LABOR STANDARDS REVIEWER 1

LABOR STANDARDS

I. LABOR STANDARDS

What is labor standards? Giving what is due to the worker Minimum terms and conditions of employment that an employer must

provide to the workers Labor standards are fluid. What may be true now may not be true in the

future LABOR STANDARDS are those labor statutes that prescribe standards

relating to terms and conditions of employment for compliance by employers

o like the laws on hours of work, weekly rest periods, holiday pay, wages, and laws dealing with women, minors, house-helpers, and industrial home-workers.

Purpose of Labor standards (APIR)1. Alleviate the plight of workers2. Protection to workers against injustices3. Impose sanctions on those who violate4. Redress for violation of basic employee rights

Coverage of labor laws on standards Wages Working conditions and rest periods

o Hours of worko Weekly rest periodso Holiday, service incentive leaves and service chargeo 13th month pay

Working conditions for special groups of employeeso Womeno Minorso Househelperso Homeworkerso Apprentices

o Learnerso Handicapped

Termination of employmento Substantive due processo Procedural due process

o Compliance with the two notice requirement1. Notice of the violation2. Notice of termination

When can labor laws on standards apply? Labor laws can only apply when there is an employer-employee relationship

When is there EMPLOYER-EMPLOYEE Relationship? Jeepney driver and owners

o The boundary system is only the mode of compensationo The owners of the jeepney still exercise control over the drivers in

determining the route There is NO employer-employee relationship in:

o Company and agent of company paid in commission – the company does not have control over the agent

o Resident physician and the training hospital – residency is simply a continuation of their medical course. It is a pursuit of further education on a specific discipline.

How to determine the existence of the employer-employee relationship:

The 4-Fold Test: When there is –1. Selection and engagement of employees2. Payment of wages3. Power of dismissal4. Power to control the employees conduct

a. Control of employees conduct is the most crucial and determinative indicator of the existence of the employer-employee relationship

The 2-Tiered Test for EMPLOYER-EMPLOYEE RELATIONSHIP – Economic reality test:

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Find the employee if he is economically dependent on the other, then there is employer-employee relationship.

Orosco v. 5th Division of the Court of Appealso Orosco was terminated. His case for illegal dismisal was dismissed.

Court held that he was an independent contractor. Petitioner’s main occupation is not a columnist. She herself

admits that she contributes articles to other publications. Thus she not fully dependent on Philippine Daily Inquirer.

o Orosco was considered as a freelance writer. Economic reality test was applied.

Sonsa v. NLRC

Contract of employment Not an ordinary contract. It is also endowed with public interest. Chavez v. NLRC

o Can a contract between an employer and employee be determinative of an employer-employee relationship.

o The contract stated that Chavez was not an employee.o Other provisions of the contract showed that it was a contract of

employment between an employer and employee.o Court held that existence of an employer-employee

relationship cannot be repudiated in an employment contract when the facts clearly showed otherwise.

o Employment status is defined by law and not what the parties say it should be.

The exclusivity provision Generally invalid, EXCEPT when:

o Position of the employee is such that it would be presumed that if he transfers to a competing employer, what he knows can be used by the competitor against the previous employer. (trade secrets)

Consulta v. Court of Appealso The appointment of the complainant provided that she must

represent the company on an exclusive basis and must not directly or indirectly engage with other companies that compete against her employer.

o Restriction was considered reasonable because it only limited transactions with other companies that competed with that of her employer.

o What is prohibited is an encompassing restriction. In another case, although the restriction was broad, it was

held to be reasonable because it was only for a limited time and place. (Del Castillo v. Richmond)

Retainership agreement – a work for hire contract. It falls between a one-time contract and full-time employment. Its distinguishing feature is that the employer pays in advance for work to be specified later. Additional contracts regarding the performance of this work may also apply.

Coca-Cola Bottlers, Phil. v. Climacoo Whether employer-employee relationship exists under a

retainership agreement.o Court held that the company lacked the power of control over the

performance of the respondent by his duties. Dr. Climaco was declared not an employee for being udner a retainership agreement.

o Dr. Climaco was not told how to conduct his physical examination. What is important is that the control refers to how the work should be done.

General rule when it comes to resident physicians: there is employee-employer relationship. EXCEPT WHEN:

When there is a training agreement.The training program is duly accredited or approved by the government agency

LABOR-ONLY CONTRACTING JOB-ONLY CONTRACTINGWhen there is no sufficient capital and equipment. Can only supply labor

The person is in an independent business BUT the capital and facilities belongs to the principal

No relationship between contractor and employee. The relationship is between the employee and the principal employer

Carries on an independent business and undertakes work on his own account

Example: agencies who hire people and

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assign them to companies*An independent contractor has all the facilities. The person transacting with the independent contractor only has control over the result of the work of the independent contractor.

II. WAGES

A. Wages Wages are defined as:

1. Renumeration or earnings2. expressed in terms of money3. fixed or acscertained on a:

a. timeb. taskc. piece ord. commission basis

4. payable by an employer to an employee5. under a written or unwritten contract6. for work done or to be done.

What are considered to be part of wages? All benefits of the employee under the CBA

o Severance payo Unpaid salaries for work done

The following determines the amount of wages:1. Collective bargaining agreement – provided that what the wage prescribed is

more than what is under the law. 2. employment contract – provided that what the wage prescribed is more than

what is under the law. 3. Law

Note: Collective bargaining agreement determines the rights of the employees. When there is a CBA, this becomes the law between the employer and employee provided that it does not violate law or public morals

Facilities articles or services for the benefit of the employee or his family Items of expense necessary for the laborer’s and his family’s existence

To allow deduction in the value of facilities from the employer’s wagesa. proof that such facilities are customarily furnished by the tradeb. provision of deductible facilities is voluntarily accepted in writing by the

employeec. facilities are charged at fair and reasonable value

Mere availment is not sufficient to allow deductions from employee’s wages.

Food or snacks: supplements not facilities

Supplements constitute extra remuneration or special privileges or benefits given to or

received by the laborers over and above their ordinary earnings or wages. Independent of the wage and not deductible For the benefit of the employer

What an employee has worked for, his employer must pay.

WAGES SALARIESpaid to blue collar workers, for skilled or unskilled manual labor paid at stated daily, weekly, monthly or seasonal periods.

paid to white collar workers. denotes a higher grade of employment, a superior grade of services and a position of office.

NOT subject to execution or attachment except for debts incurred for food, shelther, clothing and, medical attendance (Rosario Gaa v Court of Appeals)

excluded in the computation of basic salary sick, vacation and maternity

leaves nigh differentials regular holiday pay premiums for work done on rest

days and special holidays

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Living wage economically feasible to maintain the minimum standards of living necessary

for the health and efficiency and general well-being of the employees within the framework of the national economic and social development program.

Exclusions from coveragea. persons in the personal service of anotherb. homeworkers engaged in needleworkc. workers employed in cottage industries duly registered in accordance with

law and who perform work in their homesd. workers duly registered cooperatives as recommended by the bureau of

cooperative development and approved by the Secretary of Labore. Farm Tenancy of lease hold

Equal Pay for Equal Work Persons who work with substantially equal qualifications, skill, effort and

responsibility, under similar conditions should be paid similar salaries. If an employer accords employees the same position and rank, the

presumption is that these employees perform equal work. o Presumption: Same position and rank, equal work

B. Minimum Wage Rates Lowest basic wage rate fixed by law that an employer can pay his employees

(statutory minimum wage)

RA 6727 (Wage Rationalization Act) Mandates the fixing of the statutory minimum wages applicable to different

industrial sectors, namely, non-agricultural, agricultural plantation and non- plantation, cottage/handicraft, and retail/service, depending on the number of workers or capitalization or annual gross sales in some sectors

Established the Regional Tripartite Wages and Productivity Boards which has the authority to fix the wage rates

Coverage

Wage increases apply to all private sector workers and employees regardless of their position, designation, or status, and irrespective of the method by which their wages are paid

Exclusions1. Househelpers, family drivers and workers in the personal service of another2. Workers and employees

o In retail service establishments regularly employing not more than 10

o Distressed establishmentso Other firms or employers as determined by the board, when

specifically exempted from compliance for a period fixed by the board.

3. Workers of registered Barangay Micro Business Enterprises with Certificates of Authority issued by the Office of the Municipal or City Treasurer

Minimum wage of workers paid by results is determined through:a. Time and motion studiesb. Consultation with representatives of employers and workers organizations in

a tripartite conference called by the DOLE Secretary

Ability to Pay is Immaterial Serious business losses is not a defense to payment of labor standards

benefits. Employer cannot exempt himself form liability to pay minimum wages because of poor financial condition of the company; the payment of minimum wages is not dependent on the employer’s ability to pay.

Non Diminution

General Rule: Nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of the promulgation of this Code. Benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten.

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Exception: To correct and error, otherwise, if the error is left uncorrected for a reasonable period of time, it ripens into a company policy and employees can demand for it as a matter of right.

Bonuses does not form part of salary. Generally, they are not demandable. However, the following are demandable bonuses:

1. When given with condition2. 13th month salary

a. 14th or more are no longer demandable3. When it forms part of the contract4. When given as company policy for at least 6 months, customary or

voluntary employer practicea. Requisites for voluntary employer practice such that the same

cannot be unilaterally withdrawn anymore: i. Practiced over a long period of time

ii. Consistent and deliberate

Four Elements of Wage distortiona. Existing hierarchy of positions with corresponding salary ratesb. Significant change in the salary rate of a lower pay class with a concomitant

increase in the salary rate of a higher onec. Elimination of the distinction between the two levelsd. Existence of the distortion in the same region of the country

C. Payment of Wages

Art. 102 Forms of payment – An employee may only be paid by legal tender by the employer Art 1705 of the Civil Code – laborer’s wages shall be paid in legal currency.

