Labor 101Atty. Edmundo A. Cruz

Recruitment and Placement of Workers Art 13 (b) of the LC. "Recruitment and placement" refers to any act

of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.

Migrant Workers’ Act a.k.a. RA 8042: Sec. 6. DEFINITIONS. - For purposes of this Act, illegal recruitment

shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines. Provided, that such non-license or non-holder, who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any persons, whether a non-licensee, non-holder, licensee or holder of authority.

Recruitment and Placement of Workers

2 laws involved: Labor Code and Migrant Workers Act of 1995 (RA 8042)

The dividing line between Labor Code and MW Act: Place of work, where the worker is going to work, such that: If place of work is Phils, LC applies If place of work is abroad, MWA applies

R & P in the Private Sector: Labor Code does not deny but allows participation of

the private sector in R & P. (A25, LC). Regulatory techniques must be followed: Citizenship requirement (A27), Capitalization (A28), Registration fees (A30), and Reporting requirements on employment status (A32).

But, Travel Agencies are not allowed to conduct R & P as per Art. 26 of the LC.

Hiring Employable age- age of majority or 18

years of age. Exceptions: Child Labor Law (R.A 7610 as amended by R.A 9231 (December 19,

2003) Children- it is illegal to employ children below 5 years old or

those below 18 years old in hazardous occupation Apprentice- At least 14 years old

R.A. 7658, which amended R.A. 7610 as regards the child labor provision prohibits the hiring of children below 15 years old, except those which are non-hazardous and limited strictly to activities that are directly under the sole responsibility of their parents or legal guardian and where only family members are employed; and to cinema, theater, radio and television where their participation is essential. This law requires the active involvement of the DOLE as a regulating body to control the grant of work permits.

EMPLOYMENT OF WOMENART. 130. Nightwork prohibition. - No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: (a)

In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or (b) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the

following day; or (c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours.

ART. 131. Exceptions. - The prohibitions prescribed by the preceding Article shall not apply in any of the following cases: (a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; (b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; (c) Where the work is necessary to prevent serious loss of perishable goods; (d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services; (e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; (f) Where the women employees are immediate members of the family operating the establishment or undertaking; and (g) Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations.

ART. 132. Facilities for women. - The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to: (a) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; (c) To establish a nursery in a workplace for the benefit of the women employees therein; and (d) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like.

ART. 133. Maternity leave benefits. - (a) Every employer shall grant to any pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months, maternity leave of at least two (2) weeks prior to the expected date of delivery and another four (4) weeks after normal delivery or abortion with full pay based on her regular or average weekly wages. The employer may require from any woman employee applying for maternity leave the production of a medical certificate stating that delivery will probably take place within two weeks. (b) The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may be charged. (c) The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after the effectivity of this Code.

ART. 134. Family planning services; incentives for family planning. - (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices. (b) In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.

ART. 135. Discrimination prohibited. - It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.

The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a

female employees as against a male employee, for work of equal value; and

(b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes.

ART. 136. Stipulation against marriage. - It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.

ART. 137. Prohibited acts. - (a) It shall be unlawful for any employer: (1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. (2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.

ART. 138. Classification of certain women workers . - Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation.

Women and MinorsWomen Constitution recognizes the role of women (Art. 2, Sec.14)

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

3 provisions of the LC: 1) re protection the institution of marriage: Art. 136 2) protecting women’s pregnancy: Art. 135 and 3) discrimination provisions on women under certain conditions: Art. 138.

3 Areas of Concern: [a] Institution of marriage – A136 provides for stipulation against marriage.

When does the law apply? Pre-employment and Post-employment.

[b] Law on pregnancy – 2 associated laws: Paternity Leave and Maternity Leave

[c] Discrimination – A135 LC prohibits discrimination against women with respect to terms and conditions of employment solely on account of their sex. There must be equal opportunity, growth, work and pay between male and female employees.

