Notes on Philippine Labor Standards Laws 1 - Amended July 17, 2013

8/12/2019 Notes on Philippine Labor Standards Laws 1 - Amended July 17, 2013

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LABOR LAWS OF THE PHILIPPINESMINDANAO JURIS REVIEW CENTER

PRELIMINARY:

Situation: Supposed a Doctor (Caloy) who is single has a Secretary(Karen). He pays the Secretary monthly compensation for doing the work of areceptionist but the relationship deeloped and eentually they got married.!ut een after marriage" the wife continued to be a Secretary of the Doctorand continued receiing monthly salary which is deducted from the grossearnings of the Doctor and to what e#tent is ta#able income. Howeer" theDoctor$husband decides and wants his wife to stop working because they nowhae a child. Conse%uently" her employment has been seered.

Q1. (a) &hat is the employment status of 'uby before and after

marriage (b) s there employer$employee relationship between Dr. Caloy andKaren (c) Can Karen (the wife$secretary$employee) *le an action for illegaldismissal because she claims security of tenure after haing been employedfor more than one (+) year" and for money claims (labor standards bene*ts)

Q2.&ould your answer be the same if 'ene and 'uby lied as husbandand wife without the bene*t of alid marriage

A.Beforemarriage , employer and employee e#ist and Karen is deemeda regular employee- after marriage such relationship no longer subsists.Hence" she has no cause of action against her husband$doctor.

he principle of law is that if there is more fundamental relationshipbetween the parties" that is the relationship that preails (/amily and 0roperty'elations between Husband and &ife- 'ights and 1bligations of Husband and&ife" /amily Code of the 0hilippines). hat is why we will *nd out in laborstandards (Book III, Title I) that 2member of t!e famil" #e$e%#e%t o% t!eem$lo"er for &$$ort are e'le# from t!e $roiio% of t!e labor ta%#ar#la*.3 his is because there may be accountabilities4conictions for itsiolations.

t is ery di5cult to demarcate the relationship of the employee$wife$

'uby with the husband$'ene and secondly" it becomes a problem of6urisdiction.

7nlike the regular courts" the labor tribunals are %uasi$6udicial bodieswith special4limited 6urisdiction. hey do not hae general 6urisdiction.

7nder the factual milieu" there is no doubt that no employer$employeerelationship e#ists between 'ene and 'uby after marriage. !y law and6urisprudence" there being a *nding that there e#ists no employer$employeerelationship between the parties" the issues of whether or not 'uby is entitledto backwages" separation pay and other money claims" do not desere to be

passed upon. /or the 6urisdiction of the labor tribunal is primarily predicatedupon the e#istence of an employer$employee relationship between theparties. Hence" the absence of such element remoes the controersy from itsscope of limited 6urisdiction.+

1 891'89 8'1;H< 8=!H > C1. s. 7D89 S


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0age B of +G 'eiew ri%i$le of No%9o$$reio%).

@. ;rt. +G? , n case of doubt" all labor legislations and all laborcontracts shall be construed in faor of safety and decent liingfor the laborers. (Correlate *it! art. @, /C>)

E. ;rt. +G@ ,


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0age G of +G 'eiew eo$le . VeraRe"e, 31 >!il. 01)

NOTE:9ery pay day gies an independent cause of action. (Abraal#o .CIA Maritima, /90001, J&l" 50, 0)

. SPEIAL LAWS:

+. SSS Iaw (RA 0030, a ame%#e# b" RA 55, Ma" 5@, 01)?. 8SS Iaw ('; ++EB" as amended by '; F?+" =ay @" +G)@. Iimited 0ortability Iaw of +E(RA 13)E.


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@. 0rotection to labor is ai: Mill,I%. . Alo%+o, 0 SCRA 301)

e. Ma(a*#7#(t Ri*hts: he employer has the right to:+. Conduct business-?. 0rescribe rules-@. Select and Hire employees-E. ransfer or discharge employees- andA. 'eturn of inestment and e#pansion of business.

