection with the recruitment of Filipinoseamen

Stronghold Insurance Co. v. CA, 205 SCRA 605(1992)

The surety agreed to answer for whateverdecision might be rendered against the principal,whether or not the surety was impleaded in thecomplaint and had the opportunity to defend itself.There is nothing in the stipulation calling for a direct

judgment against the surety as a co-defendant in anaction against the principal.

Power to suspend or cancel any license orauthority to recruit employees for overseasemployment is concurrently vested with thePOEA and the Secretary of Labor . The penalties of suspension and cancellation of

license or authority are prescribed for violationsof the above quoted provisions, among others.

And the Secretary of Labor has the power under

Section 35 of the law to apply these sanctions, aswell as the authority, conferred by Section 36, notonly to 'restrict and regulate the recruitment andplacement activities of all agencies,' but also to'promulgate rules and regulations to carry out theobjectives and implement the provisions'governing said activities. Pursuant to this rule-making power thus granted, the Secretary ofLabor gave the POEA on its own initiative orupon filing of a complaint or report or uponrequest for investigation by any aggrieved


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person, (authority to) conduct the necessaryproceedings for the suspension or cancellation ofthe license or authority of any agency or entity'for certain enumerated offenses including1. the imposition or acceptance, directly or

indirectly, of any amount of money, goods orservices, or any fee or bond in excess ofwhat is prescribed by the Administration

2. any other violation of pertinent provisions ofthe Labor Code and other relevant laws,rules and regulations.

The Administrator was also given the power to'order the dismissal of the case or the suspensionof the license or authority of the respondentagency or contractor or recommend to theMinister (now Secretary) the cancellation thereof.

3. Contracts

Freedom to Stipulate

Vir-Jen Shipping v. NLRC, 115 SCRA 347 (1992);125 SCRA 577 (1983)

The form contracts approved by the NationalSeamen Board [now POEA] are designed to protectFilipino seamen not foreign shipowners who can takecare of themselves. The standard forms embody thebasic minimums which must be incorporated as partsof the employment contract. They are not collectivebargaining agreements or illimitable contracts whichthe parties cannot improve upon or modify in the

course of the agreed period of time.

Terms and conditions and other benefits notprovided by the minimum requirements are validif the whole employment package is morebeneficial to the worker than the minimum. Butthe stipulations should not contradict law, publicpolicy and morals.

Minimum Provisions for Contract1. Guaranteed wages, for regular working hours

and overtime pay for services rendered beyondregular work hours in accordance with the

standards established by the Administration2. Free transportation from point of hire to site of

employment and return3. Free emergency medical and dental treatment

and facilities4. Just causes for the termination of the contract or

of the services of the workers5. Workmens compensation benefits and war

hazard protection6. Repatriation of workers remains and properties in

case of death to the point of hire, or if this is not

possible under the circumstances, the properdisposition thereof, upon prior arrangement withthe workers next-of-kin and the nearest Embassyor Consulate through the Office of the Labor

Attache

7. Assistance in the remittance of workers salaries,allowances or allotments to his beneficiaries8. Free and adequate lodging facilities or

compensatory food allowance at prevailing costof living standards at the jobsite

4. Dispute Settlement

Regulatory power DOLE Secretary shall have thepower to restrict and regulate the recruitment andplacement activities of all agencies within thecoverage of this Title and is hereby authorized toissue orders and promulgate rules and regulations tocarry out the objectives and implement the provisionsof this Title.

Jurisd iction o f the POEAOriginal and exclusive jurisdiction to hear and decide:a. all cases, which are administrative in character,

involving or arising out of violations of rules andregulations relating to licensing and registrationof recruitment and employment agencies orentities

b. disciplinary action cases and other special cases,which are administrative in character, involvingemployers, principals, contracting partners andFilipino migrant workers

Money Claims of OFWsA worker dismissed from overseas employmentwithout just, valid or authorized cause as defined bylaw or contract, is entitled to:a. full reimbursement of the placement fee with

interest at 12% per annum PLUSb. his salary for unexpired portion of his

employment contract OR salary for 3 months forevery year of the unexpired term, WHICHEVERIS LESSER

3-months option available ONLY IF the

employment contract is for at least one year. Ifthe contract is shorter than that, the salary paidshould be that for the unexpired portion.

