Professional Documents
Culture Documents
Compilation
Based on the outline by: Atty. Jefferson Marquez
Updated as of: SY: 2012 - 2013
Table of Contents
TOPIC 1: THE APPLICABLE LAWS ........................................................................................................................................... 9
Law: PD 442 as amended by RA 6715 approved on March 21, 1989..............................................................................................................................9
CONCEPT OF LABOR .......................................................................................................................................................................................................9
FOUR SYSTEMS OF LABOR (Sla-Ser-Free-Wage; Slasher Free Wage; S-S-F-W ) ..............................................................................................................9
THREE FIELDS OF LABOR LAW (S-R-S) ...........................................................................................................................................................................10
OMNIBUS RULES AS AMENDED ....................................................................................................................................................................................11
SUPREME COURT DECISIONS........................................................................................................................................................................................11
BASIS OF ENACTING LABOR LAWS (P-S-P-D).................................................................................................................................................................11
LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O) .................................................................................................................................12
SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J) ...........................................................................................................................................13
SOURCES OF LABOR LAWS (LABOR RELATIONS) ...........................................................................................................................................................13
PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS .....................................................................................................................................................13
RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS................................................................................................................14
TRIPARTISM ..................................................................................................................................................................................................................14
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EMPLOYMENT OF DRIVERS AND CONDUCTORS IN THE PUBLIC UTILITY BUS TRANSPORT INDUSTRY........................................................................ 210
DOLE DO No. 118-12, Series of 2012 .................................................................................................................................................................................................. 210
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Article 1. This Decree shall be known as the Labor Code of the Philippines
o May 1, 1974 PD 442 was signed into law
o Took effect Nov. 1, 1974
Article 2. This Code shall take effect Six months after its promulgation
o RA 6715 Herrera-Veloso Law
o Sen. Blas Ople Father of Labor Code
Significance: Before the effectivity of the labor code, there was no provision on the terms and conditions of employment.
Significance of RA 6715:
Computation of Backwages after RA 6715 took effect, the award of backwages from the time compensation was withheld
up to the actual reinstatement; However, Facilities should not be included in the computation of backwages for the reason
that such are given free, to be used only for official tour of duty and not for personal use.
CONCEPT OF LABOR
Ordinary Sense: is understood as the physical toil although it does not necessarily exclude the application of skill, thus,
there is skilled and unskilled labor; work; service
General Sense: it is the exertion of human being by his mental or physical effort towards production of goods or services.
Technical Sense: the working class or workingmen
Skill the familiar knowledge of any art or science, united with readiness and dexterity in the execution or performance of the
application such art or science to practical purposes.
Work it is broader than labor; covers all forms of physical or mental exertion or both combined, for the attainment of some
object other than recreation or amusement per se.
Worker broader than employee; refer to self-employed people and those working in the service and under the control of
another, regardless of rank, title, or nature of work.
Employee a salaried person working for another who controls or supervises the means, manner, or method of doing the work
NOTE: It is the workers or the working class who exerts or labors.
Slavery
Refers to the extraction of work or services from any person by means of enticement, violence, intimidation or
threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt
bondage or deception. (DO 65-04 S2004)
The worker is owned by another at his free disposal
Prohibited in the Philippines
Section 18(2) of the Constitution: No involuntary servitude in any form shall exist except as a punishment for a
crime whereof the party shall have been duly convicted.
Article 272, Revised Penal Code: Slavery. The penalty of prision mayor and a fine of not exceeding 10,000
pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose
of enslaving him.
Section 4(a) of RA9208: Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical,
to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by
any means, including those done under the pretext of domestic or overseas employment or training or
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2.
Serfdom
Worker, by customary right to his Lord, owes certain service
Enforced labor of serfs on the fields of the landowners, in return for protection and the right to work on their
leased fields.
Prohibited in the Philippines
Article 274 of the RPC: Services rendered under compulsion in payment of debt. The penalty of arresto mayor
in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in
order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as
household servant or farm laborer.
Section 12-D, RA7610 as amended: No child shall be engaged in the worst forms of child labor. The phrase
"worst forms of child labor" shall refer to any of the following: (1) All forms of slavery, as defined under the
"Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children,
debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed
conflict;
3.
Free Artisan
A free person who offers his services to others subject to nobodys will
The same with modern independent contractorship wherein an independent contractor is engaged in a business
separately distinct from the principal, the performed job, work or service, and works according to his own means
and methods, free from the control and direction of the principal except as to the results thereof.
Governed by Article 1713 of the Civil Code
4.
Wage System
A person offers his services to another under an employment contract for which such service is paid by wages.
The same with modern employer-employee system where there is an employee under the control and
supervision of an employer as to the means, manner or method of which the work is to be accomplished including
the result thereof and is paid for the work done in terms of wage.
Covered by the Labor Code
NOTE: Only the Free Artisanship and Wage System of Labor are recognized in the Philippines.
Aim or justification: SOCIAL JUSTICE those who have less in life should have more in law.
Sets out the minimum terms, conditions, and benefits of employment that employers must provide or comply
with and to which workers are entitled as a matter of legal right;
The minimum requirements prescribed by existing laws, rules and regulations and other issuances relating to
wages, hours of work, cost of living allowances and other monetary and welfare benefits, including those set by
occupational safety and health hazards. (Section 7, Rule I, Rules on the Disposition of Labor Standards Cases
September 16, 1987)
Example: wages and hours of work, on safety and health of employees, employment benefits, overtime pay
2.