Women (cont’d)Special Women Workers: A138 LC provides for a

classification of certain women workers. Women under certain conditions deemed EEs

when they meet the test of the workplace, meaning, when they are permitted or suffered to work in bars, lounges, night clubs and other similar establishments.

Wage is immaterial: “with or without compensation”

Sec. of Labor should provide rules and regulations re terms and conditions of these women workers

Star Paper case – No spouse employment policy declared invalid.

Women and MinorsMinors There’s recognition in Constitution on the role of minors (Art. 2 Sec. 13) Law: R.A. 7610 Special Protection of Children Against Child Abuse, Exploitation and

Discrimination Act 2 Areas of Concern:

[a] Minimum Employable Age: 15 years old

General. Rule: Below 15 y.o. NOT to be employed

Exceptions: 1) when employed by parents of legal guardian, 2) when employment in entertainment is essential, provided that children are protected from

any hazardous undertaking, both physical and moral hazards

[b] Absolute prohibition on that range: No person shall employ children models in all commercial ads, promoting alcoholic beverages, intoxicating drinks, tobacco and its b-products, and violence (Sec.14 RA 7610)

Main Requisite before Employment: ER must secure a work permit from DOLE before engaging the child.

Sexual Harassment R. A. NO. 7877  AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE

EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND FOR OTHER PURPOSES.

SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. - Work, education or  training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other  person who, having authority, influence or moral ascendancy  over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor  from the other, regardless of whether the demand, request or  requirement for submission is accepted by the object of said Act. 

        (a) In a work-related or employment environment, sexual  harassment is committed when: 

      (1) The sexual favor is made as a condition in the hiring or  in the employment, re-employment or continued employment  of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges;  or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way  would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;         (2) The above acts would impair the employee's rights or  privileges under existing labor laws; or         (3) The above acts would result in an intimidating, hostile,  or offensive environment for the employee. 

Sexual Harassment

How to measure if an act constitutes sexual harassment:

Guide:[a] Where did it take place? Either work-

related environment OR education or training environment

[b] Did the actor have moral ascendancy?[c] Medium of exchange: Sexual favor in

return for benefits

Independent Contractor v Labor-Only Contractor

A106 of the Labor Code Standard Test for IC:

1 – Nature of Business (separate, independent and distinct)

2 – Capital investment (has substantial capital or investment in tools, equipments, machinery or work premises)

3 – Control only as to means (Employer does not control and supervise the employees of the IC.)

In Labor- Only Contracts, there’s merger of Employer and Labor-Only Contractor, with Employer as the principal and Labor-Only Contractor as agent of the former, so that redress of grievances is to the Employer.

With Independent Contractors, if IC or subcontractor is unable to pay the Employees their wages, then Employer is jointly and severally liable.

A109 LC – refers to solidary liability to any and all violations of the LC. A109 is broad as compared with A106 which is specific in the payment of wages. Note: In the law on wages, the government is included in the coverage of Employer. Government is also liable by virtue of its private contracting.

EMPLOYEE ClassificationA280 LABOR CODE –

Regular Employees Legal Test: [a] Nature of Work – Employee-centered [b] Nature of Business – Employer-centered [c] Reasonable Connection – Usually Necessary and Desirable Plus, Jurisprudence: This test is viewed as a WHOLE

Other Regular EMPLOYEES Casual employment after 1 year of service whether continuous or broken Probationary employee who is allowed to work even after completion of probi period

(A281) Learner who is allowed or suffered work during first 2 months of learner period, if

training is terminated by employer before end of stipulated period Regular EMPLOYEE is not equal to Permanent EMPLOYEE. (In law, there’s no

such thing as a permanent EMPLOYEE.) Note: An EMPLOYEE may be a regular EMPLOYEE but may also be a project,

seasonal or casual one. The existence of project, seasonal, and casual employees is a recognition that there’s no need for a continuing of the employee’s work.

Test: It is the LAW which determines classification of EMPLOYEE and NOT any agreement between EMPLOYER and EMPLOYEE.

Project EmployeesDefinition: Employee whose employment is fixed on a specific project or undertaking, the

completion or termination of which is determined at the time of engagement of employee.