$ 7nder the Dotri%e of Ma%a7eme%t >rero7atie" eery employerhas the inherent right to regulate" according to his own discretion and6udgment" all aspects of employment" including H'


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0age + of +G 'eiew a&l Colle7e . A%!eta, ;R No.032, Se$t. 1, 5200)

B. PRE/EMPLOYMENT (!ook 1ne)

he law on pre$employment is !ook (;rt. +?$E?) of the Iabor Code and'; FE?" the =igrant &orkers and 1erseas /ilipino &orkers ;ct of +A" asamended by '; +??.

RERITMENT AN- PLAEMENT OF WOR0ERS:

2 Section +. E%foreme%t >o*er a%# Reme#ie. n the e#ercise of itspower of superision and control oer electric cooperaties and other borrower"superised or controlled entities" the


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0age ++ of +G 'eiew eo$le . Sale", 50 SCRA 10,06 >eo$le . ;oe, A&7. 5, 0)

?. he number of persons dealt with is not an essential ingredient4element ofthe act of recruitment and placement of workers. t is not necessary that one promiseemployment to ? or more for a fee for there to be recruitment and placement. heproiso merely creates a presumption. (>eo$le . >a%i, ;R No. /931@911, J&l" 00,03)

2. What is a Pi'at# R#)%it7#(t A*#()!$ any person or association engaged in the recruitment and placement of

workers" locall% or o#erseas, without charging" directly or indirectly"any fee from the workers or employers.

3. What is a li)#(s# a(& a%thoit!

License $ a document issued by D1I9 authoriing a person or entityto operate a priate employment agency.

Aut$orit% / a document issued by D1I9 authoriing a person orassociation to engage in recruitment and placement actiities as apriate recruitment agency.

+. What is th# #l#'a(t la" o( #)%it7#(t $o o'#s#as

#74lo7#(t!

=igrant &orkers and 1erseas /ilipinos ;ct of +A (R. A. No. 2@5 aame%#e# b" RA 02255, Ma" , 5202).

(See 0ower0oint presentation for more e#tensie discussion of thistopic)

5. What is o'#s#as #74lo7#(t!

$ employment of a worker outside the 0hilippines coered by a alidcontract. (>OEA R&le a%# Re7&latio% ;oer%i%7 t!e Rer&itme%t a%#Em$lo"me%t of /a%#9Bae# Oerea Worker, Geb @, 5225)

NOTES:


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0age +@ of +G 'eiew OE R&le), roundsfor disciplinary action under '; FE?:

+. 0rostitution-?. U%8&t Ref&al to #e$artfor the worksite-@. ;&%9r&%%i%7or possession of deadly weapons-E. Va%#alim or destroying company property-A. Violatio% of t!e la* a%# are# $ratie of t!e !ot o&%tr" and

&%8&ti:e# brea! of em$lo"me%t o%trat-B. Embe++leme%t of f&%# of the company or fello* *orker e%tr&te# for

#elier"to relaties in the 0hilippines-G. Creati%7 tro&bleat the worksite or in the essel-F. 8ambling-. I%itiati%7or 8oi%i%7 a trikeor work stoppage where the laws of the host

country prohibit strikes or similar actions- +. Commiio% of Gelo%" punishable by 0hilippine laws or by the hostcountry-

++. heft or 'obbery- +?. Drunkenness +@. Drug addiction or possession or tra5cking of prohibited drugs- and

+E. Desertion or abandonment.

12. Whi)h has %is&i)tio( o'# &is)i4li(a a)tio( )as#s o$ OFWs!

he POEA retains 6urisdiction oer disciplinary action cases. (Eater%

Me#iterra%ea% Maritime /t#. H A;EMAR Ma%%i%7 A7e%", I%. . Eta%ilaoS&rio, et al., ;.R. No. 0@504,August /3, /01/)

;lthough 'epublic ;ct


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e. 15cials and employees of the D1I9 or other goernment agenciesdirectly inoled in oerseas employment program and their relatieswithin the Ethciil degree by consanguinity or a5nity- and

f. hose whose license hae been preiously cancelled or reoked (Se. 5,R&le I, 5225 R&le a%# Re7&latio% o% t!e Rer&itme%t a%# Em$lo"me%tof /a%#9Bae# Worker)