Defines the status, rights, duties, as well as the institutional mechanism that govern the individual and collective
interactions between employers, employees, and their representatives
Refers to the interactions between the employers and employees or their representatives and the mechanism by
which the employment standards are negotiated, adjusted and enforced.
Marquez: process the terms, benefits and conditions to improve the same through collective bargaining or
negotiation.
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Law governing the employer-employee relation while the latter is not at work due to the hazard arising from
employment.
Refers to a broader category of law that protects or promotes the welfare of society or segments of it in
furtherance of social justice.
Have the force and effect of laws. Provided, however, that these rules and issuances will not expand the law or strip the
law. Otherwise, under the rules on statutory construction, these will be considered void.
The DOLE is the lead agency in enforcing labor laws and it possesses rule-making power in the enforcement of the Code.
But a rule or regulation that exceeds the departments rule-making authority is void. The rule-making power is exceeded
when the implementing rule changes, wittingly or unwittingly, the content or meaning of the law which the rule aims to
implement. The implementing rule, on other words, must be subordinate to the law itself.
Example: Policy Instruction No. 54-88 (issued by former Sec. Franklin Drilon) has been declared void by the Supreme Court
because this has expanded Art. 83 of the Labor Code on Employment of Health Personnel by erroneously interpreting that
health employees are entitled to a full weekly wage for 7 days if they have completed the 40-hour/5-day workweek.
POLICE POWER
o Inherent power of the state to enact legislations that may interfere with personal liberty or property in order to
promote the general welfare of the people (General Welfare Clause)
o Consists of imposition of restraint upon liberty or property and in order to foster the common good.
o General welfare clause deemed written into the employment contract.
o Power to regulate personal liberty or property rights.
o Labor Code contains several provisions that affect life and property.
NOTE: Having a job is a property right
Example:
Article 263 LC: (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable
to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same
to the Commission for compulsory arbitration
Reason: SOLE may compel the employer to admit the employees and the employees to return to their work.
2.
SOCIAL JUSTICE
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o
o
o
o
The promotion of the welfare of all the people, the adoption by the government of measures calculated to insure
economic stability of all the component elements of society through the maintenance of proper economic and social
equilibrium in the interrelation of the members of the community, constitutionally through the adoption of measures
legally justifiable, or extra-constitutionally through the exercise of powers, underlying the exercise of all governments
on the time honored principle of salus populi est suprema lex. (Dr. Jose P. Laurel)
The law is geared towards the concern of labor because our legislators realize that social and economic imbalance
between the employer and employee.
Philippines is a signatory of ILO Convention (International Labor Organization)
UN Declaration of Human Rights
All doubts in the implementation and interpretation of the provisions of this Code, including its
implementing rules and regulations shall be resolved in favor of labor
Examples: Migrant workers act, retirement law, Art. Xix, sec. 19
3.
4.
DOCTRINE OF INCORPORATION
Article II, Section 2, Constitution: The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
Cite at least 5 International Labor Organization (ILO) Conventions:
1. C87 Freedom of Association and Protection of the Right to Organize to Convention (1948)
2. C99 Minimum Wage Fixing Machinery Convention (1951)
3. C105 Abolition of Forced Labor Convention (1957)
4. C17 Workmens Compensation (1925)
5. C149 Tripartite Consultation Convention (1976)
Congress could not pass laws which would impair the obligations of the parties, however, the same can pass laws to
regulate the obligations and contracts.
May be impaired by the exercise of the state of police power.
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SECONDARY (D-R-O-R)
a) Decisions of foreign courts (where our labor statutes are based or patterned after statutes in foreign jurisdictions, decisions
in the high courts in those jurisdictions construing and interpreting should receive the careful attention of our courts in the
application of our laws)
b) Reviewers in labor laws/ textbooks
c) Opinions of labor department or agencies
d) Rules and regulations issued by DOLE ( department orders)
NOTE:
Labor laws do not only include PD 442 as amended but as well as decisions of the SC interpreting and applying the laws.
Included as well are rules and regulations issued by the appropriate government agencies (e.g. DOLE)
Publication is indispensable. Rules and regulations are still valid even if no publication, however, it is unenforceable.
A2NCC: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines, unless it is otherwise provided. (As amended by EO 200).
E.O. 292 Administrative Code of the Philippines
Sec. 18. When Laws Take Effect. - Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette
or in a newspaper of general circulation, unless it is otherwise provided.
Sec. 19. Prospectivity. - Laws shall have prospective effect unless the contrary is expressly provided.
Sec. 20. Interpretation of Laws and Administrative Issuances. - In the interpretation of a law or administrative issuance promulgated in all the
official languages, the English text shall control, unless otherwise specifically provided. In case of ambiguity, omission or mistake, the other texts
may be consulted.
Sec. 21. No Implied Revival of Repealed Law.- When a law which expressly repeals a prior law itself repealed, the law first repealed shall not be
thereby revived unless expressly so provided.
Sec. 22. Revival of Law Impliedly Repealed. - When a law which impliedly repeals a prior law is itself repealed, the prior law shall thereby be
revived, unless the repealing law provides otherwise.
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Will not apply unless the people are informed through the required publication
Reasons: Employer stands in a higher footing than the employees and the State affirms labor as the primary social
economic force.