Law Requirements: [a] LC

1. A280 – Employer must inform employee of the name and duration of the project.

2. Failure of this is fatal to Employer. If Employer fails in this obligation imposed by law, then Employee becomes a regular Employee.

[b] Jurisprudence3. If at the time of engagement the Employee is informed, then no matter how long the

project is, project employment is valid, Employee is project employee.

4. If the project is carefully crafted, Employee cannot be converted into regular employee. But if there’s continuing need for the project, then employee is converted to regular employee.

5. The project and principal business must be separate and distinct from each other. (Associated Labor Union case)

6. There must be no attempt to deny security of tenure to employee.

Seasonal/ Casual/ Fixed Term Employees Seasonal EmployeesWork to be performed is seasonal in nature, employment is only for duration of

the season. No continuing need for the worker.

Manila Hotel v CIR – The employment of seasonal workers, at the end of the season, does not cease. They are temporarily laid off during the off season and are not separated from service in said period but are deemed only suspended. They are considered on leave until re-employed. The right to be hired is based on 1 season.

Casual Employees They are not defined but are classified by elimination: neither regular, project

or seasonal employees.

Conversion Formula (when casual employees automatically become regular):1. one year of service whether continuous or broken

2. regular by automatic operation of law. But this is qualified: (a) only with respected to the job for which the employee is hired, and (b) only while the job is existing

Seasonal/ Casual/ Fixed TermEmployees

Fixed Term Employment

Brent v Zamora case [a] Fixed term employment is valid. Nothing in the law

prohibits fixed term employment, provided, that it does not intend to circumvent the law on tenurial security.

[b] 2 Requisites for validity: 1. Entered knowingly and voluntarily by the parties

without any force duress or improper pressure 2. Employer and Employee dealt with each other on

more or less equal terms with no moral dominance over the other

Probationary Employees ART. 281. Probationary employment. - Probationary

employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

Period – not exceeding 6 months Basis of termination: just cause or failure to qualify

Obligation of Employer to lay down conditions or reasonable standards to qualify for regular employment

Working after probationary period = regular Employee Note: Apprentice NOT equal to probationary Employee

Probationary Employees

Exceptions: When the employer and the employee agree on

a shorter or longer period; When the nature of work to be performed by the

employee requires a longer period; When a longer period is required and

established by company policy.

Phil Federation of Credit Coop v NLRC [1998][Contract stated that she was hired on a contractual basis, on probationary status

for 6 months, which was subject to renewal. Renewed for one year then she was terminated.]

Art. 281- An employee who is allowed to work after a probationary period shall be considered a regular employee. Probationary employee is one who is on trial during which the employer determines whether he is qualified for permanent employment.

Regardless of the designation the employer may have conferred upon her employment status, since she had completed the probationary period and she was allowed to work thereafter, she then acquired regular status.

Pangilinan v Gen Milling Corp [2004][Employed as emergency workers (chicken dressers, packers and helpers

in the plant)] They were employed with a fixed period, and as such, were not regular employees. Art. 280 does not proscribe or prohibit an employment contract with a fixed period. It does not necessarily follow that where the duties of the employee consists of activities usually necessary or desirable in the usual business of the employer, the parties are forbidden from agreeing on a period of time for the performance of such activities. There is nothing essentially contradictory between a definite period of employment and the nature of the employee’s duties.

Jurisprudence

Jurisprudence Buiser v Leogardo [1984][Sales rep of Gen Telephone Directory Co.; probationary status for

18 months] Generally, the probationary period of employment is limited to 6

months. The exception to this general rule is when the parties to an employment contract may agree otherwise, such as when the same is established by company policy or when the same is required by the nature of the work to be performed by the employee. There is recognition of the exercise of managerial prerogatives in requiring a longer period, esp. where the employee must learn a particular kind of work such as selling, or when the job requires certain qualifications, skills, experience or training.

