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FINDING ANSWERS TO LEGAL ISSUES AND LABOR CONCERNS Atty. Joseph Noel M. Estrada
DECLARATION OF POLICY
Article XIV, Section 2(1) of the 1987 Philippine Constitution The State shall establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;
SEC. 3. Basic Education. Basic education is intended to meet basic learning needs which provides the foundation on which subsequent learning can be based. It encompasses kindergarten, elementary and secondary education as well as alternative learning systems for out of-school learners and those with special needs.
Culled from Sec. 4(b) of REPUBLIC ACT NO. 9155, GOVERNANCE OF BASIC EDUCATION, ACT
Secondary Education- compulsory third stage; Junior HS and Senior HS; 14 and 16 year old entrants respectively
CHANGES INTRODUCED: Confirms the institutionalization of mandatory Kinder; Fixes Elementary education to 6 years; Basic Education now includes junior high school and senior high school; and Secondary education is made compulsory.
The State recognizes its primary legal obligation to provide a free elementary and secondary education under Art. XIV Sec. 2 of the Constitution. It is therefore compulsory for parents to keep their children in school as long as the government can provide free public schools, which now includes secondary education.
Revised Penal Code, Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents. The penalty of arresto mayor and a fine xxx shall be imposed upon the parents who shall neglect their children by not giving them the education which their station in life require and financial conditions permit.
NO TO MOTHER TONGUE!
Mother Language
Kinder and Grades 1-3 teaching materials shall be in native language Grades 4-6- DepEd shall introduce mother language transition program introducing Filipino and English.
Mother Language refers to the language/s first learned by the child, which he identifies with, used as a native language, knows best and uses most. Includes sign language of PWDs. Native Language- traditional speech variety in the region, area, or place.
K-12 Labor
Issues Affecting Private HEIs
2 Major Pains
1. Qualification of teachers 2. Retention and Displacement of affected faculty
SECTION 8. a.
DepEd and Private Education Institutions SHALL HIRE: Graduates of science, mathematics, statistics, engineering, music and other degree courses with shortages in qualified LET applicants Provided, That they pass the LET within five (5) years after their date of hiring, EXCEPT for PartTimers.
SECTION 8. b.
Graduates of technical-vocational courses to teach in their specialized subjects in the secondary education: Provided, That these graduates possess the necessary certification issued by TESDA: Provided further, That they undergo appropriate in service training to be administered by DepEd or PEI at the expense of DepEd;
SECTION 8. c.
Faculty of higher education institutions (HEIs) be allowed to teach in their general education or subject specialties in the secondary education: Provided, That the faculty must be a holder of a relevant Bachelors Degree and must have satisfactorily served as full-time HEI faculty.
Relevant Bachelors Degree No LET requirement Threshold tenure is up to the PEI No Masters Degree Requirement?!
Sec. 8. c.
DepEd and PEIs may hire expert practitioners to teach in Secondary education on a part-time basis only subject to standards to be adopted by DepEd and appropriate agencies.
2) FOR COLLEGES WITHOUT BASIC EDUCATION: OFFER STAND ALONE SHS; OR PARTNER WITH BASIC EDUCATION SCHOOLS TO OFFER SHS.
3) FOR BASIC EDUCATION SCHOOLS WITH COLLEGE: OFFER GRADES 11 AND 12 OR PARTNER WITH FEEDER SCHOOLS
PERSONNEL IMPLICATIONS
1. PEI HIRES NEW Teachers 2. PEI ABSORBS EXISTING Faculty WHO ARE QUALIFIED TO TEACH GEN.ED. OR SHS SUBJECTS
K-12-16!
Non-Renewal Of Contracts
5. Offer Redundancy or Retrenchment Programs 6. Sabbatical Leave 7. Apply Retirement Plan or Offer Early Retirement Package 8. Offer Voluntary Redundancy Program
LABOR CODE
ART. 100. PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS.
Diminution in Pay
Change of Assignment/Change in curriculum De-Loading of Full-time Faculty
Tests to Apply
Inherent Management Prerogative? Proprietary Right of the School? Vs. Entitlements enforceable/demandable obligation against the school?
RETRENCHMENT REDUNDANCY
VOLUNTARY REDUNDANCY
PROOF OF REDUNDANCY
Evidence must be presented to substantiate redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring (Panlilio vs. NLRC, 1997).
PROOF OF REDUNDANCY
It is the employers burden to show that redundancy exists. It is not enough for a company to merely declare that it has become overmanned. It must produce adequate proof of such redundancy to justify the dismissal of the affected employees (Asufrin vs. San Miguel Corporation, 2004).
JUDICIAL NOTICE
DOLE SHOULD TAKE JUDICIAL NOTICE OF THE CONSEQUENCES IN IMPLEMENTING K-12: ADDITIONAL 2 YEARS OF BASIC EDUCATION AND DISRUPTION OF YEARS IN HIGHER EDUCATION.
Dear DOLE,
Payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; Good faith in abolishing the redundant positions; and
Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. (See Caltex vs. NLRC, 2007, )
Separation Pay
Section 32 (B)(6)(b) of the Tax Code, as amended, provides that any amount received by an official or employee, or by his heirs, from the employer as a consequence of separation from service because of death, sickness or other physical disability or for any cause beyond the control of said official or employee, such as retrenchment, redundancy, or cessation of business is exempt from income tax and, consequently, from withholding tax.
The phrase "for any cause beyond the control of the said official or employee" connotes involuntariness on the part of the official or employee. Separation from the service of the official or employee must not be asked for or initiated by him. This means the separation was not of his own doing.
It is noted that the same treatment applies to benefits given to an employee who voluntarily resigns due to health reasons that have prevented him from returning to work. The Tax Code provides that amounts received by an employee due to sickness or physical disability are also exempt from income tax.
Dear BIR:
PLEASE EXEMPT FROM TAXES ANY SEPARATION PAY RECEIVED UNDER VOLUNTARY REDUNDANCY PROGRAM IN IMPLEMENTING K-12. Love, Faculty
Exodus of faculty to other industries or to public schools will likely cause many private HEIs to close.
LET IT BE KNOWN:
HEIs need to keep their qualified faculty because it would cost them more to lay them off.
Thank you!