The policy is to apply the code to a greater number of employees to enable them to avail of the benefits
under the law, in line with the States desire to give maximum aid and protection to labor.
It is not always correct to think that the aim of the law is always to favor labor. The mandate under Art 4 is
simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the
law, labor will enjoy no built-in advantage and the law will have to be applied as it is.
The law in protecting the rights of the laborer, authorizes neither oppression nor self destruction of the
employer.
Court decisions adopt a liberal approach that favors the exercise of labor rights.
Article 1700,NCC. The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor
contracts must yield to the common good. Therefore, such contracts are subject to the special Lawson labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working conditions, hours of labor, and similar subjects.
Labor disputes also affect the state and the public at large if employees are engaged in strike or other concerted
activities.
PARTIES TO EMPLOYMENT CONTRACT
1. Employer
2. Employee
3. State
4. Public
Article 1701, NCC. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.
(PRINCIPLE OF NON-OPPRESSION)
Article 1702, NCC. In case of doubt, all labor legislations and all labor contracts shall be construed in favor of the safety and decent living of
the laborer.
TRIPARTISM
Tripartism refers to the representation of workers and employers sectors in decision and policy making bodies of the
government. Through tripartism, workers and employers on the one hand, representing their respective interests, and the
government on the other hand, representing the interest of the public, help shape labor, social and economic policies and
programs of the government.
Tripartism is in place in government agencies like the the National Labor Relations Commission (NLRC), Employees
Compensation Commission (ECC), National Wages and Productivity Commission (NWPC), Technical Education and Skill
Development Authority (TESDA), Social Security System (SSS), Government Service Insurance System (GSIS), Philippine
Overseas Employment Administration (POEA), Overseas Workers Welfare Administration (OWWA) and Pag-ibig Home
Development Funds (Pag-ibig).
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Reason: Relations between capital and labor are not merely contractual. They are so impressed with public interest that
representations from employer and employee in decision and policy-making bodies of the government are necessary. This is
also in affirmation of the role of the State as the guardian of the peoples rights and the constitutional provision on protection to
labor.
Examples:
Creation of Regional Tripartite Wages and Productivity Board (RTWPB) which is composed of government, employer
and employee representatives.
Composition of NLRC, chairman is government appointed, remaining 2 commissioners from employer and employee
sectors.
Such kind of representation is not ordained, not even by the Constitution. What is provided for, for the private sector is
workers participation in policy and decision-making processes directly affecting their rights, benefits, and welfare.
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13 month pay
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1/12 of the total basic salary earned within the calendar year
Payment of wages
Shall be paid in cash, legal tender, at or near the place of work
May be made through a bank upon written petition of majority of the workers in establishments with 25 or more
employees and within one kilometer radius to a bank
Shall be made direct to the employees
Shall be given not less than once every 2 weeks or twice within a month at intervals not exceeding 16 days
Labor-only contracting is prohibited and the person acting as contractor is merely an agent of the employer
Preference of workers money claims over government and other creditors in case of bankruptcy or liquidation of
business
Safe and healthful conditions of work and welfare services
Proper illumination and ventilation, fire exits and extinguishers, occupational health personnel services, family welfare
or family planning services at the workplace)
Employment of Young Workers
Minimum employable age is 15 age
A worker below 15 should be directly under the sole responsibility of parents or guardians; work does not interfere
with childs schooling and normal development
No person below eighteen can be employed in hazardous or deleterious undertaking
Employment of Women
Nightwork prohibition unless allowed by the rules:
o Industrial undertaking from 10 pm to 6 am
o Commercial from 12 mn to 6 am
o Agricultural at nighttime unless given not less than 9 consecutive hours of rest
Welfare facilities must be provided in the workplace
Prohibition against discrimination with respect to pay, promotion, training opportunities, study, and scholarship grants
Self-organization and collective bargaining
Employees can form organizations such as union and welfare committees
An employee can join a union on the very first day of his employment
Collective Bargaining a contract between workers and employers on terms and conditions of employment which are
OVER and ABOVE those mandated by law
Labor education through seminars, dialogues, and information, education and communication materials
Peaceful concerted activities in accordance with law
Participation an policy and decision-making processes affecting their rights and benefits
Free access to the courts and quasi-judicial bodies and speedy disposition of their cases
ECC benefits for work-related contingencies
medical benefits for sickness and injuries
disability benefits
rehabilitation
death and funeral
SSS Benefits
maternity
sickness
disability
retirement
death
overtime pay
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premium pay
Protective Labor Standard - Intended to protect harsh and oppressive conditions of work that inimical to health, safety and wellbeing of the workers.
Protect the health and safety and the well-being of the workers.
3.
4.
5.
6.
Employment Contract employer hires an employee and gives a high salary, in effect the former provides the latter a labor
standard plus car, allowances and other benefits.
Company Policies and Practices as a company policy, provision of sack of rice, it is meliorative. Practices could be
unwritten, deliberately granted by employer for a long period of time, although it is not a policy but consistently and
deliberately provided to workers such as vacation with pay.
Administrative Order of DOLE - Also prescribes the terms and conditions of employment.
COMMENTS:
EMPLOYER
May be NATURAL OR JURIDICAL, a single proprietorship, a partnership or a corporation.
The Government is an employer within the meaning of the Labor Code in Labor Standards.
So, a government agency with an original charter contracts with a security agency to supply security guards, and this security
agency is unable to pay the wages of its guards.