Promissory notes, vouchers, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee are not allowed.

Legal tender – that currency sufficient under the law to effect payment of a debt or obligation (Sibal, Phil. Legal Encyclopedia, 608)

All notes, coins, currencies issued by the Central Bank are legal tender for all debts, public and private. A check is not legal tender.WHEN PAYMENT OF CHECK OR MONEY

IS ALLOWEDWHEN PAYMENT THROUGH ATM IS

ALLOWED When such manner of payment is

customary on the date of effectivity of this Code

Because of special circumstances in appropriate regulations issued by the Secretary of Labor and Employment

When stipulated in the CBA or where all these conditions are met:o There is a bank or other facility

for encashment within a radius of 1 kilometer from the workplace

o The employer, or any of his agents or representative, does not receive any pecuniary benefit, directly or indirectly, from the arrangement.

o The employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours

o The payment by is with the written consent of the employees concerned if there is no collective agreement authorizing the payment of wages by bank checks.

With the written consent of the employee

Employees are given reasonable time to withdraw their wages from the bank facility, and if done during working hours, shall be considered as compensable hours worked

System shall allow the employee to receive their wage within the period and in the amount prescribed under the Labor Code

There is a bank or ATM facility within a radius of 1 km

Employer shall issue a evidencing payment of wages, benefits and deductions for a particular period upon request of the concerned employee

ATM system of payment will not result in diminution of benefits and privileges of the employee and neither the latter incurs additional expenses in the process

Employer shall assume full responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement

Penalty for Violation – Art 288 of the RPC imposes a penalty of arresto mayor or a fine ranging from 200-500 pesos or both to any person who shall pay the wages due a

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laborer employed by him by means of tokens or objects other than legal currency of the Philippines.

Art. 103 Time of payment – wages shall be paid at least once every two weeks or twice a month at intervals not exceeding sixteen days.

Exceptions:

1. Force majeure or circumstances beyond the employer’s control provided that he pays the wages immediately after

2. Wages of employees engaged to perform tasks that cannot be completed in two weeks. In the absence of a CBA or arbitration award:

a. Payments are made at intervals not exceeding sixteen days , in proportion to the amount of work completed

b. Final settlement shall be made upon completion of work

Art. 104 Place of Payment – Payment of wages shall be made at or near the place of undertaking except as otherwise provided by such regulations Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages

Rule VIII, Section 4

a. As a general rule, the place of payment shall be at or near the place of undertaking unless:

1. Reason of the deterioration of peace and order conditions or of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment impossible

2. Employer provides free transportation back and forth3. Time spent by the employees in collecting wages shall be considered

compensable hours

b. No employer shall pay his employees in any bar, night or day club, drinking establishment, massage clinic, dance hall or other similar places or in places where games are played with stakes of money or thing reperesenting money except in the case of persons employed in said places.

Art. 105 Direct Payment of Wages Wages shall be paid directly to the workers to who they are due

Exceptions:

a. Force Majeure – during which case the wages may be paid to another person under a written authority given by the worker.

b. When the worker has died – payment to the heirs without need for intestate proceedings. Claimants shall execute an affidavit attesting to their relationship to the deceasese.

c. In case of conflicting claims over the uncollected wages of deceased employee:” It should be borne in mind that in cases where the second wife had in good faith contracted marriage with the decedent notwithstanding the existence of his marriage with the first wife, the court has generally sought and applied a just and equitable solution and division of the decedent’s estate among the two innocent parties”.

Payment through Contractor

The leader who a contracted a stevedoring work may receive payment of wages for the workers. The wages was undertaken by not in their individual capacities but as a group through their leader-contractor.

Contractor or subcontractor

Art106 – When an employer enters into a contract for the performance of its work, the employees of the contractor and of the latter’s subcontractor shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers.

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There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.

Purpose of the law – to protect the workers from some unscrupulous employers. Thus, the law creates an employer-employee relationship between the employer and the contractor’s workers.

Directly related activities and activities necessary or desirable in the usual business or trade

Directly related activities – those which are directly related to the principal business of the employer – covered by Art 106

Activities necessary or desirable in the usual business or trade – covered by Article 280

Legal effect of a finding that the contractor is merely a “labor only” contractor – employer is responsible to the employee of the the labor only contractor as though they were directly employed by him

In house agency – a contractor or subcontractor engaged in the supply of labor which is: a.)owned and controlled by the principal: and b.) operates solely for the principal owning managing, or controlling it. This is contrary to law public policy.

Job contracting – allowed by law if:a. Contractor carries out an independent business and undertakes the contract

work on his own account, under his own responsibility, according to his own manner and method, from the contorl and direction of his employer or principal in all matters connected with the performance of work except as to results;

b. The contract has substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of his business.

There is no employer-employee relationship between contractors, employees and the principal. However, when a contractor fails to pay the wages of his employees, he becomes obliged to do so as though he were the employer, but only for this purpose.

Indirect employer – one who contracts with an independent contractor for the performance of any work, task, job or project nor directly related to the employer’s business.

Posting of bond – An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same.

Solidary liability – Other provisions of the law notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.

Worker preference in case of bankruptcy – In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989).

Attorney’s fees – (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered; (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered.

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D. Prohibitions Regarding Wages

o No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages;

o Oblige any of his employees to patronize any store or avail of the services offered by any person.

o Wage Deductions: No employer on his behalf or on behalf of any person make any deductions from the wages of his employees.

Note: Article 1706 allows deduction for a debt due the employer. Which law shall prevail?

o Deduction from employee’s salary as the company’s share for job procurement, even if based on a contract in writing; [Commando Security Agency vs. NLRC, 211 SCRA 645 (1992)]. The contract is void ab initio being contrary to law and public policy. [Mercury Drug Co., Inc., vs. Dayao, 117 SCRA 99, 166 (1982)];

o An employee’s obligations arising from non-payment of stock subscription to the corporation cannot be deducted from the wages of the employee. [Apodaca vs. NLRC, 172 SCRA 442 (1989)].

o Deductions to ensure employment – deductions in consideration of employment or retention in employment.

o Retaliatory measures – refusal to pay, or to reduce wages and benefits, discharge or in any manner discriminate against an employee who has filed any complaint or instituted any proceeding under this title or has testified or is about to testify in such proceedings. (P. D. 850).

Exceptions:1. To recompense employer for payment of premiums in case employee is insured

by the employer with his consent;

2. For union dues where the right of the worker or his union to check off is recognized by the employer and authorized by the individual worker;

3. In other cases where the deduction is authorized by law or regulation issued by the Secretary of Labor, ex.: taxes (withholding taxes); SSS contributions; Philhealth

contributions; agency fees; Abad -deduction from employees’ wages of debt due the employer. Art. 1706, Civil Code, vs. Art. 114, Labor Code.

4. Illegal Deposits – [Five J Taxi vs. NLRC, 235 SCRA 556 (1994)] It was held that the P15 daily deposit made by taxi drivers to defray shortage in their “boundary” is covered by the general prohibition under Art. 114 of the Labor Code. not an exception

5. Where the deductions are for the payment to a third person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly from the transaction;

6. Deductions to answer for loss of damage, under these conditions:

a) Employer is engaged in a trade, occupation or business where the practice is recognized, to answer for loss or damage to tools, materials, or equipment supplied by the employer to the employee;

b) The employee is shown to be responsible for the loss or damage;

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

d) The deduction does not exceed 20% of the employee’s wages in a week.

No Work-No Pay Principleo The age-old principle governing the relations between labor and capital, that

is, a fair day’s work for a fair days’ labor remains as the basis in determining employees’ wages. (Aklan Electric Coop., Inc., vs. NLRC, 323 SCRA 258).If there is no work performed by the employee, there can be no wage paid unless the worker is able and willing to work but was illegally dismissed or locked-out or illegally prevented from working.

o The doctrine of "no-work-no-pay" is a fundamental axiom in industrial relations. The philosophy is very simple. When a person is employed, it is expected that the work assigned will be carried out. When this work is not done, the employee is not eligible for payment of any salary. Even when

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a general strike or countrywide ban disrupts public transport systems, and consequently employees are unable to reach their workplaces, the same principle prevails. Even die-hard trade union leaders respect this principle of equity and natural justice. "No work, no pay" lays a strong foundation to industrial peace and harmony in the long run.[5]

A person can be marked dies-non, if:

1. Absent without proper permission.

2. When on duty left without proper permission.

3. While in office but refused to perform duties.

In cases of such wilful and unauthorised absence from work, the leave sanctioning authority may decide and order that the days on which the work is not performed be treated as dies non on the principle of no work no pay. This will be without prejudice to any other action that the competent authority might take against the persons resorting to such practises.

Lawyer hired on contingent basis – A lawyer dismissed by the clients because he refused to represent them in an out-of-court settlement has no right to interfere in the implementation of their claims in his efforts to collect attorney’s fees not due him. (Chua vs. NLRC 190 SCRA 558).

The financial capacity and economic status of the clients can be taken into account in fixing the reasonableness of the attorney’s fees. However, where the clients are mere janitors whose fees are so low, the equivalent of 50% is excessive. (Atty. Taganas vs. NLRC, 64 SCAD 226, G. R. No.118746, 7Sept. 1995).