Jurisd iction over Money ClaimsLabor Arbiters have jurisdiction over all monetary

claims of Overseas Filipino Workers arising fromemployer-employee relationship or by virtue of anylaw or contract involving Filipino workers for overseasdeployment, including claims for actual, moral,exemplary and other forms of damages.


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C. EMPLOYMENT OF ALIENS

Requisites for Employment of Non-ResidentAl iens

1. working permit from DOLE2. certification that there is no available Filipinowilling and competent to do the job for theemployer

3. alien must train at least two Filipino understudiesfor such undertaking

4. FOR ENTERPRISES REGISTERED INPREFERRED AREAS OF INVESTMENT employment permit issued upon recommendationof government agency charged with thesupervision of said registered enterprise

Exemption from Permit1. All members of Diplomatic Services and foreign

government officials accredited with the Phil.Government

2. Members of international organizations withwhich the Phil. Government is a cooperatingmember (i.e. ADB, IRRI)

3. Missionaries actually engaged in missionary work4. All aliens granted exemption by special laws and

all those whose employment in the Phil. Havebeen determined by the Sec. of Labor to bebeneficial to national interest.

Duration of Permit Valid for 1 year from date of issuance, unless

sooner revoked by the Secretary of Labor Renewable upon showing of good cause Non-transferable

Other Prohibit ions Aliens shall not transfer to another job or change

his employer without prior approval of thesecretary of labor

Non-resident alien shall not take up employmentin violation of the provisions of the Code.

D. HUMAN RESOURCES &MANPOWER DEVELOPMENT

1. Government Machinery

PolicyIt is the policy of the State to provide relevant,

accessible, high quality and efficient technicaleducation and skills development in support of thedevelopment of high-quality Filipino middle-levelmanpower responsive to and in accordance withPhilippine development goals and priorities.

Power and Functions of TESDAResponsible for formulating, continuing,

coordinating, and fully integrating technical educationand skills development policies, plans and programs

2. Apprenticeship and LearnershipLearners Apprentices

What Persons hired astrainees in semi-skilled and otherindustrialoccupations

Non-apprenticeable

May be learnedthrough practicaltraining on the

job in a relativelyshort period oftime

Shall not exceed3 months

Practicaltraining on the

job Supplemented

by relatedtheoreticalinstruction

Covered by awrittenapprenticeshipagreement withan individualemployer orentity

Needs DOLEapproval

Shall notexceed 6months

Whenmay behired

No experiencedworkersavailable

Preventcurtailment ofemployment

opportunities Not to create

unfaircompetition inlabor costs andlower workingstandards

Only in highly-technicalindustries

Only inapprenticeableoccupations

List of learnabletrades providedby TESDA

At least 14years old

Possessesvocationalaptitude andcapacity for

tests Ability to

comprehend Ability to follow

oral and writteninstructions

Any form ofemploymentrequiringbeyond 3 mos.practical


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training on thejobsupplementedby relatedtheoretical

instruction No list

Requisites for a Valid Apprenticeship1. qualifications of apprentice are met2. the apprentice earns not less than 75% of the

prescribed minimum salary3. apprenticeship agreement duly executed and

signed4. apprenticeship program approved by the Sec. of

Labor; otherwise, the apprentice shall be deemedas a regular employee

5. period of apprenticeship not exceed 6 months

At the termination of the apprenticeship, theemployer is not required to continue theemployment.