15. Is &i#)t/hii(* o$ OFWs allo"#&! Wh!

9mployers cannot directly hire workers for oerseas employmente2ceptthrough authoried entities (ee e%&meratio% aboe).Art. 0, /C>

E9)#4tio(: Direct$hiringby:0. =embers of the -iplomatic corps-5. International organiations-4. 1ther employers as may be allowed by the Sec. of Iabor- and@. Name Hirees , indiidual workers who are able to secure

contracts for oerseas employment on their own eLorts andrepresentations without the assistance or participation of any

agency. heir hiring" nonetheless" shall pass through the 019;for processing purposes. (>art III, R&le III of >OEA R&le ;oer%i%7Oerea Em$lo"me%t, a ame%#e# i% 5225)

Note A%" %o%9rei#e%t forei7% or$oratio% #iretl" !iri%7 Gili$i%o*orker i #oi%7 b&i%e i% t!e >!ili$$i%e a%# ma" be &e# i%t!e >!ili$$i%e.

he reason for the ban:$ to ensure full regulation of employment in order to aoid e#ploitation-$ to assure the best possible terms and conditions of work to the

employee- and $ to assure the foreign employer that he hires only%uali*ed /ilipino workers.

1=. Ma(&ato #7itta()# o$ Fo#i*( E9)ha(*# Ea(i(*s. (Art. 55)

$ ;ll 1/&s are re%uired to remit a portion of their foreign e#change


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0age +B of +G 'eiew OEA R&le)

a) Seaman or mariners $ FTb) &orkers for /ilipino Contractors4Construction Co. $ GT

c) 0rofessionals" 9mployment Contract proide freelodging $ GTd) 0rofessionals without !oard > Iodging $ ATe) Domestic4other Serice workers $ AT

E9)#4t:

+. /ilipino sericemen working in 7DS military installation-?. mmediate family members" dependents or bene*ciaries" 'esiding with 1/&

abroad-

@. mmigrants and /ilipino 0rofessionals4employees working with 7< agenciesor

specialied bodies (Reol&tio% 094, I%ter9A7e%" Committee 9Im$leme%ti%7 EO 1)

EFFETS o$ Fail%# to R#7it:

1. or4erswho fail to comply with mandatory remittance re%uirement shallbe &$e%#e# or e'le# from the lit of eli7ible *orker for oereaem$lo"me%t. Subse%uent iolations shall warrant his repatriation-

/. E"plo%ers who fail to complay shall be e#cluded from the oerseasemployment program. 0riate employment agencies or entities shall facecancellation or reocation of their licenses or authority to recruit" withoutpre6udice to other liabilities under e#isting laws and regulations. (Se. , EO1, Deember 04, 05)

1C. POEA has th# 4o"# to:

0. Suspend or cancel license- and5. 1rder the refund or reimbursement of such illegally collected fees.

(Eater% A&ra%e a%# S&ret" Cor$. . Se. of /abor, ;R No. 1@4392, Ja%&ar" 01, 02)

DRON-S $o s%s4#(sio( , a()#latio( o$ Li)#(s#:

+. he acts prohibited under ;rt. @E-?. Charging a fee in e#cess of the authoried amount-@. Doing recruitment in places outside its authoried area-E. Deploying workers without processing through the 019;- and5. 0ublishing 6ob announcements without the 019;Js prior approal

(Se. @, R&le II, Book IV, >OEA R&le)

%is&i)tio( / he D1I9 Secretary (Art. 4, /C>) and the 019;

;dministrator (Se. 0 R&le II, Book VI, Ne* R&le o%Oerea Em$lo"me%t) hae C1


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0age +G of +G 'eiew ai: Aia Oerea S!i$$i%7 Cor$. . N/RC, ;R13, 3 Ma" 0)-

?. Tort, fall under the proisions of Ciil Code.

