SPECIAL TYPES OF WORKERS apprentice, learner & handicapped workers

Define Apprenticeship

means practical training on the job supplemented by related theoretical instruction. (Art. 58, LC)

training within employment involving a contract between an apprentice and an enterprise on an apprenticeable occupation (DEPARTMENT ORDER NO. 68-04 )

Who is an Apprentice?

He is a worker who is covered by a written apprenticeship agreement with an individual (Art. 58, LC)

a person undergoing training for an approved apprenticeable occupation during an established period and covered by an apprenticeship agreement. (DEPARTMENT ORDER NO. 68-04 )

What is apprenticeable occupation and Apprenticeship agreement?

An apprenticeable occupation means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction.(Art. 58, LC)

an occupation officially approved for apprenticeship by TESDA. (DEPARTMENT ORDER NO. 68-04 )

Apprenticeship agreement is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training. (Art. 58, LC)

a contract wherein a prospective enterprise binds himself to train the apprentice who, in turn, accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party. (DEPARTMENT ORDER NO. 68-04 )

What are the qualifications of an Apprentice?

(a) Be at least fourteen (14) years of age;(b) Possess vocational aptitude and

capacity for appropriate tests; and(c) Possess the ability to comprehend and

follow oral and written instructions.Trade and industry associations may

recommend to the Secretary of Labor appropriate educational requirements for different occupations.( Sec. 59, LC)

REQUISITES for EMPLOYMENT OF APPRENTICES

The employer should be engaged in a business that is considered highly technical industry

The job which the apprentice will work on should be an apprenticeable occupation( Art. 60, LC)

Contents of apprenticeship agreements (Art. 61)

Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of Labor and Employment. The Department shall develop standard model programs of apprenticeship. The period of apprenticeship shall not exceed six months.

Needs DOLE’s prior approval

Nitto Enterprises vs. NLRC and R.CapiliGrno. 114337, September 29, 1995

The apprenticeship agreement between petitioner and private respondent was executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/molder but it was filed only on June 7, 1990. DOLE’s approval of the agreement came later.

The court ruled that petitoner did not comply with the requirements of the law. It is mandated that apprenticeship agreement entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment. Thus, the apprenticeship agreement has no force and effect; and Capili is considered to be a regular employee of the company

Apprenticeship Period D.O.L.E. CIRCULAR No. 2 Series of 2006

The apprenticeship shall be for a period of more than three months but not over six months. However, the employer has the option to employ the apprentice even before the completion of the apprenticeship period

ENTITLEMENT OF THE APPRENTICES

Apprentices shall be entitled to receive a wage not less than 75 percent of the prevailing minimum wage and benefits such as social security and health benefits and overtime pay. An apprentice can work overtime provided there are no regular workers to do the job and the time spent on overtime work is duly credited to his training hours. (DEPARTMENT ORDER NO. 68-04 )

Every apprenticeship agreement shall be signed by the employer or his agent, or by an authorized representative of any of the recognized organizations, associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime.

Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the apprentice.

VENUES OF APPRENTICE PROGRAM (ART. 63)

Sponsoring firm’s or employer’s premises;

Training centers of the DOLE; or Public training institutions or a

combination of both

SPONSORS OF THE PROGRAM(ART. 64)

Any of the apprenticeship schemes recognized herein may be undertaken or sponsored by a single employer or firm or by a group or association thereof or by a civic organization. Actual training of apprentices may be undertaken:

(a) In the premises of the sponsoring employer in the case of individual apprenticeship programs;

(b) In the premises of one or several designated firms in the case of programs sponsored by a group or association of employers or by a civic organization; or

(c) In a Department of Labor and Employment training center or other public training institution

COVERAGE OF THE PROGRAM

1. Any enterprise duly registered with the appropriate government authorities with ten (10) or more regular workers is qualified to join the program. The number of apprentices for each participating enterprise shall not be more than 20 percent of its total regular workforce.