Employer may not pay wage if the apprenticeshipis

a requirement for graduation

required by the School

required by the Training Program Curriculum

requisite for Board examination

Venue of Apprenticeship Programs The plant, shop, premises of the employer or firm

concerned if the apprenticeship program isorganized by an individual employer or firm.

The premises of one or several firms designatedfor the purpose by the organizer of the program ifsuch organizer is an association of employers,civic groups and the like.

DOLE training center or other public traininginstitutions with which the Bureau has madeappropriate arrangements.

Contents of Learnership Agreement1. names and addresses of employer and learner2. occupation to be learned and the duration of the

training period which shall not exceed 3 months

3. wage of the learner which shall be at least 75%of the applicable minimum wage

4. commitment to employ the learner, if he sodesires, as a regular employee upon completionof training

A learner who has worked during the first twomonths shall be deemed a regular employee iftraining is terminated by the employer before theend of the stipulated period thorough no fault ofthe learner.

V. WORKING CONDITIONS

Coverage

Book III of the Labor Code provides the conditions orstandards of employment. These standards applyonly if there exists EER.

Excluded Employees1. Government employees whether employed by

the National Government or any of its politicalsubdivisions, including those employed inGOCCs

2. Management employees. If they meet ALL of thefollowing conditions:

i. Their primary duty consists of the managementof the establishment in which they areemployed or of a department or subdivisionthereof

ii. They customarily and regularly direct the workof two or more employees therein

iii. They have authority to hire or fire otheremployees of lower rank; or there suggestionsand recommendations as to the hiring andfiring and as to the promotion or any otherchange of status of other employees are givenparticular weight

3. Officers or members of managerial staff if theyperform the following duties and responsibilitiesi. Primary duty consists of performance of work

directly related to management policies of

employerii. Customarily and regularly exercise discretion

and independent judgmentiii. (a) Regularly and directly assist a proprietor

or a managerial employee; (b) Execute undergeneral supervision work along specializedor technical lines requiring special training,experience or knowledge; (c) execute undergeneral supervision special assignments andtasks; and

iv. who do not devote more than 20% of theirhours worked in a workweek to activitieswhich are not directly and closely related to

the performance of work in i-iii above.4. domestic servants and persons in the personal

service of another ifi. they perform such services in the employers

home which are usually necessary ordesirable for the maintenance and enjoymentthereof, or

ii. minister to the personal comfort,convenience, or safety of the employer aswell as members of the employershousehold


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5. workers paid by results, including those who arepaid on piece-work, takaw, pakyaw or task basis

6. non-agricultural field personnel if they regularlyperform their duties away from the principal orbranch office of place of business and whose

actual hours of work in the field cannot bedetermined with reasonable certainty.

Managerial Employees refer to those whoseprimary duty consists of the management of theestablishment in which they are employed or of adepartment or subdivision thereof, and to otherofficers or members of the managerial staff

Field Personnel non-agricultural employees whoregularly perform their duties away from the principalplace of business or branch office of the employerand whose actual hours of work in the field cannot bedetermined with reasonable certainty

Mercidar Fishing Corp. v. NLRC, 297 SCRA 440(1998)

Fishermen are not field personnel sincethroughout the duration of their work, they are underthe effective control and supervision of the employer.

Autobus Transpor t Systems Inc. v. Bautista, GRNo. 156367, 16 May 2005)

It is of judicial notice that along the routes thatare plied by bus companies, there are its inspectorsassigned in strategic places, mandatory once-a-weekcar barn or shop day, drivers/conductors must be at a

specific place at a specific time, as they generallyobserve prompt departure and arrival from their pointof origin to their point of destination. They are underthe constant supervision while in the performance ofthis work. Thus, drivers/conductors are not fieldpersonnel.

B. HOURS OF WORK

Work hours shall not exceed 8. Thus, part-timework, or a days work of less than 8 hours, notprohibited.