When the issues are so simple, neither novel nor difficult, award of 10% attorney’s fees may be considered excessive. The Court may reduce the same. (D. M. Consunji vs. NLRC, 143 SCR 204).

Attorney’s Fees Deleted – Where the award of moral and exemplary damages was eliminated, so to was the award of attorney’s fees. (Audion Electric Co., Inc., vs. NLRC, G.R. No. 106648, 17 June 1999).

III. WORKING CONDITIONS AND REST PERIODS

A. Working Hours

Coverage• This shall apply to all employees in all establishments or undertakings, whether operated for profit or not.

Exemptions1. Government employees, including those employed in government-owned

and/or controlled corporations 2. Managerial employees

a. one who can lay down management policies, or who can fire, hire, demote or promote or who can effectively recommend the fore going courses of action.

b. Rationale: such workers are not usually employed for evey hour of work but their compensation is determined considering their special training, experience or knowledge which requires the exercise of discretion and independent judgment, or perform work related to management policies.

c. they are not feasibile to provide a fixed hourly rate of pay or maximum hours of labor.

3. Managerial Staff – vested with powers or perogatives to lay down and execute management policies

a. primary duty consists of the performance of work directly related to management policies of their employer

b. customarily and regularly exercise discretion and independent judgment

c. regularly and directly assist the managerial employeed. they execute work along specialized or technical lines requiring

special training, experience of knowledgee. they execute special tasks and assignmentsf. they do not devote more than 20% of their hours worked in a work-

week activitiesg. A supervisor is deemed a member of the managerial staff because he

oversees the operation of the business of the company and

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performance of the workers, which require discretion and independent judgment.

4. Field Personnela. Since they work away from his employer’s place of business, hence

not subject to personal supervision of employer. Employer has no knowledge of how many hours he works per day.

5. Family members6. Domestic helpers and persons in the personal service of another7. Workers paid by results

a. Because they are paid by fixed amount for work done, regardless of the time spent in accomplishing the work

Hours of Work Normal hours of work shall not exceed 8 hours a day. Health personnel in cities and municipalities with a population of at least 1

million or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day for 5 days a week, exclusive for time of meals.

o If exigencies of their service require that personnel work for 6 days or 48 hrs, they shall be entitled to 30^% of their regular wage for work on the sixth day.

Who are health personnel?o resident physicians, nurses, nutritionists, dietitians, pharmacists,

social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.

Hours worked shall include: all time during which an employee is required to be on duty or to be at a

prescribed workplace; and all time during which an employee is suffered or permitted to work.

o Rest period of short duration during working hours shall be counted as hours worked.

Meal Break It shall be the duty of every employer to give his employees not less than 60

mins time-off for their regular meals. If meal/rest period is less than 20 mins, it is credited as a compensable hours

worked. If work is continuous, mealtime breaks should be counted as working time for

purposes of computing overtime compensation. Meal break of more than one hour is part of hours worked. Employees on call – meal break is part of hours worked.

o When the laborers are required to standby for emergency work or where such meal hour is not one complete rest, it is considered overtime.

o This happens when employees are told to hurry up eating to perform work during emergency work.

When idle time not counted as working time: The idle time that an employee may spend for resting and when he may leave

the spot or place of work is not counted as working time when the work is broken or not continuous.

Even if laborers did not leave the premises, it being enough that he cease to work and rest completely, rest would not be counted as working hours.

Waiting time It is compensable if the employee is subject to the absolute control of the

employer such that the employee is effectively deprived of the time to attend to other personal pursuits.

If waiting is an integral part of his work or he is required by the employer to wait, it shall be considered as working time.

An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.

Work interruption due to brownoutsAccording to Policy Instruction No. 36 of DOLE:

1. Brownouts not exceeding 20 mins shall be treated as compensable working hours

2. Brownouts more than 20 mins may not be treated as working hours IF:a. employees can leave their workplace or go elsewhereb. employees can use their time effectively for their own interest

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c. Here, employers can extend working hours outside the regular schedule without being liable for overtime pay.

Working time aboard a vessel Since seamen are required to stay on board their vessels by the nature of

their duties, the correct criterion for determining whether they are entitled to overtime pay is NOT whether they were on board and cannot leave ship beyond the regular 8 hrs a day BUT whether they actually rendered service in excess of the said 8 hrs.

Commuting time Normally, it is not hours of work. However, it is compensated as working hours if employee is required to

perform substantial work under the control and supervision of the employer.

Travel time Official travel away from the workplace is counted as working hours if:

o within the regular scheduled administrative workweeko outside the hours of the employee’s regularly scheduled

administrative workweek and meets one of the four conditions: involves the performance or work (e.g. driving a loaded

truck) incident to travel that involves performance or work while

traveling (e.g. driving an empty truck back) carried out under arduous and unusual conditions (travel

on rough terrain/ severe weather) results from an uncontrollable event (job-related court

appearance required by court subpoena)

Overtime Work – work performed beyond 8hrs a day Rationale: he puts in more effort and is delayed in going home to his family to

enjoy the comfort, and might miss important prearranged engagement. should be paid additional compensation equivalent to his regular wage plus

at least 25% during holidays or rest day – additional compensation equivalent to his

regular wage plus at least 30%

Undertime on a particular day is not offset by overtime on any other day. General Rule: Overtime pay cannot be waived.

o Any quitclaim that a worker agrees to forego such payment is null and void

Exception:o Built-in overtime pay – Non-payment of overtime pay is valid here

because it was already provided in the written contract with a “built-in” overtime pay and signed by Director of the Bureau of Employment Services and enforced by the employer.

o Adoption of Compressed workweek (CWW) on voluntary basis. Conditions of CWW scheme recognized by DOLE:

undertaken as a result of an express and voluntary agreement of majority of the covered employees.

In firms hazardous to one’s health (use of chemicals or other substances), there must be a certification from an accredited health and safety organization that work beyond 8 hours is tolerable.

The employer shall notify DOLE of the adoption of the scheme.

o Effects of CWW: Work beyond 8 hours is not compensable by overtime

premium unless there is a more favorable practice in the firm.

Reversion to the normal 8 hour workday shall not constitute a diminution of benefits.

Emergency overtime work – every employee required to render overtime work shall be paid additional compensation

When the country is at war or when there is any national or local emergency declared by congress or chief executive

Imminent danger to public safety due to accidents, fire ,flood, typhoon, etc When there is urgent work to be performed on machines, installations, or

equipment to avoid further damage to the employer When work is necessary to prevent loss or damage to perishable goods Where the completion or continuation of the work started before the eighth

hour is necessary to prevent serious obstruction or prejudice to the

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business or operations of the employer. Claim of overtime pay is not justified if without written authority to render

overtime after office hours during Sundays and holidays. Proof of Overtime claim

o Presentation of payrolls, daily time records and similar documentso In cases of OFWs, they should allege overtime pay with particularity.

If n006Ft, the local recruitment agency who deployed the OFWs to the foreign principal could have obtained the records from the principal to refute the claim for overtime pay. The local recruitment agency is solidarily liable with the foreign principal for the overtime pay claims of the complainants.

CBA provision may oblige the workers to work beyond eight hourso Working hours may be changed at the discretion of the company if

the change is necessary for its operations.o If employees assented to this arrangement, they are deemed to have

waived the normal 8-hour schedule.

Night shift/ Night differential – work staring from 10pm to 6am every employee shall be paid of not less than 10% of his regular wage for

each hour of work. Based on public policy, hence it CANNOT BE WAIVED.

B. Weekly Rest Periods

Right to Weekly rest day It is the duty of the employer, whether for profit or not, to provide each

employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal work days.

Employer shall determine and schedule the weekly rest day subject to CBA and the rules and regulations of Sec. of Labor and Employment.

Preference of Employee Employee shall make known his preferred weekly day rest to his employer in

writing at least 7 days before the desired effectivity of the initial rest day. If preferred schedule of rest day based on religious grounds that is in conflict

with the operations, the employer may schedule the weekly rest day of his

choice for at least 2 days in a month.

Schedule of rest day – made known through written notice by the employer posted in the work place one week before it becomes effective

When employer may require work on a rest day: Actual or impending emergencies caused by disasters or calamities to

prevent loss of life, property or imminent danger Urgent work to be performed on machinery to avoid loss that employer

might suffer Abnormal pressure of work due to special circumstances Prevent loss on perishable goods When the nature of work requires continuous operations and stoppage may

result in irreparable injury or loss to the employer Under similar circumstances determined by Sec of Labor and Employment no employee may be compelled against his will to work for more than 8 hrs

Compensation for rest day, Sunday or holiday work When required to work on a rest day

o Additional compensation of at least 30% of his regular wage. An employee is entitled to such for work performed on Sunday only when it is his established rest day.

When the nature of work has no regular workdays and no regular rest days can be scheduled

o Additional compensation of at least 30% of his regular wage performed on Sundays and holidays.

Work performed on special holidayo Additional compensation of at least 30% of his regular wage. If such

holiday work is his scheduled rest day, the worker is entitled to an additional compensation of 50% of his regular wage.

Where CBA agreement or other employment contract stipulates higher premium pay than the prescribed one, employer shall pay such higher rate

Holidays Every employee covered by Holiday pay rule is entitled to his/her daily basic

wage and ECOLA. Hence, employee is entitled to at least 100% of his/her

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LABOR STANDARDS REVIEWER 13

basic wage (plus ECOLA) even if he did not report for work, PROVIDED he is present or is on leave of absence with pay on the work day immediately preceding the holiday.