Q: Is principal government agency considered jointly and severally liable with the security agency? Will Article 106-109, LC apply
to them? Can the guards file with the labor complaint with the nearest arbitration branch of the NLRC and sue both the security
and government agency?
A: YES, the Labor Code will govern. The government agency cannot move for the dismissal of the complaint for lack of
jurisdiction on the part of the Labor Arbiter and say that they are governed by the Civil Service Law Rules and Regulations. The
government agency contracted the services of an independent contractor, so they are considered principals. Therefore the LC
will govern regarding the monetary claims of the security guards.
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Of those corporations owned by foreigners, if they want to employ alien as their employees, the
following requirements must be complied with:
1. Such domestic or foreign companies should obtain a permit form the DOLE ( Alien Employment Permit) at
the nearest regional office
2. There must be a determination of the non- availability of a person in the Philippines, who is competent, able,
willing at the time of application to perform the services for which the alien is desired.
FOUR-FOLD TEST
1.
2.
3.
4.
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Governing
Laws
Labor laws
obligations
and
Contracts
[CC]
Civil Code
Tribunal
Labor
tribunal
Regular
courts
Regular
courts
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Note: Unlike employee, independent contractor does not solely depend on the company for continued work as they can pursue
other jobs.
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Contractor may be Individual, Corporate Juridical Entity no need of protection from labor code because they
earn better.
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MANAGEMENT PREROGATIVE
It is an act of the employer according to his own judgment or discretion to regulate his business. This includes hiring, transfer,
dismissal, etc.
SMC v. Ople
Except as limited by Special Laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of
employment, including hiring, work assignments, working methods, time, place and manner or work, tools to be used, processes
to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the
discipline, dismissal and recall of workers.(ONE RIGHT OF AN EMPLOYER)
LIMITATIONS ON MANAGEMENT PREROGATIVE
Law
Contract or CBA
Principles of fair play and justice
RIGHTS OF MANAGEMENT
Right to ROI
Right to prescribe rules
Right to select employees
Transfer or discharge of employees
Special Laws
Contract
Basic principles of equity and fair play
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3.
Sec. 12. Employment of Children. Children below fifteen (15) years of age shall not be employed except:
(1)
When a child works directly under the sole responsibility of his parents or legal guardian and where only members of
the employer's family are employed: Provided, however, That his employment neither endangers his life, safety,
health and morals, nor impairs his normal development; Provided, further, That the parent or legal guardian shall
provide the said minor child with the prescribed primary and/or secondary education; or
(2)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio
or television is essential: Provided, The employment contract is concluded by the child's parents or legal guardian,
with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and
Employment: and Provided, That the following requirements in all instances are strictly complied with:
(a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into
account the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skills acquisition of the child.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above
requirements.
The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective
implementation of this Section.
REPUBLIC ACT NO. 9231: THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING
STRONGER PROTECTION FOR THE WORKING CHILD
Sec. 12. Employment of Children. Children below fifteen (15) years of age shall not be employed except:
1)
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of
his/her family are employed: provided, however, that his/her employment neither endangers his/her life, safety, health,
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Where a child's employment or participation in public entertainment or information through cinema, theater, radio,
television or other forms of media is essential: provided, that the employment contract is concluded by the child's parents
or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of
Labor and Employment: provided, further, that the following requirements in all instances are strictly complied with:
(a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into account
the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such
child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.
For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
Sec. 12-A. Hours of Work of a Working Child. Under the exceptions provided in Sec. 12 of this Act, as amended:
(1)
A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: provided,
that the work shall not be more than four (4) hours at any given day;
(2)
A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day,
and in no case beyond forty (40) hours a week;
(3)
No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in
the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work
between ten o'clock in the evening and six o'clock in the morning of the following day.
Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income. The wages, salaries, earnings and other
income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education
or skills acquisition and secondarily to the collective needs of the family: provided, that not more than twenty percent (20%) of
the child's income may be used for the collective needs of the family.
The income of the working child and/or the property acquired through the work of the child shall be administered by both
parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents
are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income. The parent or legal guardian of a working child below
eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the earnings of the child whose wages and
salaries from work and other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she
shall render a semi-annual accounting of the fund to the Department of Labor and Employment, in compliance with the
provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority.
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. No child shall be engaged in the worst forms of child labor. The
phrase "worst forms of child labor" shall refer to any of the following:
(1)
All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed conflict; or
(2)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for
pornographic performances; or
(3)
The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited under existing laws; or
(4)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to
the health, safety or morals of children, such that it:
(a)
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
(b)
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful
psychologically or may prejudice morals; or
(c)
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Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive
power-actuated tools; or
(e)
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing,
physical strength or contortion, or which requires the manual transport of heavy loads; or
(f)
(g)
(h)
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
(i)
Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. No child shall be employed as a model in any
advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or
any form of violence or pornography.