Work Day 24-hr period commencing from the timean employee regularly starts to work regardless ofwhether the work is broken or continuous

Calendar Day 24-hr. period commencing at 12midnight and ending at 11:59 p.m.

Compressed Work Week (CWW) Resorted to by the employer to prevent serious

losses due to causes beyond his control, such aswhen there is substantial slump in demand for his

goods and services or when there is lack of rawmaterials.

Instead of working 6 days a week, the employeeswill be regularly working for less than 6 days buteach workday exceeds 8 hrs. For the hours

exceeding 8 in a workday, the employees waivetheir OT pay because, in return, they will nolonger incur transport and other expenses.

Allowed on condition that it is freely agreed uponbetween the employer and majority of theemployees. Further, the arrangement should notdiminish the employees monthly or daily pay ortheir established employment benefits.

Extended workday in CWW should not exceed 12hrs. Work exceeding 12 hrs. in a day or 48 hrs. ina week should be considered OT.

Should the work shift revert to 8 hrs., thereversion shall not constitute a diminution ofbenefits.

Hours of Work of Hospital and Clinic Personnel;Coverage1. all hospitals and clinics situated in cities or

municipalities with a population of 1 million ormore

2. all hospitals and clinics with a bed capacity of atleast 100

Hospitals and Clinics place devoted primarily tomaintenance and operation of facilities for thediagnosis, treatment, and care of individuals sufferingfrom illness, disease, injury or deformity or in need of

obstetrical or other medical and nursing care

Regular Working Hours and Days of Hospital andClinic Personnel Not more than 8 hrs. in any one day and not

more than 40 hrs. in any one week Not more than 5 days in a work week. The

workweek may begin at any hour and on any day

Overtime Work of Hospital and Clinic Personnel May be scheduled to work for more than 5 days

or 40 hrs. a week, provided employee is paid forovertime work

Overtime: additional compensation of regular

wage + at least 30% thereof

Considered as Compensable Hours Worked1. All time during which an employee required to be

on duty or to be at the employers premises or tobe at a prescribed work place; and

2. All time during which an employee suffered orpermitted to work.

3. Rest periods of short duration during workinghours.


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Principles in Determining Hours Worked1. All hours are hours worked which the employee

is required to give to his employer, regardless ofwhether or not such hours are spent in productive

labor or involve physical or mental exertion2. An employee need not leave the premises of theworkplace in order that his rest period shall notbe counted, it being enough that he stopsworking, may rest completely and may leave hisworkplace

3. If the work performed was necessary or itbenefited the employer, or the employee couldnot abandon his work at the end of his normalworking hours because he had no replacement,all time spent or such work shall be consideredas hours worked, if the work was with theknowledge of his employer or immediatesupervisor.

4. The time during which an employee is inactive byreason of interruptions in his work beyond hiscontrol shall be considered working time either ifa. the imminence of the resumption of work

requires the employee's presence at theplace of work; or

b. if the interval is too brief to be utilizedeffectively and gainfully in the employee'sown interest.

Waiting Time Waiting time spent by an employee shall be

considered as working time if

1. waiting is an integral part of his work or2. the employee is required or engaged by the

employer to wait. Working while on call - an employee who is

required to remain on call in the employer'spremises or so close thereto that he cannot usethe time effectively and gainfully for his ownpurpose.

Travel Time

Travel FromHome to Work

Travel that isAl l in Days

Work

Travel Awayfrom Home

Normal travel fromhome to workwhich is not worktime

Time spent byan employeein travel aspart of hisprincipalactivity, liketravel from

jobsite tojobsite duringthe workday

Travel thatkeeps anemployeeaway fromhomeovernight

GR:not Compensable Work time

compensablebecause it is anormal incident ofemployment

Exceptions:1. whereemployeemade to workon anemergencycall and travelis necessary inproceeding tothe workplace

2. travel is donethrough aconveyanceprovided bythe employer

3. travel is doneunder thesupervisionand control ofthe employer

4. travel is doneunder vexinganddangerouscircumstances

and countedas hoursworked

when it cutsacross anemployeesworkdaybecause it

substitutes forthe hours theemployeeshould havebeen in theoffice

Univ. of Pangasinan Faculty Union v. Univ. of

Pangasinan, 127 SCRA 691 (1984)Semestral break of teachers is compensable

hours worked for it is a form of interruption beyondtheir control. Applies only for regular full-timeteachers.