Policy Instruction #11 of Minister of Labor: “Under the LC, six months is the general probationary period, but the probationary period is actually the period needed to determine fitness for the job. This period, for lack of a better measurement is deemed to be the period needed to learn the job.”

Jurisprudence Bernardo v NLRC [1999][Deaf-mutes hired by Far East Bank as money

sorters and counters under “employment contract for handicapped workers”]

Contract signed by the petitioners is akin to a probationary employment, during which the bank determined the employee’s fitness for the job. When the bank renewed the contract after the lapse of the 6-month probationary period, the employee thereby became regular. Their disability did not render them unqualified for the tasks assigned to them. No employer is allowed to determine indefinitely the fitness of its employees.

Jurisprudence Mariwasa Manufacturing v Leogardo [1989]

[General utility worker; unsatisfactory work during probie period of 6mos. but his probie period was extended for another 3 mos.]

Extension was ex gratia, an act of liberality on the part of his employer. By voluntarily agreeing to an extension of the probationary period, he in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension. No public policy protecting the employee and the security of his tenure is served by proscribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee’s prospects of demonstrating his fitness for regularization.

On Absorbed Employees Cebu Stevedoring Co v Regional Director [1988]

[Former employees of Cebu Customs Arrastre Services because it was abolished; they were then absorbed by CSCI with the same positions they previously held; 6mos later were dismissed]

They could not be considered probationary employees because they were already well-trained in their respective functions. While they were still with the CCAS, they were already clerks with 10 years of service, on the average. They were therefore not novices in their jobs, but experienced workers.

Jurisprudence

NO Double Probation

A Prime Security Services v NLRC [2000]

[Security guard (was transferred) for a year to the sister company.]

There is no basis for subjecting an employee to a new probationary or temporary employment where he had already become a regular employee when he was absorbed by a sister company. He became a regular employee upon completion of his 6-month probationary status.

Special Class of Workers

ApprenticeLearnersHandicapped

*On learners and handicapped workers – the intent of the law is that, part of national interest and development is to have a trained manpower.

Handicapped Workers Law: RA 7277 Magna Carta for Disabled Persons These are workers whose earning capacities are impaired, by reason of age, physical or mental infirmity. But these infirmities are not deterrent to gain an employment or livelihood.

Handicapped workers will be treated like a regular worker. Disabled persons have the same rights as other persons to take their proper place in society.

If qualified, handicapped workers may be considered apprentices or for apprenticeship

Bernardo v NLRCA qualified disabled EE should be given the same terms and conditions of a qualified able-bodied person. This means that a handicapped EE, if his infirmity does not impair his earning capacity, should be considered and treated like a normal EE. Effect: he should be paid full compensation and not 75%)

Learners Law: RA 7796

Sec.4(n) – Learners refer to persons hired as trainees in semi-skilled and other industrial occupation w/c are non-apprenticeable. Learnership programs must be approved by the Authority.

Learners may be hired when: 1 – No experience workers are available 2 – It is necessary to prevent curtailment of employment

opportunities 3 – Employment does NOT create unfair competition in terms of

labor costs or impair lower working standards Period of Learnership: Not exceeding 3 mos.

Wages: Shall begin at not less than 75% of applicable minimum wage

Deemed Regular: Upon completion of learnership, and when after working for 2 mos, terminated by ER w/o fault of learner, before end of stipulated period.

ApprenticesLaw: RA 7796 Technical Education and Skills Development Act of 1994 Sec4(j)

Apprentices – these refer to persons who undergo training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer during a period established assured by an apprenticeable occupation.

2 concepts: 1) highly skilled, and 2) only ER can appoint apprentice

Apprenticeable occupation is an occupation officially endorsed by a tripartite body and approved by Authority. – Sec.4(m) RA 7796

Period of Apprenticeship: Not exceeding 6 mos. But may be extended by agreement by the parties

Wages: Shall start at not less than 75% of applicable minimum wage

DOLE factor: Only the DOLE can: 1) determine if trade or skill is apprenticeable, 2) determine if enterprise is highly skilled, and 3) approve the program of apprenticeship