Right to holiday pay Shall apply to all employees EXCEPT:

o retail service establishments regularly employing less than (10) workers

o government and any of political subdivision, including GOCCo domestic helpers and persons in the personal serviceo managerial employeeso field personnel

What are covered by holidays? The term ‘regular holiday’ shall exclusively refer to: 1. New Year’s Day, 2. Maundy Thursday, 3. Good Friday, 4. the ninth of April, 5. the First of May, 6. the twelfth of June, 7. the last Sunday of August, 8. the thirtieth of November, 9. the twenty-fifth and thirtieth of December. 10. Nationwide special days(special holiday) shall include the first of November

and the last day of December

Compensation for holiday work Any employee permitted to work on any regular holiday, not exceeding 8

hours, shall be paid at least 200% of his regular daily wage. If the holiday work falls on his scheduled rest day, he shall be entitled to an

additional premium pay of at least 30% of his regular holiday rate of 200% based on his regular wage rate.

Overtime pay for holiday work: Additional compensation for the overtime work equivalent to his rate for the

first 8 hours on such holiday work plus at least 30%. When overtime work falls on his scheduled rest day, he is entitled to an

additional compensation for the overtime work equivalent to his regular holiday rest day for the first 8 hours plus at least 30%.it shall consist of 200% of his regular daily wage rate plus 30%.

Divisors Divisor assumes an important role in determining W/N holiday pay is already

included in the monthly paid employee’s salary. General Rule:

o A company with a 6-day working schedule, divisor 314 means that legal holidays are already included in the monthly pay of the employee

o for company with a 5-day working schedule, divisor 261 means that the holiday pay is already included in the monthly salary.

If two regular holidays fall on the same date, the worker should be paid for both days

Art 94 affords workers the enjoyment of paid regular holidays. It is mandatory regardless whether an employee is paid on a monthly or daily basis.

Service incentive leaves Coverage – This shall apply to all employees EXCEPT:

o government and any of its political subdivisionso domestic helpers and in the personal service of anothero managerial employeeso field personnel or any other employees whose performance is

unsupervised by employer including task or contract basis, purely commission basis and those paid in fixed amount

o those who are already enjoying this benefito those enjoying vacation leave with pay if at least five dayso those employed in establishments regularly employing less than 10

employeeso All employees who have rendered at least one year of service shall

be entitled to a yearly service incentive leave of five days with pay. “at least one year” shall mean service for not less than 12

months whether continuous or broken reckoned from the date the employee started working

o it is demandable after 1 yr of service

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LABOR STANDARDS REVIEWER 14

Commutation of unused service incentive leave credit The employee may choose to either use his leave credits or commute it to its

monetary equivalent if not used at the end of the year If he does not use or commute it, he is entitled upon resignation or

separation to its commutation

Other leave benefits: Vacation and Sick Leave

o not mandated by lawo once granted as a practice and policy, they can no longer be

withdrawno it must be demanded in its opportune time. If not, he waives it

Maternity Leaveo RA 7322 – increased maternity benefits o "Maternity Leave Benefit. - A covered female employee who has

paid at least three monthly maternity contributions in the twelve-month period preceding the semester of her childbirth, abortion or miscarriage and who is currently employed shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for sixty (60) days subject to the following conditions:

Employee should inform of her pregnancy and the probable date of her childbirth

Payment shall be advanced by the employer in two equal instalments within 30 days from the filing of the application

In case of caesarean delivery, employee shall be paid the daily maternity benefit for 78 days

Payment of daily maternal benefits is a bar to recovery of sickness benefits for 60 days

Maternity benefit shall only be for the first four deliveries SSS shall immediately reimburse the employer 100% of the

advanced payment to the employee upon proving of such payment

If an employee should give birth or suffer abortion or miscarriage without the contributions remitted to them by the employer to the SSS, without SSS being notified by the employer, the employer shall pay to SSS damages equivalent to the benefits which the employee should have been entitled to, and the SSS shall pay such amount to the employee concerned.

Paternity Leaveo RA 8187o Coverage – shall apply to every male employee in the private sectoro Paternity leave benefits for 7 days with full pay for the first 4

deliveries by his lawful spouseo Conditions for entitlement

he is an employee at the time of the delivery of the child he is cohabiting with his spouse at the time of birth or

miscarriage the wife has given birth or suffer miscarriage

Application for leave shall apply within a reasonable period of time (walangsinabi kung ilan) apply within such period provided by CBA

When availed after delivery by his wife total number of days shall not exceed 7 days for each delivery It shall be full pay consisting of basic salary for the seven days he is not

allowed not to report for work It is not convertible to cash in case it is not availed.

Parental Leave Granted to solo parents Solo Parents Welfare Act – enacted on Nov 7 2000

o To promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development

o Covers the ff: seven working days leave privilege for every year for every

solo parents

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LABOR STANDARDS REVIEWER 15

flexible work schedule prohibition against discrimination of solo parent employee

with respect to the terms and conditions of employment on account of his/her status

o Solo parent Defined to include :any unmarried mother or father who

has preferred to keep and rear her/his children instead of having others care for them or give them up to a welfare institution”

The Handbook on Workers’ Statutory Monetary Benefits of the Bureau of Working Conditions of DOLE (2006) provides guidelines on Parental Leave for Solo parents:

o Coverage – granted to any solo parent who is left with the responsibility of parenthood due to:

Giving birth because of rape, or other crimes against chasitity

Death of spouse Spouse is detained for criminal convicton for at least 1 yr Physical/mental incapacity of spouse certified by a public

medical practitioner Legal separation or de facto separation for 1 yr provided

that he/she is entrusted of the children Declaration of nullity/ annulment of marriage provided that

he/she is entrusted the custody of children Abandonment of spouse for at least 1 yr Unmarried father/mother Any other person who provides solely the parental care and

support to children provided that he/she duly licensed as foster parent by DSWD or by court

Any family member who assumes responsibility of head of the family due to the death, abandonment, disappearance or prolonged absence of parents for 1 yr

o Conditions for entitlement he/she has rendered 1 yr of service whether continuous or

broken he/she notified the employer within a reasonable period of

time he/she presented to the employer a Solo Parent

Identification Card w/c may be obtained from DSWDo If not availed, it shall not be convertible to cash unless specifically

agreed.o If there is a similar benefit under company policy or CBA, it shall be

considered. If it is greater than 7 days, then the greater benefit shall prevail.

o Emergency or contingency leave provided in the company policy or CBA is not credited as parental leave under RA 8972

o If a change of status occurs, such that he is no longer left alone with the sole responsibility of parenthood, his eligibility to the benefit is TERMINATED.

Leave for victims of violence against women and their children (RA 9262)o pertains to any act/s committed by any person against a woman, his

wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship

o Covers private women sector employees who are victims defined in RA9262 (preceeding paragraph)

o Leave benefits shall cover the days that the woman employee has to attend to medical and legal concerns

o To be entitled: To be entitled, victim-employee to present to her employer

a certification from the Punong Barangay or prosecutor or the clerk of court

Benefit Shall be entitled up to ten days with full pay. It shall be extended when the

need arises. if not availed, it cannot be converted into cash.

Military Leave Under PD 183 – any employee with annual gross business of not less than

P250,000 and with a personnel force of at least 20 employees, who is called to undergo refresher training, or mobilization or assembly test, or training in the AFP shall not lose his position due to absence in the fulfilment of military

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LABOR STANDARDS REVIEWER 16

obligation provided that the employer shall be entitled to claim the salaries paid to the employee during such training as a deductible item in its income tax return.

Under Labor Code – The fulfilment by the employee of a military or civic duty shall not terminate employment

In such cases, employer shall reinstate the employee to his former position without loss of seniority rights if he indicates to resume his work not later than 1 month from relief from the military or civic duty

Service charges All service charge collected by establishments shall be distributed at the rate

of 85% equally for all covered employees and 15% for the management. Shares hall be distributed and paid to the employees not less than once every

two weeks or twice a month at intervals not exceeding 16 days If the company stopped collecting service fees, the average share previously

enjoyed for the past 12 months immediately preceding such stoppage shall be integrated into their basic wages.

IV. THIRTEENTH MONTH PAY

A. Purpose Under PD 851 which was enacted on Dec. 16, 1975, it required employers to

pay a 13th month pay, it was issued to protect the level of real wages from inflation.

To alleviate the plight of the workers and to help them cope with the increases in the cost of living.

o It is an additional income based on wage but not part of wage. It is exempted from income tax.

B. Time of payment It is paid not later than dec. 24 of each year.

o But employer may give ½ of the required 13th month pay before the opening of the regular school year and the other half on Dec. 24.

The frequency may be the subject of agreement between the employer and the recognized agent of the employees.

C. Coverage Only the rank and file employees are entitled to the 13th month pay provided

that they have worked for at least 1month during the calendar year.o Rank and file employees – those who are not vested with powers or

prerogative to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees.

o Simply those who are not managerial employees. Piece-rate workers are entitled also since they’re employees and not

independent contractors. Those paid a fixed or guaranteed wage plus commission, based on their

earnings during the calendar year. Employees with multiple workers.

o Government employees working part time in priv. enterprises, including private educational institutions whether on full or part-time basis. 13th pay should be given to them by their private employers regardless of their total earnings from each of all their employers.

D. Not covered Managerial employees but company policy or established practice may cover

them. Sea-farers are not entitled since they are contractual employees. PD 851

contemplates the situation of land-based workers and not sea-farers who earn more than the former.