Rada v. NLRC, 205 SCRA 69 (1992)The fact that he picks up employees at certain

specified points in EDSA in going to the project siteand drops them off at the same time on his way backfrom the field office going home to Marikina is notmerely incidental to petitioners job as a driver.

Said transportation arrangement had been

adopted not so much for the convenience of theemployees, but primarily for the benefit of theemployer. Since the assigned task of fetching anddelivering employees is indispensable andconsequently mandatory, then the time required ofand used by petitioner in going from his residence tothe field office and back should be paid as overtimework.

Lectures, Meeting, Trainings, Programs


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NOTconsidered working time if ALL the followingconditions are met:1. Attendance is outside of the employee's

regular working hours2. Attendance is in fact voluntary

3. The employee does not perform anyproductive work during such attendance.

Meal and Rest PeriodsGR:not less than 1 hour time-off for regular meals non-compensable

Except:meal period of not less than 20 mins. in thefollowing cases compensable hours worked:1. Where the work is non-manual work in nature or

does not involve strenuous physical exertion2. Where the establishment regularly operates not

less than 16 hours a day

3. In case of actual or impending emergencies orthere is urgent work to be performed onmachineries, equipment or installations to avoidserious loss which the employer would otherwisesuffer

4. Where the work is necessary to prevent seriousloss of perishable goods

Rest periods or coffee breaksrunning from 5to 20 mins. considered as compensable workingtime.

To shorten meal time to less than 20 mins, is notallowed. If the so-called meal time is less than20 mins., it becomes only a rest period.

Sime Darby Pilipinas v. NLRC, 289 SCRA 86(1998)

The employer may change the meal break from30 mins. fully paid to 60 mins. without pay.

For a full one hour undisturbed lunch break, theemployees can freely and effectively use this hournot only for eating but also for their rest and comfort.Since the employees are no longer required to workduring this 1-hour lunch break, there is no more needfor them to be compensated for this period.

Overtime Pay (OT) work exceeding eight hourswithin the workers 24-hour workday. Work within theEees shift is not overtime.

OT on a Regular Day: regular wage + at least25% thereof

OT on a Holiday/Eees Rest Day: rate of 1st 8

hrs. on holiday/rest day + at least 30% thereof. Since the OT work is considered hourly, the pay

rate is computed also on per hour basis. The

daily wage is divided by 8 to get the hourly baserate.

If employee is paid on a monthly salary basis, thedaily rate is obtained by the following formula:

Daily Rate = monthly salary x 12_____Total no of days considered

paid in a year

Permissible for the employer to stipulate that theemployees monthly salary constitutes paymentfor all the days of the month, including rest daysand holidays, where the employees monthlysalary, when converted by the increased divisorinto its daily equivalent, would still meet minimumwage.

Regular Wage includes the cash wage only,

without deduction on account of facilities provided bythe employer

Conditions to be entitled to OT pay1. Actual rendition of OT work2. Submission of sufficient proof that said work was

actually performed3. OT work is with the knowledge and consent of

the employer

Compulsory OT Work (provided employee paidthe additional compensation required)1. Country at war/National or Local Emergency

2. Completion of work started before the 8th

hourand is necessary to prevent serious obstructionor prejudice to the business

3. Urgent work to be performed on Machines toavoid serious loss or damage to employer

4. Necessary to Prevent loss of life/property orImminent danger to public safety

5. Necessary to prevent loss or damage toperishable goods

6. Necessary to avail of favorable weather orenvironmental condition

Undertime NOT Offset by OT an employees

regular pay rate is lower than the OT rate. Offsettingthe undertime hours against the OT hours wouldresult in undue deprivation of the employees extrapay for OT work.