1. EJAMPLE OF INKALI- ADREEMENTS

+. Signing satisfaction receipts is not a waier. ;ny agreement toreceie less compensation than what the worker is entitled to recoeris inalid. (MR ar# Cre* U%io% . >NR, ;R /9 44350, 53 J&l" 013)

?. ;ltering agreement that diminishes the workerJs pay and bene*ts as

contained in a 019;$approed contract is oid" 7er+, &$ra)

2G. Mi(i7%7,Sta(&a& o(&itio(s o$ O'#s#as E74lo7#(t o(ta)t

+. 8uaranteed wages for regular working hours and oertime pay-

?. /ree transportation from point of hire to site of employment andreturn-

@. /ree de%uate board and lodging facilities or compensatory foodallowance-

E. /ree emergency medical and dental treatment facilities-A. ust causes for termination of the serices of 1/&-B. &orkmenJs compensation bene*ts and war haard protection-G. /ree repatriation of workerJs remains and properties in case of death-

andF. ;ssistance on remittance of workerJs salaries and allowances.

21. So7# SALIENT FEATRES o$ RA 1GG226 ame%#i%7 Setio% 02, RA2@5:

+. ;ny compromise4amicable settlement or oluntary agreement to bepaid4implement within @ days from approal Opreiously E monthsP (Se.1)-

?. ;utomatic dis%uali*cation of foreign employer4principal from participating inthe 019; 0rogram and recruiting4hiring /ilipino workers" in case of *nal ande#ecutory 6udgment" until and unless it fully satis*es the 6udgment award-ibi#

@. 0erformance bond *led recruitment4placement agency shall be answerablefor all money claims or damages- ibi#E. Compulsory insurance coerage for ;gency$hired &orkers at no cost to the

worker deployed- alid4eLectie for the duration of the 19C- (Se. 419A)

22. What is ILLEDAL RERITMENT @IR!


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0age +F of +G 'eiew roi#e#" thatany such non$licensee or non$holder who" in any manner" oLers or promisesfor a fee employment abroad to two or more persons shall be deemed asengaged in such act. ;lso includes the act of reprocessing workers through a6ob order that pertains to none#istent work" work diLerent fromt eh actualoerseas work or work with a diLerent employer" whether registered or notwith the 019;. (Se. , $ara7ra$! a ame%#e# b" RA 02255)

t shall likewise include the commission of the following prohibited actswhether committed by a non$licensee or non$holder of authority or a licenseor holder of authority (Se. 3, RA 2@5)

+. hose prohibited practices enumerated under ;rt. @E-?. /ailure to actually deploy without alid reason as determined by

D1I9-@. /ailure to reimburse e#penses incurred by the worker in connection

with his documentation and processing for purposes of deployment incases where the deployment does not actually take place without theworkerJs fault- and

E. 'ecruitment and placement actiities of agents or representatiesappointed by a licensee" *!oe a$$oi%tme%t *ere %ot $reio&l"a&t!ori+e# by the 019; shall likewise constitute IR.

NOTE:eerral $ the act of passing along or forwarding of an applicant for

employment for initial interiews. (>eo$le . ;oe, A&7. 5, 0)

23. ELEMENTS o$ ill#*al #)%it7#(t:

a. Fist #l#7#(t: R#)%it7#(t a(& 4la)#7#(t a)ti'iti#s.he oLender undertakes either any recruitment actiities de*nedunder ;rt. +@ (b) or any prohibited practices enumerated under ;rt.@E- and

b. S#)o(& #l#7#(t: No(/li)#(s## o (o(/hol o$ a%thoit.he oLender is a licensee4non$licensee or holder4non$holder ofauthority engaged in the recruitment and placement of workers.(>eo$le . Sa#ioa, ;R No. 0212@, Ma" 0, 0)

Non*licensee or non*$older o aut$orit% $ means any person"corporation or entity which has not been issued a alid license or authority to engagein recruitment and placement by the Secretary of Iabor and 9mployment" or whoselicense or authority has been suspended" reoked or canceled by the 019; or theSecretary of Iabor and 9mployment.