2. Any unemployed person 15 years old and above may apply for apprenticeship with any participating enterprise. (DEPARTMENT ORDER NO. 68-04 )

PROCEDURES in CASE of VIOLATION( Art65-66)

Investigation- upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment.

Appeal- the Secretary of Labor and Employment has appellate jurisdiction over decisions for violation of such apprenticeship contract

Doctrine of exhaustion of administrative remedies

APTITUDE TESTING OF APPLICANTS

Employers or entities with duly recognized apprenticeship programs shall have primary responsibility for providing appropriate aptitude tests in the selection of apprentices. If they do not have adequate facilities for the purpose, the Department of Labor and Employment shall perform the service free of charge( Art. 68)

ORGANIZATION OF APPRENTICESHIP PROGRAM( ART. 70)

GR: Apprenticeship is a voluntary undertaking EXCEPTIONS: When there is a critical shortage of a trained

manpower in certain trades, occupations, jobs or employment levels where national security or particular requirements of economic development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory training of apprentices ; and

Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs.

INCENTIVES TO PARTICIPATING ENTERPRISES (DEPARTMENT ORDER NO. 68-04)

1. Payment of 75% of the prevailing minimum wage to apprentices;

2. an additional deduction from taxable income of ½ of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, however, that such deduction shall not exceed 10% of direct labor wage; and that the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. (As provided for under Book II, Title II, Chapter I, Article 71 of the Labor Code)

APPRENTICES without COMPENSATION

If training on the job is required

Who is a learner?

a person hired as a trainee in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months (Art. 73, LC)

When can learners be hired?(Art. 74, LC)

Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards.

What are the contents of Learners Agreement?( Art 75, LC)

(a) The names and addresses of the learners; (b) The duration of the learnership period, which shall not

exceed three (3) months; (c) The wages or salary rates of the learners which shall

begin at not less than seventy-five percent (75%) of the applicable minimum wage; and (d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners.

The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative.

Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. ( Art 76, LC)

HANDICAPPED WORKERS

are those whose earning capacity is impaired by age or physical or mental deficiency or injury. (Art. 78)

They may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.( Art. 79, LC)

They may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired. (Art. 81)

Bernardo vs NLRC G.R. No. 122917. July 12, 1999

The court ruled that even handicapped persons, employed by a bank to

accommodate the request of the social welfare secretary may become regular

employees.

What are the contents of Employment Agreement?(Art. 80, LC)

a. The names and addresses of the handicapped workers to be employed;

b. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; c. The duration of employment period; and

d. The work to be performed by handicapped workers.

subject to inspection by the Secretary of Labor or his duly authorized representative.

APPRENTICE LEARNERS HANDICAPPED WORKERS

QUALIFICATIONS 1. Must be fifteen (15) years old or above.

2. Be physically fit for the occupation in which he desires to be trained. 3. Possess vocational

aptitude and capacity for appropriate tests.

4. With the ability to comprehend and follow oral and written

instructions

1. May be employed when no experienced workers are available.

2. When the employment of learners is necessary to prevent curtailment of employment opportunities.

3. When the employment of learners does not create unfair competition in terms of labor costs or impair or lower working standards.

1. May be employed when their employment is necessary to prevent curtailment of employment opportunities.

2. When it does not create unfair competition in labor costs or impair or lower working standards.

NATURE trains highly-skilled job. trains in semi-skilled job or in industrial occupations that

requires training

Contractual type of employment

QUALIFIED EMPLOYERS Employers in the highly technical industries and only in apprenticeable occupation approved by the minister of Labor and Employment.

APPRENTICE LEARNERS HANDICAPPED WORKERS

APPROVAL OF DOLE It needs prior approval of DOLE through the TESDA. Absence of

the approval considers the hired apprentice as an employee

Do not need prior approval by DOLE but subject to DOLE’s

inspection

INCENTIVES OF EMPLOYER 1. 75 % payment of the minimum wage to apprentices.