The following employers are not covered:o government and any of its political subdivisions, government –

owned and controlled corporations except corporations operating essentially as privates subsidiaries of the government

o Employers already paying 13th month pay or more in a calendar year or its equivalent

o Employers of household helpers or persons in the personal service of another

o Those paid purely on commission, boundary or task basis and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance of it

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LABOR STANDARDS REVIEWER 17

E. Computation It is 1/12 of the total basic salary earned by an employee within a calendar

year. The basic salary of an employee is used as the basis. Any compensation or

remuneration not part of basic salary is excluded as basis. Basic salary – all remuneration or earnings paid by his employer for his

services rendered but does not include allowances and monetary benefits.o Commissions are included in the basis salary for purposes of

computing 13th month pay.o Profit –sharing/productivity bonuses are not part of the computation

for basic salary.The minimum amount required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year.

F. Pro-rated 13 th month pay The pro-ration of 13th month pay is applied in cases of resignation or

separation from work. The computation should be based on the length of service and not on the

actual wage earned by the worker. EXCEPTION – Employees, who are paid a guaranteed minimum wage or

commission earned, whichever is higher, entitled to the 13th month pay based on total earnings.

G. Equivalents of 13 th month pay Mid-year bonus and Christmas bonus. Bonus must be at least equal to the 13th month pay due the employee;

otherwise, the employer shall pay the difference

Benefits in form of food or free electricity are not proper substitute for 13th month pay including year-end rewards for loyalty and service.

BONUS UNDER CBA 13th month paySource: Contract between the management and the employees.

Source: PD851.

It is an obligation created from the contact.

It is mandated by law.

Gives higher reward to the senior employees.

Based only on the length of work within the calendar year.

H. Bonus It is given out of gratuity of the employer but it is demandable or enforceable

obligation when it is made part of the wage/salary of the employee. If it is additional compensation which employer promised and agreed to give

without any conditions imposed for its payment it is part of wages. (CONDITIONS: success of business, production output)

o Simply: If it is stated in the employees contact, then it is mandatory.

I. Non-inclusion in regular wage

The mandated 13th month pay need not be credited as part of regular wage for purpose of determining overtime and premium payments, fringe benefits as well as SS, Medicare and private retirement plans.

V. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES

A. Employment of Women

ART. 130. NIGHTWORK PROHIBITIONNo woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation:(a) Industrial undertaking – between 10:00pm to 6:00pm(b) Commercial or non-industrial undertaking – between 10:00pm to 6:00pm(c) Agricultural undertaking – at nighttime unless she is given a period of rest of not less than nine consecutive hours.

Exceptions on nightwork prohibition of women:(a) Disaster or force majeure, in order to prevent loss of life or property.(b) Urgent work on machineries to avoid serious loss.(c) To prevent serious loss of perishable goods.(d) Woman employee holds managerial or technical position, or where she has been engaged to provide health and welfare services.(e) The work requires the manual skill and dexterity of women.

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LABOR STANDARDS REVIEWER 18

(f) The women employees are immediate members of the family operating the establishment.(g) Other analogous cases exempted by the Secretary of Labor.

What are the facilities for women employees that an employer should provide?(a) Proper seats which they can use when they are free from work and during working hours, provided they are still efficient in this position.(b) Separate toilet room, lavatory and dressing room.(c) Nursery(d) Standards for retirement or termination in special occupation.

ART. 133. MATERNITY LEAVE BENEFITS(a) Any pregnant women employee who has rendered an aggregate service of at least six months for the last twelve months is entitled to maternity leave benefits of at least two weeks prior to the expected date of delivery and another four weeks after normal delivery or abortion with full pay based on her regular or average weekly rates.(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.(c) Maternity leave is applicable only for the first four deliveries by a woman employee.

MATERNITY LEAVE UNDER SSS LAWQualifications:1. The female member should be employed at the time of the delivery, miscarriage, or abortion.2. She must have given the required notification to the SSS thru her employer.3. Her employer must have paid at least three months of maternity contributions within the twelve-month period immediately before the semester of contingency.

How much is the maternity benefit under SSS Law?100% of her average daily salary credit for 60 days or 78 days in case of caesarian delivery.

Every pregnant women in the private sector, whether married or unmarried, is entitled to the maternity leave benefits. (No. XI, DOLE Handbook on Worker’s Statutory Benefits)

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) DOLE shall develop bonus schemes to encourage family planning among female workers in any establishment. Discrimination of women employee is prohibited.

What are considered acts of discrimination?1. Payment of a lesser compensation to a female employee as against a male employee for work of equal value.2. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants.3. To deny or discharge any women employee the benefits provided under the Labor Code.4. To discharge a woman employee because of her pregnancy.5. To refuse the admission of such woman employee upon getting to her work for fear that she may again be pregnant.

ART. 136. STIPULATION AGAINST MARRIAGEIt shall be unlawful for an employer to require as a condition of employment or continuation of employment that women employees shall not get married, or be deemed resigned upon getting married, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage.

Any woman who is (1) permitted or suffered to work with or without compensation (2) in any night club, cocktail lounge, massage clinic, bar or similar establishment (3) under the effective control or supervision of the employer for a substantial period of time as determined by DOLE Secretary, is deemed an employee of such establishment.

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B. Employment of Minors

MINIMUM EMPLOYABLE AGE

The minimum employable age is 15.

A child below 15 years of age may be allowed to work for not more than 4 hours at any given day, nor more than 20 hours a week.

A child 15 years of age but below 18 shall not be allowed to work for more than 8 hours a day, and in no case beyond 40 hours a week. (R.A. 7610)

No child below 15 years of age shall be employed, except when he works under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.

C. Employment of Househelp

Domestic or household service shall mean services in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers.

The contract of domestic service shall not last for more than 2 years but may be renewed for such periods as may be agreed upon by the parties.

A househelper shall not be assigned to non-household work.

If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before expiration of the term except for just cause. If unjustly dismissed, he or she shall be paid the compensation already earned plus that for 15 days by way of indemnity. If he/she leaves without justifiable reason, he/she shall forfeit any unpaid salary due him/her not exceeding 15days.

If there is no contract, the employer or househelper may give notice to put an end to the relationship 5 days before the intended termination of service.

D. Apprentices

Apprenticeship is the arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job.

Objectives:1. To help the demand of the economy for trained manpower.2. To establish a national apprenticeship program through the participation of

employers, workers and government and non-government agencies.3. To establish apprenticeship standards for the protection of apprentices.

LEARNERSHIP APPRENTICESHIPBoth mean training periods for jobs requiring skills that can be acquired through actual work experience.Because both learner and apprentice are not as fully productive as regular workers, they receive paid wages 25% lower than the applicable legal minimum wage.Trains in a semi-skilled job or industrial occupations that require training for less than three months.

Trains in a highly skilled job or in a job found only in a highly technical industry hence training period exceeds three months.

Learnership is allowed even for non-technical jobs.

Employment of apprentices is legally allowed only in highly technical industries.

Involves theoretical perspective.

A learner is not an apprentice, but an apprentice is conceptually also a learner.

Qualifications:1. At least 15 but less than 18, only in nonhazardous occupations2. Physically fit (need not be physically fit unless it is essential to the

expeditious and effective learning of the occupation.)3. Possess vocational attitude.4. Ability to comprehend and follow oral and written instructions.

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Apprenticeship period shall not exceed six months. Hours of work – 8 hours.

o Time spent in a theoretical instructions shall be considered as hours of work and shall be reckoned jointly with on-the-job training time in computing in the agreement the appropriate periods for giving wage increases to the apprentice.

o An apprentice may be allowed to work overtime provided there are no available regular workers to do the job, which overtime shall be credited to his training time.

Previous training or experience shall be given due credit therefor. Parties to the agreement – Partnership agreement shall be signed by the

employer or his duly authorized representative and by the apprentice. If minor, it shall be signed by his parent or guardian, or by an authorized representative of the DOLE.

Ratio of theoretical and on-the-job training – 100 hours of theoretical instructions for every 2000 hours of practical or on-the-job training

Wages – Shall start at 75% of the statutory minimum wage for the first 6 months. Thereafter, he shall be paid the full minimum.

E. Learners

Learner is a person hired as a trainee in industrial occupations which are nonapprenticeable and which may be learned through practical training on the job for a period not exceeding 3 months.

Wages – not exceeding 6 months. Thereafter he becomes regular worker. Minor below 15 cannot be employed as learner. Those below 18 may only be

employed in nonhazardous occupations.

F. Handicapped Workers

Those whose earning capacity is impaired by age or physical or mental deficiency or injury.

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 working standards.

Wage shall at least 75% of the minimum wage. They shall not be precluded from employment if their handicap is not such as

to effectively impede in the performance of job operations in the particular trade or occupation.

VI. TERMINATION OF EMPLOYMENT

Coverage – This rule applies to all establishments, undertakings, whether operated for profit or not, including educational, medical, charitable and religious institutions and organizations, in cases of regular employment with the exception of the Government and it political subdivisions including government owned or controlled corporations.

Termination of employees:

REGULAR EMPLOYEE PROBATIONARY EMPLOYEEJust cause Just causeAuthorized cause provided by law Authorized cause provided by law

Failure to qualify in accordance with standards of the employer made known to him at the start of employment.

JUST CAUSE AUTHORIZED CAUSE TERMINATION BY EMPLOYEE W/O JUST

CAUSENeglect of dutiesDisobedienceAttempt against the life of the employerBreach of trustOther analogous

RedundancyRetrenchmentInstallation of labor saving devicesClosure of business

Serious insult by the employerInhuman or unbearable treatmentCommission of crime against the employeeOther analogous

Separation pay, as a rule, will NOT be paid

Separation pay required

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Types of employment:

1. Regular employment - when an employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer except:

a. where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee; or

b. where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

c. a probationary employee who is allowed to work beyond the probationary period shall be considered a regular employee.