RULES AND REGULATIONS IMPLEMENTING RA 9231, AMENDING R.A. 7610, AS AMENDED (DO NO. 65-04,
SERIES OF 2004)
(b)
Child labor refers to any work or economic activity performed by a child that subjects him/her to any form of
exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
(c)
when the child is below eighteen (18) years of age, in work or economic activity that is not child
labor as defined in the immediately preceding sub-paragraph, and
ii.
when the child below fifteen (15) years of age, (i) in work where he/she is directly under the
responsibility of his/her parents or legal guardian and where only members of the childs family are
employed; or (ii)in public entertainment or information.
xxxxxx
(g)
Employer refers to any person, whether natural or juridical who, whether for valuable consideration or not,
directly or indirectly procures, uses, avails itself of, contracts out or otherwise derives benefit from the work or
services of a child in any occupation, undertaking, project or activity, whether for profit or not. It includes any
person acting in the interest of the employer.
xxxxxx
(j)
Work permit refers to the permit secured by the employer, parent or guardian from the Department for any
child below 15 years of age in any work allowed under Republic Act No. 9231.
(k)
Hours of work include (1) all time during which a child is required to be at a prescribed workplace, and (2) all
time during which a child is suffered or permitted to work. Rest periods of short duration during working hours
shall be counted as hours worked.
(l)
Workplace refers to the office, premises or worksite where a child is temporarily or habitually assigned.
Where there is no fixed or definite workplace, the term shall include the place where the child actually
performs work to render service or to take an assignment, to include households employing children.
(m) Public entertainment or information refers to artistic, literary, and cultural performances for television show,
radio program, cinema or film, theater, commercial advertisement, public relations activities or campaigns,
print materials, internet, and other media.
(q)
Forced labor and slavery refers to the extraction of work or services from any person by means of
enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse
of authority or moral ascendancy, debt bondage or deception.
(r)
Child pornography refers to any representation of a child engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a child for primarily sexual purposes.
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All forms of slavery, as defined under the Anti-trafficking in Persons Act of 2003, or practices similar to slavery such as
sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment children
for use in armed conflict.
(b)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic
performances;
(c)
The use, procuring or offering of a child for illegal or illicit activities, including the production or trafficking of dangerous
drugs or volatile substances prohibited under existing laws; or
(d)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health,
safety or morals of children, such that it:
i.
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
ii.
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or
may prejudice morals; or
iii.
iv.
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
v.
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual transport of heavy loads; or
vi.
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures, noise levels or vibrations; or
vii.
viii.
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoa, nematodes and other parasites;
or
ix.
SECTION 6. Prohibition on the Employment of Children in Certain Advertisements No child below 18 years of age shall be
employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and
its byproducts, gambling or any form of violence or pornography.
Chapter 3 Exceptions to the Prohibition
SECTION 7. Exceptions and Conditions The following shall be the only exceptions to the prohibition on the employment of a
child below 15 year of age:
(a)
When the child works under the sole responsibility of his/her parents or guardian, provided that only members of the
childs family are employed.
(b)
When the childs employment or participation in public entertainment or information is essential, regardless of the extent
of the childs role.
The total number of hours worked shall be in accordance with Section 15 of these Rules;
ii.
The employment does not endanger the childs life, safety, health and morals, nor impair the childs normal
development;
iii.
The child is provided with at least the mandatory elementary or secondary education; and
iv.
The employer secures a work permit for the child in accordance with Section 8-12 of these Rules.
Chapter 4 Requirements to Avail of Exception To Employment Prohibition
SECTION 8. Work Permit Except as provided is Section 13, no child below 15 years of age shall be allowed to commence work
without a work permit. An employer must first secure a work permit from the Regional Office of the Department having
jurisdiction over the workplace of the child. In cases where the work is done in more than one workplace falling under the
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If there is fraud or misrepresentation in the application for work permit or any of its supporting documents;
(b)
If the terms and conditions set forth in the childs employment contract and/or employers undertaking have been
violated;
(c)
If the employer fails to institute measures to ensure the protection, health, safety, morals, and normal development of the
child as required in Section 7 (b) ii;
(d)
If the employer fails to formulate and implement a program for the education, training and skills acquisition of the child; or
(e)
If a child has been deprived access to formal, non-formal or alternative learning systems of education.
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued
employment of said individual, or in granting said individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or
classifying the employee which in a way would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;
(2)
The above acts would impair the employees rights or privileges under existing labor laws; or
(3)
The above acts would result in an intimidating, hostile, or offensive environment for the employee.
Sec. 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:
(a)
To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext
of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt bondage;
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To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for
under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying,
offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing,
physical strength, or contortion;
Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a
similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children
or descendants;
Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any
descendant of his under twelve years of age in such dangerous exhibitions;
Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of
age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2
hereof, or to any habitual vagrant or beggar.
If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in
every case be imposed in its maximum period.
In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the
case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of
their parental authority.
Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians,
curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to
accompany any habitual vagrant or beggar.
DEPARTMENT ORDERS
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Sec 3. Criteria for Classifying Hazardous Establishments or Workplaces. An establishment or workplace may be classified as hazardous if any of
the conditions provided under Rule 1013 of the OSHS has been confirmed, as follows:
a)
Where the nature of the work exposes the workers to dangerous environment elements, contaminants or work conditions
including ionizing radiations, chemicals, fire, flammable substances, noxious components and the like;
b)
Where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work,
deep sea fishing and mechanized farming;
c)
Where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products;
d)
Where the workers use or are exposed to power-driven or explosive powder actuated tools; and
e)
Where the workers are exposed to biologic agents like bacteria and fungi, viruses, protozoa, nematodes and other parasites.