2. deduction from taxable income of ½ of the value of labor training expenses. 3.Technical and other assistance from DOLE and other government agencies.

4. Employers are assured of regular employees after six (6) months of apprenticeship.

1. Entitled to an additional deduction from their gross income of 25% of the total amount paid to disabled. 2. Deduction from their taxable income of 50% of the direct costs of the improvements or modifications.

APPRENTICE LEARNERS HANDICAPPED WORKERS

DURATION more than three months not over than six (6) months

less than three (3) months No fixed duration as to hiring so that the employer may fix the

duration

WAGE RATES Gen. Rule- employer must pay at least 75% of the minimum wage. Exceptions: 1. Training on the job is required by the school or training program curriculum; or 2. It is a requisite for graduation or board examination.

Must be paid not less than 75% of the minimum wage if the agreement is silent on the wage rate or if employed in piece-rate jobs or incentive-rate jobs during the training period, must be paid in full for the work done.

Payment shall not be less than 75% of the minimum wage.

HOURS OF WORK/OVERTIME Hours of work shall not exceed the minimum number of hours of work prescribed by law. Can work overtime provided there are no regular workers to do the job, is paid overtime pay accordingly and the time spent on overtime work is duly credited to his training hours.

ENFORCEMENT OF AGREEMENT No person shall institute any action for the enforcement of any apprenticeship agreement or for damages for breach thereof, unless he has exhausted all available administrative remedies. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements.

REPUBLIC ACT NO. 7796

Commonly known as:

Technical Education Skills Development ACT of 1994

Declaration of Policy(Sec. 2)

provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities

encourage active participation of various concerned sectors, particularly private enterprises, being direct participants in and immediate beneficiaries of a trained and skilled workforce, in providing technical education and skills development opportunities

What is skills development and Technical Education?

Skills Development shall mean the process through which learners and workers are systematically provided with learning opportunities to acquire or upgrade, or both, their ability, knowledge and behavior pattern required as qualifications for a job or range of jobs in a given occupational area;

Technical Education shall refer to the education process designed at post-secondary and lower tertiary levels, officially recognized as non-degree programs aimed at preparing technicians, paraprofessionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training( Sec. 4b-c)

What is Apprentice, Apprentice Agreement and Apprenticeable Occupation?

Apprenticeship training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation

Apprenticeship Agreement is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party;

Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeable by the Authority (Sec. 4g, l, m)

Who is an apprentice? How about the learners?

Apprentice is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement;( Sec. 4 k)

Learners refer to persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable.( Sec. 4 n)

COMPOSITION OF THE AUTHORITY AND BOARD

TESDA Board and TESDA Secretariat( Sec. 6) TESDA BOARD: Secretary of Labor and Employment - Chairperson Secretary of Education, culture and Sports-Co-Chairperson Secretary of Trade and Industry -Co-Chairperson Secretary of Interior and Local Government -Member Director General of the TESDA Secretariat –Member Private Sectors: 2 representatives from the

employer/industry organization, one is a woman; 3 representatives from labor sector, one is a woman and two representatives of the national associations of private technical-vocational education and training institutions, one of whom shall be a woman( Sec. 7)

Powers and Functions of the Board

primarily be responsible for formulating, continuing, coordinated and fully integrated technical education and skills development policies, plans and programs

Board, shall have the following powers: 1. promulgate, after due consultation with industry groups, trade

associations, employers, workers, policies, plans, programs and guidelines as may be necessary for the effective implementation of this Act;

2. organize and constitute various standing committees, subsidiary groups, or technical working groups for efficient integration, coordination and monitoring technical education and skills development programs at the national, regional, and local levels;

3. enter into, make, execute, perform and carry-out domestic and foreign contracts subject to existing laws, rules and regulations among others (Sec.8)