So7# #l#'a(t 4i()i4l#s:


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0age + of +G 'eiew he accused represented themseles tocomplainants to hae the capacity to send workers abroad" although they didnot hae any authority or license. t is by this representation that theyinduced complainants to pay a placement fee. Such act constitutes estafaunder ;rt. @+A" par. ? of the 'eised 0enal Code. (>eo$le . -er%a%#e+, ;RNo. 0@0550943, mar! 1, 5225)

2=. MONEY LAIMS o$ OFWs.

a. OFWs a# NOT ENTITLE- to th# #li#$s %( Ati)l# 2C.

he proper basis for the monetary awards of the oerseas /ilipinoworkers (1/&s) is Section + of '. ;.


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0age ?@ of +G 'eiew ARTICI>ATED in illegalrecruitment. (>eo$le . Cabai, ;R No. 05212, 03 Mar! 5220)

31. RLE ON PREMATRE TERMINATION o$ OE.

+. f terminated on grounds other than those that are lawful and alidbefore the agreed termination date" the employer will pay the workerstheir salaries corresponding to the une#pired portion of theemployment contract. (Vi%ta Maritime Co. . N/RC, ;R 00400, 54 Ja%&ar"0)

?. f the date of termination occurred on or after uly +A" the law toapply is '; FE?. 7nder Se. 02" a worker dismissed from oerseas

employment without 6ust" alid or authoried cause is entitled to fullreimbursement of his placement fee with interest at +?T $er a%%&m"plus his salaries for the une#pired portion of his employment contractor for three (@) months for eery year of the une#pired term" whicheeris lesser.

NOTE: 0'9$9'= if the pre$termination is not attributed to the fault of the oerseasworker" he is entitled to the une#pired portion of the 19C. (ee Serra%o r&li%7,;.R. No. 03130@, 5@ Mar! 522, AF? SC'; ?AE)

32. EFFET o$ +ailure to deplo% * n >a&l Sa%tia7o . CG Cre*Ma%a7eme%t, I%., ;R, 035@0, 02 J&l" 5221" the Court held:

2'espondentJs act o pre#enting petitioner ro" departingt$e port o !anila and boarding 2=SQ Seaspread3 constitutes abreac$ o contract, gi#ing rise topetitioner;s cause o action.


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0age ?F of +G 'eiew ero%, a ame%#e# b" RA @@5) , those who are suLering fromrestrictions or diLerent disabilities as a result of a =ental" 0hysical" orSensory impairmentto perform an actiity in the manner or within the

range considered noraml for a human being.

- Ha(&)a44#& "o#s 7a b#)o7# #*%la #74lo##s.he noble ob6ecties of teh =agna Carta for Disabled 0ersons are notbased merely on charity or accomodation" but on 6ustice and e%ualtreatment of %uali*ed employees" disabled or not. ;fter the disbaledemployees had shown their *tness for the work assigned to them" theyshould be treated and granted the same rights like any other regualeemployees. (Ber%ar#o et al . N/RC H GEBTC, ;.R. 05501, J&l" 0, 0).


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0age ? of +G 'eiew D 0) +E. =edicare(RA 11 a ame%#e#RA 5@0) G. ermination 0ay +A. 0ag!8 (RA 11@5)

F. 'etirement 0ay (RA 13@0?RA ) +B. =edical4Dental Srices (Art.0, /C>) +G. !attered &oman Ieae (RA 535)

WOR0IND ON-ITIONS OF EMPLOYMENT:

1. What a# th# 4o'isio(s o$ th# Labo o o( "oi(* )o(&itio(s!

he following proisions are coered under !ook of the Iabor Code:

Ati)l# 3 / No7al ho%s o$ "oAti)l# + / Ho%s "o#&Ati)l# 5 / M#al 4#io&sAti)l# = / Ni*ht shi$t &i


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0age @@ of +G 'eiew ours $ ; normal workday shall

consist of not more than eight (F) hours. he regular working hours forthe Company shall be from G:@ ;.=. to E:@ 0.=. he schedule of shift

work shall be maintained- howeer the company may change thepreailing work time at its discretion" should such change be necessaryin the operations of the Company. ;ll employees shall obsere suchrules as hae been laid down by the company for the purpose ofeLecting control oer working hours.3 (;rticle Q of the C!;).