Industrial plants or factories, commercial establishments, or institutional buildings having a connected kVA load of
any size and employing voltages of any standard rating one (1) professional electrical engineer or one
(1) registered electrical engineer. However, for connected loads up to five hundred kilovolt amperes (500 kVA) and
employing voltages up to six hundred volts (600 V) one (1) registered master electrician;
100 kw or over but not more than 300 kw: one (1) certified plant mechanic, or more mechanical engineer or one (1)
professional mechanic engineer: Provided, That every mechanical work, project, or plant in this category operating in
more than one shift every twenty-four hours, shall have in addition to the minimum personnel herein required, one (1)
certified plant mechanical, or one (1) mechanical engineer, or one (1) professional mechanical engineer in-charge of each
and every additional shift.
(b)
300 kw or over, but not more than 2000 kw: one (1) mechanical engineer or one (1) professional mechanical engineer or
one (1) professional mechanical engineer: Provided, That every mechanical work, project, or plant in this category
operating in more than one shift every twenty-four (24) hours shall have, in addition to the minimum personnel herein
required at least one (1) mechanical engineer, or one (1) professional mechanical engineer in-charge of each and every
additional shift.
(c)
Over 2000 kw: one (1) professional mechanical engineer: Provided, That every mechanical work, project or plant in this
category operating in more than one shift every twenty-four (24) hours shall have, in addition to the minimum personnel
herein required at least one (1) professional mechanical engineer in-charge of each and every additional shift.
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Q: Is there an instance outside labor law when wage and salary is distinguished?
A: Yes. In Article 1708 of the Civil Code where wage and salary are distinguished with regards to execution and attachment.
PRINCIPLES
FAIR DAYS WAGE FOR A FAIR DAYS LABOR
A fair days wage for a fair days labor continues to govern the relation between labor and capital and remains a basic factor in
determining employees wages.
PAL vs. NLRC
GR 55159 June 22, 1989
If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to
work but was prevented by management or was illegally locked out, suspended or dismissed. Where the employees dismissal
was for a just cause, it would neither be fair nor just to allow the employee to recover something he has not earned and could
not have earned.
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The provision on deductible facilities must be voluntarily accepted by the employee in writing.
More significantly, the food and lodging, or the electricity and water consumed by the petitioner were not facilities but
supplements. A benefit or privilege granted to an employee for the convenience of the employer is not facility. The criterion in
making a distinction between the two not so much lies in the kind (food, lodging) but the purpose. Considering therefore that
hotel workers are required to work different shifts and are expected to be available at various odd hours, their ready availability
is a necessary matter in the operations of a small hotel, such as the private respondents hotel.
If the requisites are all present, that facilities may take the place of the cash payment of the employees wage. This is
one exception of the requirement that an employees wage shall be paid in legal tender, you cannot pay it in kind.
Art 97f provides that wage includes the fair and reasonable value, as determined by the Secretary of Labor, of board,
lodging, or other facilities customarily furnished by the employer to the employee.
This means that an employer may provide, for instance, food and housing to his employees but he may deduct their values from
the employees wages.
STEPS TO DETERMINE IF A FACILITY OR NOT:
SUPPLEMENTS; defined
Atok-Big Wedge Assn v. Atok-Big Wedge Co.
97 phil 294
SUPPLEMENTS constitute extra remuneration or special privileges or benefits given to or received by the laborers over and
above their ordinary earnings or wages.
Facilities are items of expense necessary for the laborers and his familys existence and subsistence.
Requisites:
1. Must be customarily furnished by the employer to the employees
Customary is founded on long-established and constant practice connoting regularity.
2. Must be charged at a fair and reasonable value
3. The provision on deductible facilities must be voluntarily accepted by the employee in writing. (Mabeza vs. NLRC)
Facilities (Section 5, Rule VII, Book III)- articles or services for the benefit of the employee or his family but shall not
include tools of the trade or articles or services primarily for the benefit of the employer or necessary to the conduct of
the employers business.
Supplement Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above
their ordinary earnings or wages.
The classification of an item of expense as a facility or a supplement will depends on the purpose and not on the kind. So, if it is
principally or mainly for the benefit of the employee, classify as facilities, and the fair and reasonable value of that can be
considered as deductible from the employees wage. An employer can validly pay the employee in the form of cash or in kind.
And that kind refers to facilities.
If the requisites are all present, that facilities may take the place of the cash payment of the employees wage. This is one
exception to the requirement that an employees wage shall be paid in legal tender; you cannot pay it in kind.
If it classifies under facilities, it shall include the fair and reasonable value of board, lodging, etc. as long as it is mainly and
principally for the benefit of the employee.
FACILITIES VS. SUPPLEMENTS
Facilities are wage-deductible, supplements are not.
The classification of an item of expense as a facility or a supplement will depend on the purpose and not on the kind.
So if it is principally or mainly for the benefit of the employee, classify as facilities, and the fair and reasonable value of
that can be considered as deductible from the employees wage.
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FACILITIES
Items of expense necessary for the laborers and his
familys existence and subsistence.
SUPPLEMENTS
Constitute extra remuneration or privileges or benefits
given to or received by the labors over and above their
ordinary earnings wages.
WORKERS LIEN
Art 1707 CC: The laborers wages shall be a lien on the goods manufactured or the work done.