2. Casual employment - Employment shall be deemed casual in nature if it is not covered by the preceding paragraph

UNLESS the employee has rendered at least one year (six months) of service whether such service is continuous or not, with regard to the activity in which he is employed and his employment shall continue while such activity exists.

3. Probationary employment - There is probationary employment where the employee, upon employment is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.

Rules on probationary employment: a. Where the work for which the employee was engaged is learnable or

apprenticeable, in accordance with the standards prescribed by the DOLE, the probationary period shall be limited to the authorized learnership or apprenticeship period, whichever is applicable;

b. Where the work is neither learnable or apprenticeable, the probationary period shall not exceed six (6) months reckoned from the date the employee actually started;

c. The services of a probationary employee may be terminated only for a just cause or authorized cause, or when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer; and

d. In all cases involving probationary employees, the employer shall make known the standards under which he will qualify as a regular employee at the time of his engagement.

Employees covered by contracting or subcontracting arrangement may NOT be dismissed prior to the expiration of the contract between the principal and the contractor or subcontractor as defined in Rule VIII-A, Book III.

NOTE: Trilateral Relationship in Contracting Arrangements – In a legitimate contracting there exists a trilateral relationship under which there is:

a. a contract for a specific job, work or service between the principal and the contractor or subcontractor;

b. an employment contract between the contractor or subcontractor and its workers.

Parties1. The principal which decides to farm out a job or service to a contractor; 2. The contractor or subcontractor which has the capacity to independently

undertake the performance of the job, work, or service; and3. The contractual workers engaged by the contractor or subcontracot to

accomplish the job, work or service.

Exceptions: for just and authorized causes; completion of the phase of the contract for which the employee was

engaged.

BUT – subject to the requirements of due process and notice.

IN ALL CASES, the standards of due process shall be observed: A written notice served on the employee specifying the ground or grounds

for termination, and giving said employee reasonable opportunity within which to explain his side;

A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him;

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and, A written notice of termination served on the employee indicating that upon

due consideration of all circumstances, grounds have been established to justify his termination.

For probationary employees – due to completion of a contract or phase thereof - notice of failure to meet standards of the company within a reasonable time before effectivity of termination.

The following are just causes for termination of employment:1. Serious misconduct or wilful disobedience by the employee of the lawful

orders of his employer or representative in connection with his work;2. Gross and habitual neglect by the employee of his duties;3. Fraud or wilful breach by the employee of the trust reposed in him by his

employer his duly authorized representative;4. Commission of a crime or offense by the employee against the person of his

employer or any immediate member of his family or his duly authorized representative; and,

5. Other causes analogous to the foregoing. (Batas Pambansa Blg. 130)

Art. 283 Closure of establishment and reduction of personnel Termination due to: the installation of labor-saving devices, redundancy; retrenchment to prevent losses; closing or cessation of operation of the establishment or undertaking

o UNLESS the same is for the purpose of circumventing the provisions of this Title.

Requirement: Service of formal notice to the employees affected and the Department of Labor and Employment at least one (1) month before intended date of closure or cessation of operation.

Separation pay for terminated employees as to the cause:REDUNDANCY OR LABOR

SAVING DEVICESCLOSURES OR

RETRENCHMENTTERMINATION DUE TO

DISEASEat least one (1) month pay or to at least one

one (1) month pay or at least one-half (1/2)

one (1) month pay or at least one-half (1/2)

(1/2) month pay for every year of service, whichever is higher.

month pay for every year of service, whichever is higher.

month pay for every year of service, whichever is higher.

A fraction of at least six (6) months shall be considered one (1) whole year. (BP Blg. 130).

Art. 284 Disease as ground for termination - An employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.

Book VI Rule I Sec. 8. – The employer shall not terminate the employment unless there is a certification issued by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six (6) months even with proper medical treatment.

If the ailment can be cured within the period, the employee shall not be terminated. Instead, the employer shall ask him to take leave, to be reinstated later to his former position immediately upon restoration of his normal health.

Basis of termination pay – The last salary of the employee unless it was reduced by the employer to defeat the law in which case the salary before the reduction shall be the basis.

Art. 285 Termination by employee – An employee may terminate without just cause the employer-employee relationship by serving a written notice at least a month in advance. Without such notice, the employer may hold the employee liable for damages.

No notice is required under the following circumstances:1. Serious insult by the employer or his representative on the honor and person

of the employee;2. Inhuman and unbearable treatment accorded the employee by the employer

or his representative;3. Commission of a crime or offense by the employer or his representative

against the person of the employee or any of the immediate members of his family; and,

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LABOR STANDARDS REVIEWER 23

4. Other causes analogous to any of the foregoing.

Art. 286 When employment not deemed terminated – 1. Bona fide suspension of the operation of a business or undertaking for a period

not exceeding 6 months;2. Fulfilment by the employee of a military or civic duty.

In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations OR from his relief from the military or civic duty.

Notes: Substantive and Procedural due process – Legality of the ground as provided under Art. 282; Legality of the manner of dismissal – observance of the procedural requirements.

(due process).(Aurelio vs. NLRC, 221 SCRA 432 [1993]); Shoemart, vs. NLRC 176 scra 385 [1989])

3. Failure to qualify as regular employee –International Catholic Migration Committee vs. NLRC, 169 SCRA 606 [1989])

4. Abandonment as ground for termination – to constitute a valid cause for termination must be a deliberate unjustified refusal of the employee to resume his employment. (Nueva Ecija Electric Cooperative vs. Minister of Labor, 184 SCRA 25 [1990]), coupled with a clear absence of any intention of returning to his or her work (C. Planas Commercial vs. NLRC, 303 SCRA 49 [1999]).

a. Filing of a complaint for illegal dismissal negates employer’s theory of abandonment. – (Rizada vs. NLRC 315 SCRA 316 [1999])

An employee entitled to immediate reinstatement per Labor Arbiter’s order but refuses the reinstatement, not deemed to have abandoned job. – (Jardin Davis vs. NLRC, 225 SCRA 757 [1993])

When closure is due to serious business losses or financial reverses, financial bankruptcy, not obliged to pay separation pay. (North Davao Mining & Development Corporation vs. NLRC, 254 SCRA 721 [1996])

Distinction between Redundancy and Retrenchment – Burden of proof upon employer to show compliance with the twin requirements of notices and hearing. (Viola Cruz vs. NLRC, 324 SCRA770 [2000]) Farrol v. Court of Appeals, 325 SCRA 331 [2000]}; Savellana vs. I.T. [International] Corporation, 356 SCRA 451 [2001].

SOCIAL LEGISLATION

RA 9710 MAGNA CARTA FOR WOMEN

What is discrimination against women? The Magna Carta of Women defines discrimination against women as:

any gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field;

any act or omission, including by law, policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges;

a measure or practice of general application that fails to provide for mechanisms to offset or address sex or gender-based disadvantages or limitations of women, as a result of which women are denied or restricted in the recognition and protection of their rights and in their access to and enjoyment of opportunities, benefits, or privileges; or women, more than men are shown to have suffered the greater adverse effects of those measures or practices; and

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LABOR STANDARDS REVIEWER 24

discrimination compounded by or intersecting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion.

Principles of human rights and rights of womenHuman rights are:

1. universal and inalienable2. indivisible3. inherent to the dignity of every human being4. interdependent and interrelated

What are the rights of women guaranteed under the Magna Carta of Women? All rights in the Philippine Constitution and those rights recognized under

international instruments duly signed and ratified by the Philippines, in consonance with Philippine laws. These rights shall be enjoyed without discrimination since the law prohibits discrimination against women, whether done by public and private entities or individuals.

The Magna Carta of Women also spells out every woman's right to: Protection from all forms of violence, including those committed by the State. Protection and security in times of disaster, calamities and other crisis

situations, especially in all phases of relief, recovery, rehabilitation and construction efforts, including protection from sexual exploitation and other sexual and gender-based violence.

Participation and representation, including undertaking temporary special measures and affirmative actions to accelerate and ensure women's equitable participation and representation in the third level civil service, development councils and planning bodies, as well as political parties and international bodies, including the private sector.

Equal treatment before the law, including the State's review and when necessary amendment or repeal of existing laws that are discriminatory to women;

Equal access and elimination of discrimination against women in education, scholarships and training.

o This includes revising educational materials and curricula to remove gender stereotypes and images, and outlawing the expulsion, non-readmission, prohibiting enrollment and other related discrimination

against women students and faculty due to pregnancy outside of marriage;

Equal participation in sports. o This includes measures to ensure that gender-based discrimination

in competitive and non-competitive sports is removed so that women and girls can benefit from sports development;

Non-discrimination in employment in the field of military, police and other similar services.

o This includes according the same promotional privileges and opportunities as their men counterpart, including pay increases, additional benefits, and awards, based on competency and quality of performance.

Non-discriminatory and non-derogatory portrayal of women in media and film to raise the consciousness of the general public in recognizing the dignity of women and the role and contribution of women in family, community, and the society through the strategic use of mass media;

Comprehensive health services and health information and education covering all stages of a woman's life cycle.

Leave benefits of two (2) months with full pay based on gross monthly compensation, for women employees who undergo surgery caused by gynecological disorders, provided that they have rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months;

Equal rights in all matters relating to marriage and family relations. o The State shall ensure the same rights of women and men to: enter

into and leave marriages, freely choose a spouse, decide on the number and spacing of their children, enjoy personal rights including the choice of a profession, own, acquire, and administer their property, and acquire, change, or retain their nationality.