;ccording to the Supreme Court" it is eident from the foregoing proisionthat the working hours may be changed" at the discretion of the company " shouldsuch change be necessary for its operations" and that the employees shall obseresuch rules as hae been laid down by the company. n the instant case" the Iabor;rbiter found that respondent company had to adopt a continuous ?E$hour workdaily schedule by reason of the nature of its business and the demands of its

clients. t was established that the employees adhered to the said work schedulesince +FF. he employees are deemed to hae waied the eight$hour schedulesince they followed" without any %uestion or complaint" the two$shift schedule whiletheir C!; was still in force and een prior thereto. he two$shift schedule eLectielychanged the working hours stipulated in the C!;. ;s the employees assented bypractice to this arrangement" they cannot now be heard to claim that the oertimeboycott is 6usti*ed because they were not obliged to work beyond eight hours. ;sthe Iabor ;rbiter elucidated in his report:

2'espondentsY attempt to deny the e#istence of such regularoertime schedule is belied by their own awareness of the e#istence ofthe regular oertime schedule of B: ;.=. to B: 0.=. and B: 0.=. to

B: ;.=. of the following day that has been going on since +FF. 0roofof this is the case undisputedly *led by the union for and in behalf ofits members" wherein it is claimed that the company has not beencomputing correctly the night premium and oertime pay for workrendered between ?: ;.=. and B: ;.=. of the B: 0.=. to B: ;.=.shift. ### n fact" the union Qice$0resident Carmelo C. Santos"demanded that the company make a recomputation of the oertimerecords of the employees from +FG ###. . Iikewise" while in theoertime permits" dated =arch +" B" F" to +?" +@" which werepassed around daily for the employees to sign" his name appeared butwithout his signatures" he" howeer" had rendered oertime duringthose dates and was paid because unlike in other departments" it has

become a habit to them to sign the oertime schedule weekly ###.3

C. Ma "o&as b# #&%)#& o( a))o%(t o$ loss#s!

?es, in situations where the reduction in the number of regular working days isresorted to by the employer to preent serious losses due to causes beyond hiscontrol" such as when there is a substantial slump in the demand for his goods orserices or when there is lack of raw materials. his is more humane and in keeping


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34055, Geb. 52, 0@)

MEAL PERIO-: (Art. )

1G. What is 7#al 4#io&!

+. 9ery employee is entitled to not less than one (+) hour (or B minutes)time$oL for regular meals. !eing time$oL" it is not compensable hoursworked and employee is free to do anything he wants" e#cept to work. f heis re%uired to work while eating" he should be compensated therefor.

?. f meal time is shortened to not less than twenty (?) minutes $compensable hours worked. f shortened to less than ? minutes" it is

considered coLee break or rest period of short duration and" therefore"compensable.

NIDHT/SHIFT -IFFERENTIAL: (Art. 3)

11. What is (i*ht/shi$t &i


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S*eet /i%e I%., 505 SCRA 0@, 52@


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0age AA of +G 'eiew SMSMC . E%ri&e+, ;R /905, J&l" 5, 0326 Salatierra et al .D"%at" &$er Ci%erama, N/RC CN RO@99@0@91@, A&7&t 5, 01) see

p. 66 (preiously p. GG)

DRATITY AN- ALLOWANES:

5G OBP.What is a *at%it!

7ratuit%Pis a gift freely gien by the employer in appreciation of certainfaors or serices rendered. t is not part of wages since" strictly speaking" itis not intended as compensation for actual work. t is further not demandableas a matter of right.

51 OGP. A# allo"a()#s 4at o$ "a*#!

Allo"a()#s a# (ot 4at o$ "a*#s.herefore" in the computation of

the amount of retirement and other bene*ts" allowances shall not be includedtherein.