Reason: By virtue of this new lien, the laborers who are not paid by an unscrupulous and irresponsible industrialist or manager
may by legal means have the goods manufactured thru the sweat of their brow sold, and out of the proceeds get their salary,
returning the excess, if any [Report Code Commission, p.14]
Goods Manufactured or the work done
Refers to personal property, not real property. And even here, the lien is allowed the laborer only if he was
directly employed or engaged by the owner. The rule does not apply if contractor, with men under him, had
undertaken the job.
Art 1709 CC: The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
No seizure or retention by the employer
NOTE: Articles 1707 and 1708 of the Civil Code distinguish wage from salary
METHODS OF FIXING COMPENSATION
A.
B.
C.
D.
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There are certain laws which exclude certain employees from enjoying certain benefits depending on the methods of
fixing their compensation.
Ex. 13th mo. Pay which excludes job or task basis and purely on commission employees, under Art 82, workers paid by
results are exempted from overtime pay, service incentive leave, etc. (conditions of employment).
WAGE; defined
Art 97(f)
WAGE paid to employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which
is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or
for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of
board, lodging, or other facilities customarily furnished by the employer to the employee.
A.
TIME SPENT
Once the agreed period of work is completed, the compensation is earned and becomes due regardless of result. The
standard forms of compensation based on time spent are salaries or wages by the day, week, or monthly.
Daily-paid
Monthly-paid
DAILY-PAID EMPLOYEES
Those employees who are paid on the days actually worked except unworked regular holidays when they are paid
their basic wage if they are present or a leave with pay on the working day preceding the regular holiday.
No work no pay
Advantage: Flexibility in the reduction of work force fro any given period according to circumstances such as slack
in demand, non-availability of materials, etc.
Compressed workweek
Reduce working days
Temporary suspension of operations of not more than 6 months (no work no pay)
MONTHLY-PAID EMPLOYEES
B.
C.
A flat or fixed sum for each particular job or task completed, without regard to the number f hours actually spent in
the performance or completion.
D.
Paid everyday of the month including unworked rest days, special days and regular holidays. It is the standard
compensation rate for managerial personnel, professionals, administrative employees and other white collar
workers, including clerical employees and higher grade skilled workers.
ADVANTAGE: relative economy in recordkeeping, and higher morale of employees resulting from association of
this method with tenure and permanency.
COMMISSION
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TAKE NOTE: Workers shall be paid the minimum wage even if paid on job or piece rate basis.
FIXING EMPLOYEES WAGE
a.
b.
wage increase
resolving wage distortion
RA 6727
WAGE RATIONALIZATION ACT
IMPORTANCE: this law which amended the labor code will tell us the different government agencies involved in the fixing of
wages and also how to resolve wage distortion(procedure in case wage distortion results in fixing wage)
PURPOSE: was intended to rationalize the fixing wages;
FIRST, by providing for full-time boards to police wages round-the-clock.
SECOND, by giving the boards enough powers to achieve this objective.
POLICIES OF THE STATE
1.
It has been rationalized because article 124 of this RA provides for the standards and criteria that should guide the
agency of government when it comes to fixing the minimum wage. It is noted that under the standard criteria, that
the congress has tried to weigh the factors involving the employers, as well as the factors involving the laborers when
it comes to fixing of employees wage in order to rationalize it.
Before RA 6727, it was only Malacaang through a PD that dictates how much should be the minimum wage in
the Philippines. Most often than not, those employers in the far-flung areas are adversely affected because the fixing
of minimum wage is not rationalized. It does not take into consideration, for example, the capitalization of the
employer, the profit expected, the cost of living in a particular area.
With the advent of RA 6727, the law deems it necessary that there shall be standard criteria in fixing the employees wage.
Standards or Criteria for Minimum Wage Fixing
Art 124 RA 6727
a. The demand for living wages;
b. Wage adjustment vis--vis the consumer price index;
c. The cost of living and changes or increases therein;
d. The needs of workers and their families
e. The need to induce industries to invest in the countryside;
f. Improvements in standards of living
g. The prevailing wage levels;
h. Fair return of the capital invested and capacity to pay of employers;
i. Effects on employment generation and family income; and
j. The equitable distribution of income and wealth along the imperatives of economic and social development.
2. TO PROMOTE PRODUCTIVITY-IMPROVEMENT AND GAIN-SHARING MEASURES TO ENSURE A DECENT STANDARD OF
LIVING FOR THE WORKERS AND THEIR FAMILY.
3. TO GUARANTEE THE RIGHTS OF LABOR TO ITS JUST SHARE IN THE FRUITS OF PRODUCTION
4.
5.
TO ALLOW BUSINESS AND INDUSTRY REASONABLE RETURNS ON INVESTMENT, EXPANSION AND GROWTH.
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This is an important policy because it promotes collective bargaining as a mode of settling labor disputes
Determines the offices/headquarters of the respective Regional Tripartite Wages and Productivity Boards.
Art 121C (As amended by Republic Act No. 6727, June 9, 1989) grants the NWPC the power to prescribe rules and
guidelines for the determination of appropriate wages in the country.
Note: Guidelines issued by the RTWPB without the approval of, or worse, contrary to those promulgated by the NWPC are
ineffectual, void and cannot be the source of rights and privileges.
Composition:
Art 121 LC (As amended by Republic Act No. 6727, June 9, 1989).
1. Ex-Officio Chairman
Secretary of DOLE
2. Ex-Officio Vice-Chairman
Director-General of NEDA
3. Two (2) members each from Worker and Employer sectors
Shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE to be made on the
basis of the list of nominees submitted by the workers and employers sectors, respectively.