The Magna Carta of Women also guarantees the civil, political and economic rights of women in the marginalized sectors, particularly their right to:

Food security and resources for food production, including equal rights in the titling of the land and issuance of stewardship contracts and patents;

Localized, accessible, secure and affordable housing; Employment, livelihood, credit, capital and technology;

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LABOR STANDARDS REVIEWER 25

Skills training, scholarships, especially in research and development aimed towards women friendly farm technology;

Representation and participation in policy-making or decision-making bodies in the regional, national, and international levels;

Access to information regarding policies on women, including programs, projects and funding outlays that affect them;

Social protection; Recognition and preservation of cultural identity and integrity provided that

these cultural systems and practices are not discriminatory to women; Inclusion in discussions on peace and development; Services and interventions for women in especially difficult circumstances or

WEDC; Protection of girl-children against all forms of discrimination in education,

health and nutrition, and skills development; and Protection of women senior citizens.

Marginalized refers to the disadvantaged or vulnerable persons or groups who are mostly living in poverty and have little or no access to land and other resources, basic social and economic services.

These include but not limited to women in the following sectors and groups: (SFU-WWM-IMC-SDS)

Small farmers and rural workers, Fisherfolk, Urban poor, Workers in the formal economy, Workers in the informal

economy, Migrant workers, Indigenous Peoples, Moro, Children, Senior citizens, Disabled persons Solo parents

Who’s primary duty is it to implement and give force and effect to the magna carta of women?

The State, the private sector, society in general, and all individuals shall contribute to the recognition, respect and promotion of the rights of women defined and guaranteed in the Magna Carta of Women.

What are the specific duties of government under the magna carta of women? The Philippine Government shall be the primary duty-bearer in implementing

the said law. This means that all government offices, including local government units and government-owned and controlled corporations shall be responsible to implement the provisions of Magna Carta of Women that falls within their mandate, particularly those that guarantee rights of women that require specific action from the State.

As the primary duty-bearer, the Government is tasked to:o refrain from discriminating against women and violating their rights;o protect women against discrimination and from violation of their

rights by private corporations, entities, and individuals;o promote and fulfill the rights of women in all spheres, including their

rights to substantive equality and non-discrimination. The Government shall fulfill these duties through the development and

implementation of laws, policies, regulatory instruments, administrative guidelines, and other appropriate measures, including temporary special measures. It shall also establish mechanisms to promote the coherent and integrated implementation of the Magna Carta of Women and other related laws and policies to effectively stop discrimination against Filipino women.

Pura’s tips:

The MCW focuses on providing equal opportunities for men and women. See Chapter 1, Sec. 2 of RA 9710 The MCW is also in compliance with the CEDAW

Implications on Labor Laws: Sec, 13 Sec. 17 Right to decent work standards for women

MIGRANT WORKERS AND OVERSEAS FILIPINO ACT OF 1995 (RA 8042) AS AMENDED

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AND FURTHER AMENDED BY RA 10022

Date of effectivity: August 13, 2010

Overseas Filipino Worker (OFW) Interchangeably used with migrant workers Person who is (1) to be engaged, (2) is engaged or (3) has been engaged in a

remunerated activity in a state of which he is not a citizen. Person who works on a vessel navigating the foreign seas

o except: government ship used for military or non-commercial purposes.

Person working on an installation located offshore or on the high seas

Deployment of Migrant Workers State may only allow deployment of migrant workers only in countries where

the rights of the Filipino Migrant Workers are protected. The following are considered as sufficient guarantees for the protection of

the OFWs:1. Has existing labor and social laws2. Signatory to multilateral conventions, declarations or resolutions

relating to the protection of OFWs3. Concluded a bilateral agreement with the government4. Taking positive and concrete measures to protect the rights of the

OFWs

Note: no permit for deployment shall be issued by the POEA in the absence of a clear showing that any of the mentioned guarantees exists. In the case of MWs, the employment contract has to be approved by the POEA.

The State shall also allow the deployment of overseas Filipino workers to:1. Vessels navigating on the foreign seas or to installations located offshore

whose owners or employers are compliant with internationalo laws.2. Companies and contractors with international operations

a. Provided that they are compliant with standards, conditions and requirements as embodied in the employment contracts prescribed by the POEA.

Termination or Ban on Deployment The POEA may impose a ban or termination of deployment to countries that

may be found not complying with the aformentioned conditions and guarantees.

In pursuit of national interest or when public welfare so requires.

What is illegal recruitment? Art. 38 of RA 10022 defines such as;

o Any act of: (CECTUHP) Canvassing Enlisting Transporting Contracting Hiring Utilizing Procuring workers

o Including Referring contract services Promising or Advertising for employment

o Whether for profit or not, when undertaken by non-licensee or non-holder of authority.

The following are prohibited acts: Charge or accept directly or indirectly any amount greater than that specified

in the schedule of allowable fees prescribed by the Secretary of Labor and Employment or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance.

Furnish or publish any false notice or information or document in relation to recruitment or employment.

Give any flase notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code or for the purpose of documenting hired workers with the POEA.

Induce or attempt to induce a worker already employed to quit his

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LABOR STANDARDS REVIEWER 27

employment.o Unless the transfer will liberate the worker from oppresive terms

and conditions of employment. Influence or attempt to influence any person or entity not to employ any

worker who has not applied for employment through his agency. Engage in the recruitment or placement of workers in jobs harmful to public

health or morality.

Who are liable? Principals, accomplices and accessories In case of juridical persons, the officers who has ownership, control,

management or direction of the business who are responsible for the commission of the offense and the responsible employees/agents.

SYNDICATED ILLEGAL RECRUITMENT LARGE SCALE ILLEGAL RECRUITMENTCarried out by (3) or more persons conspiring or confederating with one another.

Committed against (3) or more persons individually or as a group.

Look at the number of the people who committed.

Look at the number of people who were victimized.

Jurisdiction1. Labor Arbiter (NLRC) has original and exclusive jurisdiction over:

a. Money claims arising out of an ER-EE relationshipb. By virtue of any law or contract involving Filipino workers for

overseas deployment including claims for actual, moral, exemplary and other forms of damages.

2. POEA – responsible for promoting overseas employment and protect rights.a. Retains original and exclusive jurisdiction to hear and decide:

i. Administrative cases involving violation of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities;

ii. Disciplinary action cases and other special cases which are administrative in character involving employers, principals, contracting partners and Filipino MWs.

Pura’s tip: the regulatory functions of the POEA will be faced out within 5 years.

3. RTCa. Criminal action arising from illegal recruitment shall be filed with the

RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense.

b. Once the RTC acquires jurisdiction, other courts are excluded.

Effects of termination of overseas employment WITHOUT JUST, VALID OR AUTHORIZED CAUSE

Worker shall be entitled to the following:o Full reimbursement of his placement feeo Deductions made with interest at 12% per annumo Salaries for the unexpired portion of his employment contract or for

the three months for every year of the unexpired term, whichever is less.

SOCIAL SECURITY SYSTEM (RA 1161 AS AMENDED BY RA 8282)

Declaration of policy: It is the policy of the RP to establish a sound and viable social security service Promote social justice to members and prevent hazards Resulting in loss of income or financial burden The main beneficiaries of the law are the workers and subsidiary

beneficiaries.

Powers and duties of SSS – Sec. 4 Proprietary powers. It is a juridical person that’s why it has the power and

right to acquire properties through its semi facilities. They can project how much they should be collecting and how much they can

provide to their members through their actuary.

Settlement of disputes – Sec. 5

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Because of the functions of SSS, it is not a remote possibility that somehow it will be involved in disputes; or its members be involved in one dispute or another.

These disputes arising under this act, with respect to coverage, shall be cognizable by the comission.

These disputes may be heard either by the comission or by any of its members

o They also have a legal department. The decision of the comission shall be appealable to the Court of Appeals.

o Same procedure as if the decision was from a trial court.

Definition of terms – Sec. 8 Dependents – the following are considered to be dependents:

o Legal spouse entitled by law to receive support from the membero Legitimate, legitimated, legally adopted childo Illegitimate child

Unmarried Not employed Has not reached 21 y/o If over 21 y/o, he is congenitally or while still a minor has

been permanently incapacitated and incapable of self-support, physically or mentally

o Parent who is receiving regular support Monthly salary credit – compensation base for contributions and benefits as

indicated in the scheduleo If for example, you have 2 employers and you have a salary under

the monthly salaray credit for both jobs. Under the law, there is only 1 membership entitiled per person.

o 1ER = P6,000 and 2ER = P6,000o The member shall use the same SS number. The 2E shall only pay for

the contribution proportional to that of the salary he is paying.o If the 2ER shall pay a salary that will exceed the monthly maximum

salary credit, the 2ER shall only pay for the salary up to the amount that meets the monthly maximum salary credit.

Remittance of contribution

o If the employer fails to remit on time, they shall pay for additional 3%

o If the employer habitually fails to remit, an estafa case may be filed against the employer

This is estafa because of the contributions that should be yours.

Coverage of SSSo Compulsory upon all employees not over 60 years of age and their

employerso Spouses may be covered on a voluntary basiso Filipinos recruited by foreign-based employers for employment

abroad may be covered by the SSS on a voluntary basis. Beneficiaries – the dependent spouse until he or she remarries, the

dependent legitimate, legitimated or legally adopted and illegitimate children who shall be the primary beneficiaries:

o That the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children.

o In the absence of the legitimate, legitiamated or legally adopted children, illegitimate children shall be entitled to 100% of the benefits

o In their absence, the dependent parents shall be the secondary beneficiaries

o In the absence of all the foregoing, any person designated by the employee as their secondary beneficiary.