NOTE: ncentie 0ayis (ot 4at of basic wage(Re"e . N/RC, ;R 032544, A&7., 5221)

BONS:

52 OG+P.What is bo(%s! Is it a(&abl#!

7Bonus8is an amount granted and paid e' 7ratiato the employee forhis industry or loyalty" hence" generall% not de"andable or enorceable.f there is no pro*t" there should be no bonus. f pro*t is reduced" bonusshould likewise be reduced" absent any agreement making such bonus part ofthe compensation of the employees.

!y de*nition" a 7bonus8is a gratuity or act of liberality of the gier. tis something gien in addition to what is ordinarily receied by or strictly duethe recipient. ; bonus is granted and paid to an employee for his industryand loyalty which contributed to the success of the employerJs business andmade possible the realiation of pro*ts.12

; bonus is also granted by an enlightened employer to spur theemployee to greater eLorts for the success of the business and realiation ofbigger pro*ts.+@

53 OG?P. Wh#( is bo(%s a(&abl# a(& #($o)#abl#!

1n the basis of e%uitable considerations" long practice" agreement(e.g." C!;) and other peculiar circumstances" bonus may becomedemandable and enforceable. Co%e&e%tl", if bo%& i 7ie% a a%a##itio%al om$e%atio% *!i! t!e em$lo"er a7ree# to 7ie *it!o&t a%"o%#itio% &! a &e of b&i%e or more eie%t or more $ro#&tie

o$eratio%, it is deemed part of wage or salary" hence" demandable.(/e$a%to Cerami, I%. . /e$a%to Cerami Em$lo"ee Aoiatio%, ;.R.No. 0233, Mar! 5, 5202)

12 0rotacio . Iaya =ananghaya and Co."8.'.


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0age B@ of +G 'eiew RI/ 0@, 0) where the same issue is discussed and further0'9/9'9


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Th# a# )o(si#& #*%la #74lo##s of said establishments #9)#4twhen the night club operator does not control nor direct the details and manner of

their work in the entertainment of night club patrons and" ha'i(* (o 9#& ho%so$ "o6 th# 7a )o7# a(& *o as th# 4l#as#.

NOTE:

+. his @rdkind of 9'$99 relationship created by law is comprehensie. t doesnot only coer labor legislation but also social legislation like SSS" 0ag!8.

hus %uestion arises.

Q. &hat is the relationship between the Club4!ar owner and the hospitalitygirl

A.;ccording to the law" the relationship is of 9'$99 relationship. t iscomprehensie for all purposes of labor and social legislation.

Q. s the issue whether or nor 9'$99 relations a factual or legal issue

A. he SC held that it is %uestion of fact. !ut in Tabas #. Caliornia orBrot$er$ood #. Qa"ora" the SC made an assertion that 9'$99 relationsare a %uestion of law.

So6 "hi)h is "hi)h!.

A. his is how to reconcile. f it is a straight out and simple 9'$99 relationwhich does


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1 O+@?P. What a# th# #l#'a(t t#7s (#& i( th# la"!

(a) 7C$ild8refers to any person under +F years of age.(b) 7C$ild labor3 refers to any work or economic actiity performed by achild that sub6ects him4her to any form of e#ploitation or is harmful tohis4her health and safety or physical" mental or psychosocial deelopment.(c) 2or4ing C$ild8refers to any child engaged as follows:

i. when the child is below eighteen (+F) years of age" in work oreconomic actiity that is not child labor as de*ned in the immediatelypreceding sub$paragraph" andii.when the child below *fteen (+A) years of age" (i) in work wherehe4she is directly under the responsibility of his4her parents or legalguardian and where only members of the childJs family are employed-

or (ii)in public entertainment or information.

(d) 7>ours o &or48include (+) all time during which a child is re%uired tobe at a prescribed workplace" and (?) all time during which a child issuLered or permitted to work. 'est periods of short duration during workinghours shall be counted as hours worked.(e) 7or4place8refers to the o5ce" premises or worksite where a child istemporarily or habitually assigned. &here there is no *#ed or de*niteworkplace" the term shall include the place where the child actuallyperforms work to render serice or to take an assignment" to includehouseholds employing children.