Right to OT pay cannot be waived. But when thealleged waiver of OT pay is in consideration ofbenefits and privileges which may even exceedthe OT pay, the waiver may be permitted.


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Night Shift Differential (NSD) every employeeshall be paid a night shift differential of not less than10% of his regular wage for each hour of workperformed between ten oclock in the evening and sixoclock in the morning.

NSD = (10% x regular wage/hr.) x no. of hrs. of workbetween 10 pm 6 am

If work done between 10 pm and 6 am is OTwork, the NSD should be based on the OT rate.

Employees NOT Covered by NSD1. Those of the government and any of its political

subdivisions, including government-owned and/orcontrolled corporations

2. Those of retail and service establishmentsregularly employing not more than 5 workers

3. Domestic helpers and persons in the personalservice of another

4. Managerial employees5. Field personnel and other employees whose time

and performance is unsupervised by theemployer including those who are engaged ontask or contract basis, purely commission basis,or those who are paid a fixed amount forperforming work irrespective of the timeconsumed in the performance thereof

C. REST PERIODS AND HOLIDAYS

Weekly Rest Periods applies to all employerswhether operating for profit or not, including publicutilities operated by private persons

Business on Sundays/Holidays Allestablishments and enterprises may operate or openfor business on Sundays and holidays provided thatthe employees are given the weekly rest day and thebenefits as provided.

Weekly Rest Day Every employer shall give hisemployees a rest period of not less than 24consecutive hrs. after every 6 consecutive normal

work days.

Preference of employee The preference of theemployee as to his weekly day of rest shall berespected by the employer if the same is based onreligious grounds.

The employee shall make known his preferenceto the employer in writing at least 7 days before

the desired effectivity of the initial rest day sopreferred.

Where, however, the choice of the employee asto his rest day based on religious grounds willinevitably result in serious prejudice or

obstruction to the operations of the undertakingand the employer cannot normally be expected toresort to other remedial measures, the employermay so schedule the weekly rest day of hischoice for at least 2 days in a month.

Schedule of Rest Daya. Where the weekly rest is given to all employees

simultaneously the employer shall make knownsuch rest period by means of a written noticeposted conspicuously in the work place at leastone week before it becomes effective

b. Where the rest period is not granted to all

employees simultaneously and collectively theemployer shall make known to the employeestheir respective schedules of weekly rest throughwritten notices posted conspicuously in the workplace at least one week before they becomeeffective

Work on Rest Day Authorized (UAAP NAF)1. In case of urgent work to be performed on

machineries, equipment or installations to avoidserious loss which the employer would otherwisesuffer

2. In case of actual or impending emergenciescaused by serious accident, fire, flood, typhoon,

earthquake, epidemic or other disaster orcalamity, to prevent loss of life or property, or incases of force majeure or imminent danger topublic safety

3. In the event of abnormal pressure of workdueto special circumstances, where the employercannot ordinarily be expected to resort to othermeasures

4. To prevent serious lossof perishable goods5. Where the nature of the work is such that the

employees have to work continuously for 7 daysin a week or more, as in the case of the crewmembers of a vessel to complete a voyage and

in other similar cases6. Under other analogousor similar circumstances7. When the work is necessary to avail of favorable

weather or environmental conditions whereperformance or quality of work is dependentthereon.

Other than the above circumstances, noemployee shall be required against his will towork on his scheduled rest day.


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When an employee volunteers to work on his restday under other circumstances, he shall expresssuch desire in writing, subject to payment ofadditional compensation.

An employee shall b

Ateneo 2007 Labor Law (Labor Standards)

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Transcript of Ateneo 2007 Labor Law (Labor Standards)