Contingency – the retirement, death, disability, injury or sickness and maternity of the member.

RA 7875 AN ACT INSTITUTING A NATIONAL HEALTH INSURANCE PROGRAM FOR ALL FILIPINOS AND ESTABLISHING THE PHILIPPINE HEALTH INSURANCE CORPORATION

FOR THE PURPOSE.

Dependents – legal dependents of a member are: Legitimate spouse WHO IS NOT A MEMBER Legitimate, legitimated, illegitemate, legally adopted children

o Provided acknowledged with evidenceo Under 21 years

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LABOR STANDARDS REVIEWER 29

o If over 21, must be suffering from a disability rendering him totally dependent for support

Parents who are 60 y/o or above whose monthly income is below or above P5,000

Benefit package The following categeries:

o In patient hospital careo Out patient hospital care

Entitlement to benefits A member whose premium contributions for at least 3 months have been

paid within 6 months prior to the 1st day of availment shall be entitled to the benefits of the program. Provided that he pays contributions with sufficient regularity.

o Provided further the he is not currently subject to legal penalties.o “sufficient regularity” pertains to the history of the payment of

premiums. At least 3 months contribution 6 months prior to availment/ confinement You have to be employed for 6 months prior to confinement and you have at

least 3 months contribution to avail.

Quasi judicial powers Render deicisions Shall conduct proceedings or any part thereof in public or executive manner

depending on the case They are more of an administrative body with regard to procedure. But they

have a quasi judicial function.

RA 9241 AN ACT AMENDING REPUBLIC ACT NO. 7875, OTHERWISE KNOWN AS “AN ACT INSTITUTING A NATIONAL HEALTH INSURANCE PROGRAM FOR ALL FILIPINOS AND ESTABLISHING THE PHILIPPINE HEALTH INSURANCE CORPORATION FOR THE

PURPOSE.”

In the old law, those suffering from congenital diseases were not included.

Provisions are almost just the same with RA7875

1987 CONSTITUTIONARTICLE XIII, Section 3

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

3 parts of the provision Economic

o Full protection to labor: Local Overseas Organized Unorganized

o Promote full employment and equality of employment opportunities o Guarantee the rights of workers:

Self-organization Collective bargaining and negotiations Peaceful concerted activities Right to strike

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LABOR STANDARDS REVIEWER 30

o Entitlement to: Security of tenure Humane conditions of work Living wage

Dispute settlemento Promote principle of share resposibility between workers and

employerso Preferential use of voluntary modes of settling disputeso Enforce mutual compliance to foster industrial peace

State regulation of employee-employer relationshipo Recognize the right of labor to its just share in the fruits of

productiono Right of enterprises to reasonable returns on investments, expansion

and growth

NATIONAL LABOR RELATIONS COMMISSION AS AMENDED BY RA 9347

CHAPTER I: CREATION AND COMPOSITIONART. 213: NATIONAL LABOR RELATIONS COMMISSION

(as amended by RA 9347)

National Labor Relations Commission (NLRC) an administrative body with quasi-judicial functions and the principal

government agency that heards and decides labor management disputes. attached to the DOLE for program and policy coordination only. Composed of the following:

o 1 chairmano 23 members

Jurisdiction of the NLRCEXCLUSIVE AND ORIGINAL EXCLUSIVE APPELLATE

Certified cases – cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263 or the President

Cases decided by Labor Arbiters under Art. 217(b) of the Labor Code and Sec. 10 of RA8042 (Migrant Workers Act)

under Art. 264Injunction cases under Art. 218 and 264 Cases decided by the Regional Offices of

DOLE in the exercise of its adjudicatory function under Art. 129 of the Labor Code over monetary claims of workers amounting to NOT MORE THAN P5,000

Contempt cases

CHAPTER II: POWERS AND DUTIESArt. 217: JURISDICTION OF LABOR ARBITERS AND THE COMMISSION

Exclusive and original jurisdiction of Labor Arbiters – the following cases involving all workers, whether agricultural or non-agricultural (UTR-DVO-DCDO)

1. U LP casses2. T ermination disputes3. Claim for reinstatement that workers (including overseas workers) file

involving the following:a. Wagesb. Rates of payc. Hours of workd. Other terms and conditions of employment

This is limited only to those arising from statutes or contracts other than the CBA.

4. Claims for damages arising from ER-EE relationsa. Actualb. Moralc. Exemplaryd. Other forms

5. Cases arising out of violation of Art. 264, including questions involving legality of strikes and lockouts

6. Monetary claims of overseas contract workers arising from ER-EE relations under the Migrant Workers Act

7. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties

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LABOR STANDARDS REVIEWER 31

8. Enforcement of compromise agreements when there is non-compliance by any of the parties

9. O ther cases as provided by law

Note: Although the provision speaks of exclusive and original jurisdiction of Labor Arbiters, the cases enumerated may be submitted to a voluntary arbitrator by agreement of parties under Art. 262. THE LAW PREFERS VOLUNTARY OVER COMPULSORY ARBITRATION.

The Labor Arbiters has jurisdiction over controversies involving employers and employees only if there is a REASONABLE CAUSAL CONNECTION BETWEEN THE CLAIM ASSERTED AND THE ER-EE RELATIONSHIP. Without such link, the complaint is cognizable by the regular court.

The following cases must be disposed of the Labor Arbiter by referring the same to the greivance machinery and voluntary arbitration:

Disputes over the interpration or implementation of the CBA Disputes over the interpretation or enforcement of the company

personnel policies

2005 NLRC Rules of Procedure on Venue of Filing Cases1. All cases which Labor Arbiters have authority to decide may be filed in the

Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant/petitioner.

a. WORKPLACE is understood to be the place or locality where the employee is regularly assigned when the cause of action arose.

i. In case of field employees, ambulant or itinerant workers, their workplace is:

1. Where they are regularly assigned2. Where they are supposed to regularly receive their

salaries and wages3. Where they receive their work instructions from4. Where they report the results of their assignments

to their employers2. Where 2 or more RABs have jurisdiction over the workplace, the first to

acquire jurisdiction shall exclude others.

3. Improper venue when not objected to before filing of position papers shall be deemed waived.

4. Venue may be changed by written agreement of the parties or when there Commission or Labor Arbiter so orders, upon motion by the proper party in meritorious cases.

5. For overseas contract workers, where the complainant resides or where the principal office of the respondent employer office is located, at the option of the complainant.

Pura’s tip: When you file a case for illegal dismissal, always include backwages. Always pray for reinstatement. So that if the dismissal is ruled as illegal, there is reinstatement. As long as there is no ruling, the backwages shall continue to accrue.

On the complaint: Look into how the labor standards are being violated? Does the employer

observe the minimum standards of employment?o Are they being paid holiday pay?o Are they being paid their night differential?

The Labor Arbiter will schedule the case for compulsory concillation. Efforts will be exerted to settle the case amicably.

Section 4. Prohibited pleadings 1. Motion to dismiss the case2. Bill of particulars3. Relief for new judgement4. Motion for new trial5. Petition for review from judgement6. Certiorari, mandamus or prohibition

When the decision is adverse to you, file a notice of appeal with a memorandum of appeal within 10 days with the NLRC. The employer also files a bond.

Art. 221: TECHNICAL RULES NOT BINDING ANDPRIOR RESORT TO AMICABLE SETTLEMENT

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LABOR STANDARDS REVIEWER 32

Quasi-judicial bodies like the NLRC are not bound by technical rules of procedure of adjudication of cases.

The following are prohibited pleadings and motions under 2005 NLRC Rules of Procedure

1. Motion to dismiss, except:a. on the ground of lack of jurisdiction over the subject matterb. Improper venuec. Res judicatad. Prescription and forum shopping

2. Motion for bill of particulars3. Petition for relief from judgement when filed with the labor arbiter4. Petition for Certiorari, Prohibition and Mandamus5. Motion to declare respondent in default6. Motion for reconsideration or appeal from any interlocutory order

Amicable settlement – the Labor Arbiter shall exert all efforts to arrive at an amicable settlement of a labor dispute within its jurisdiction on or before its first hearing or during the mandatory conferences set for the purpose.

CHAPTER III; APPEAL TO THE NLRCArt. 223: appeal

Grounds for an appeal (FLEP): If the discussion, order or award was secured through Fraud or coercion,

including graft and corruption If made purely on questions of Law If serious Errors in the findings of facts are raised which would cause

grave or irrepairable damage to the appellant If there is Prima facie evidence of abuse of discretion on the part of the

Labor Arbiter

Note: No motion for reconsideration is available in questioning the Labor Arbiter’s decision.

Period for appeal is NOT EXTENDIBLE – the perfection of an appeal within the statutory/reglementary period is not only mandatory but also jurisdictional. Failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgement of the Regional Directors and Labor Arbiters.

Requisites for the perfection of an appeal to the NLRC:1. Verified memorandum of appeal

a. Containing the grounds, issues raised and arguments propounded and reliefs sought within the required period of appeal

b. Statement of the date appellant received the appealed decisio, order or resolution

2. In (3) legibly typewritten or printed copies3. Proof of payment of the required appeal fee4. In case of monetary award, an appeal by the employer may be perfected only

by the posting of a bond (appeal bond).5. Proof of service upon the other parties6. Certificate of non-forum shopping

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