(f) 7Public entertain"ent or inor"ation3 refers to artistic" literary" andcultural performances for teleision show" radio program" cinema or *lm"theater" commercial adertisement" public relations actiities orcampaigns" print materials" internet" and other media.(g) 7+orced labor and sla#er%8 refers to the e#traction of work orserices from any person by means of enticement" iolence" intimidation orthreat" use of force or coercion" including depriation of freedom" abuse ofauthority or moral ascendancy" debt bondage or deception.(h) 7C$ild pornograp$%8refers to any representation of a child engagedin real or simulated e#plicit se#ual actiities or any representation of these#ual parts of a child for primarily se#ual purposes.

2 O+@@P.What is th# 7i(i7%7 #74loabl# a*# o$ )hil(! (Art. 04)

Children below $t##( @15 #as o$ a*# shall not be employed e#cept:

(+) &hen a child works directly under the sole responsibility of his4her parentsor legal guardian and where only members of his4her family are employed:0roided" howeer" hat his4her employment neither endangers his4her life"safety" health" and morals" nor impairs his4her normal deelopment:0roided" further" hat the parent or legal guardian shall proide the saidchild with the prescribed primary and4or secondary education- or

(?) &here a childYs employment or participation in public entertainment or

information through cinema" theater" radio" teleision or other forms ofmedia is essential: 0roided" hat the employment contract is concludedby the childYs parents or legal guardian" with the e#press agreement of thechild concerned" if possible" and the approal of the Department of Iaborand 9mployment: 0roided" further" hat the following re%uirements in allinstances are strictly complied with:(a) he employer shall ensure the protection" health" safety" morals and

normal deelopment of the child-


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0age F? of +G 'eiew ) a# &is)%ss#& i( Pat III.

/ B%( o$ 4oo$ / O&i(a Mo(# )lai7s (e.g 70&" A$day SI0) is with the employer. 7nless" theemployer has adduced controerting eidence" inwhich case the burden of proof is shifted to theemployee.

/ E9ta/o&i(a 7o(# )lai7s(e.g." 1"


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=. What is )o(ta)ti(* o s%b)o(ta)ti(*!

o(ta)ti(* o s%b)o(ta)ti(* / t refers to an arrangement whereby aprincipal agrees to put out or farm out with a contractor or subcontractorthe performance or completion of a speci*c 6ob" work or serice within ade*nite or predetermined period" regardless of whether such 6ob" work or

serice is to be performed or completed within or outside the premises ofthe principal.

E74lo7#(t a(& i(#((t )o(ta)ti(*6 &isti(*%ish#&.

he ?A case of C$a#eF #s. NLC,O8. '.


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0age FF of +G 'eiew ay3 programs. ;!S$C!< did not assign any otherwork to Sona. o perform his work" Sona only needed his skills and talent. HowSona deliered his lines" appeared on teleision" and sounded on radio were

outside ;!S$C!


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Aoiatio%, I%. . N/RC, ;.R. No. 0250, 5 Ja%. 01, 531 SCRA @1).n this case"Sona failed to show that these rules controlled his performance. &e *nd that thesegeneral rules are merely guidelines towards the achieement of the mutuallydesired result" which are top$rating teleision and radio programs that comply withstandards of the industry.

he Qaughan case also held that one could still be an independent contractoralthough the hirer resered certain superision to insure the attainment of thedesired result. he hirer" howeer" must not deprie the one hired from performinghis serices according to his own initiatie.

Iastly" Sona insists that the 2e#clusiity clause3 in the ;greement is the

most e#treme form of control which ;!S$C!< e#ercised oer him.

his argument is futile. !eing an e#clusie talent does not by itself mean thatSona is an employee of ;!S$C!


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Documents

Notes on Philippine Labor Standards Laws 1 - Amended July 17, 2013