Authority shall:

establish Technical Education and Skills Development Committees at the regional and local levels to coordinate and monitor the delivery of all skills development activities by the public and private sectors (Sec. 19)

strengthen the network of national, regional and local skills training centers for the purpose of promoting skills development( Sec. 20)

formulate a comprehensive development plan for middle-level manpower based on a national employment plan or policies for the optimum allocation, development and utilization of skilled workers for employment entrepreneurship and technology development for economic and social growth (Sec. 21)

Authority shall:

assist any employer or organization engaged in skills training schemes designed to attain its objectives under rules and regulations which the Authority shall establish for this purpose (Sec. 24)

develop and administer appropriate incentive schemes to encourage government and private industries and institutions to provide high-quality technical education and skills development opportunities.( Sec. 27)

design and implement an effective and efficient delivery system for quality technical education and skills development opportunities particularly in disadvantaged sectors, with new tools of wealth creation and with the capability to take on higher value-added gainful activities and to share equitably in productivity gains ( Sec. 28)

Republic Act No. 7277

Magna Carta for Disabled Persons grants the rights and privileges for disabled persons guided with five principles:

Disabled persons are part of the Philippine society

Disabled persons have the same rights as other people to take their proper place in society

The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capability to attain a more meaningful, productive and satisfying life.

The State also recognizes the role of the private sector in promoting the welfare of disabled persons and shall encourage partnership in programs that address their needs and concerns.

To facilitate integration of disabled persons into the mainstream of society, the State shall advocate for and encourage respect for disabled persons( Sec. 2)

Who are Disabled Persons?

They are those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being ( Sec. 4a)

What is disability and handicap?

Disability – shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment;

Handicap – refers to a disadvantage for a given individual resulting from an impairment or a disability, that limits or prevents the functions or activity, that is considered normal given the age and sex of the individual( Sec. 4c-d)

Who is a qualified individual with disability?

He is an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to the employer’s judgement as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job( Sec. 4l)

RIGHTS and PRIVILEGES of DISABLED PERSONS

EMPLOYMENTa. Equal Opportunity for Employment( Sec.

5)b. Sheltered Employment( Sec.6)c. Apprenticeship (Sec. 7)d. Vocational Rehabilitation ( Sec. 9)e. Vocational Guidance and Counseling

( Sec. 10)

INCENTIVES FOR EMPLOYER(Sec. 8)

adequate incentives shall be provided to private entities which employ disabled persons.

(b). Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons:

Provided that 1. such entities present proof as certified by the Department of Labor and Employment that disabled person are under their employ an said disabled employee is accredited with the DOLE and the DOH as to his disability, skills and qualifications.

(c). Private entities that improved or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344.

PROHIBITION ON DISCRIMINATION AGAINST DISABLED PERSONS

No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. ( Sec. 32)

What are discriminating acts?

(a). Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities;

(b). Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job related for the position on question and are consistent with business necessity;

(c). Utilizing standards, criteria, or methods of administration that:

1). have the effect of discrimination on the basis of disability; or 2). perpetuate the discrimination of others who are subject to common administrative control;

(d). Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a nondisabled person performing the same work is entitled;

(e). Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter’s disability;

(f). Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability;

(g). Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involve to the prejudice of the business entities; Provided, however, That the employer first sought provide reasonable accommodations for disabled persons;

(h). Failing to select or administer in the effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such test purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and

(i). Excluding disabled persons from membership in labor unions or similar organization.

Can a disabled applicant be subjected to medical examination? Yes on the following occasions: (a). all entering employees are subjected to such an

examination regardless of disability; (b). information obtained during the medical condition or

history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, Provided, however, That: 1). supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations; 2). first aid and safety personnel my be informed, when appropriate, if the disability might require emergency treatment; 3). government officials investigating compliance with this Act shall be provided relevant information on request; and 4). the results of such examination are used only accordance with this Act( Sec.33, Title 3, RA 7277)