4. The Executive Director shall also be a member of the Commission
Secretariat [headed by Executive Director]
Executive Director
Shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE
2 Deputy Directors
shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE
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The SC is of the opinion that Congress meant the boards to be creative in resolving the annual question of wages without labor
and management knocking on the legislatures door at every turn. The Courts opinion is that if RA 6727 intended the board
alone to set floor wages, the Act would have no need for a board but an accountant to keep track of the latest consumer price
index, or better would have Congress done it as the need arises, as the legislature, prior to the Act has done so for years.
Metropolitan Bank and Trust Company, Inc. vs. NWPC and RTWPB- Region II
G.R. No. 144322, 02/26/07
In line with RA No. 6727s policy, NWPC was created to prescribe rules and guidelines for the determination of appropriate
minimum wage and productivity measures at the regional, provincial or industry levels. It authorized RTWPB to determine and
fix the minimum wage rates in their respective regions, provinces or industries therein and issue the corresponding wage
orders, subject to the guidelines issued by the NWPC. Pursuant to its wage- fixing authority, the RTWPB may issue wage orders
which set the daily minimum wage rates based on the standards or criteria set by Art. 124 of the Labor Code.
Composition
Art 122 LC (As amended by Republic Act No. 6727, June 9, 1989).
1. Chairman
Regional Director of DOLE
2. Vice-Chairmen
Regional Director of NEDA
Regional Director of DTI
3. Two (2) members each from workers and employers sectors
Shall be appointed by the President of the Phil, upon the recommendation of the Secretary of DOLE, to be
made on the basis of the list of nominees submitted by the workers and employers sectors, respectively.
4. Each Regional Board to be headed by its Chairman shall be assisted by a Secretariat
RULE II
MINIMUM WAGE FIXING
Section 2. Standards/Criteria for Minimum Wage Fixing. The minimum wage rates to be established by the Board shall be as nearly
adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general wellbeing of the workers within the framework of national economic and social development goals. In the determination of regional minimum
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(b)
If employed in an establishment, the employee cannot go to court and file a petition for a wage increase because the employee is not considered a
proper party. It must be an employer or a legitimate labor organization.
BOARD
2.
Wage Order if granted, maybe issued by the Board pursuant to its rule-making power and takes effect 15 days after publication.
Board Action.
If the petition conforms with the requirements prescribed in the preceding sub-section b.1., the Board shall conduct public hearings
in the manner prescribed under this Rule and Rule III, to determine whether a wage order should be issued. The Board may also
conduct consultations with concerned sectors/industries.
3.
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Opposition.
Any party may file his opposition to the petition on or before the initial hearing, copy furnished the petitioner/s. The opposition shall
be filed with the appropriate Board in ten (10) typewritten legible copies which shall contain the following:
5.
(a)
(b)
(c)
relief sought.
Consolidation of Petitions.
If there is more than one petition filed, the Board may, motu propio or on motion of any party, consolidate these for purposes of
conducting joint hearings or proceedings to expedite resolutions of petitions. Petitions received after publication of an earlier petition
need not go through the publication/posting requirement.
6.
CONDUCT OF HEARINGS
Section 4. Manner and Duration of Hearings. Public hearings shall be conducted in a manner that shall ensure that all sectors and parties who stand
to be directly affected by the decisions and orders of the Board are given the widest opportunity to be heard. Pursuant to this, the hearings shall be
conducted in each province in the region as far as practicable.
Hearings shall be conducted within forty five (45) days from the date of initial hearing except when conditions in the region warrant otherwise.
Section 6. Non-applicability of Technical Rules. The Board shall not be bound strictly by technical rules evidence and procedures.
Section 7. Prohibition Against Injunction. No preliminary or permanent injunction or temporary restraining order may be issued by any court,
tribunal or any other entity against any proceeding before the Commission or Board.
WAGE ORDER
Section 1. Issuance of Wage Order. Within thirty (30) days after conclusion of the last hearing, the Board shall decide on the merits of the petition,
and where appropriate, issue a wage order establishing the regional minimum wage rates to be paid by employers which shall in no case be lower
than the applicable statutory minimum wage rates. The Wage Order may include wages by industry, province or locality as may be deemed necessary
by the Board provided, however, that such wage rates shall not be lower than the regional minimum wage rates unless expressly specified in the Wage
Order.
The Board shall furnish the Commission a copy of the decision on the petition or the Wage Order.
Section 3. Frequency of Wage Order. Any Wage Order issued by the Board may not be disturbed for a period of twelve (12) months from its
effectivity, and no petition for wage increase shall be entertained within the said period. In the event, however, that supervening conditions, such as
extraordinary increase in prices of petroleum products and basic goods/services, demand a review of the minimum wage rates as determined by the
Board and confirmed by the Commission, the Board shall proceed to exercise its wage fixing function even before the expiration of the said period.
Section 4. Effectivity. A Wage Order shall take effect fifteen (15) days after its publication in at least one (1) newspaper of general circulation in the
region.
Section 5. Implementing Rules/ Regulations. The Board shall prepare, for approval of the Secretary of Labor and Employment upon recommendation
of the Commission, the necessary Implementing Rules and Regulations not later than ten (10) days from the issuance of a Wage Order.
The Secretary of Labor and Employment shall act on the Implementing Rules within a period of twenty (20) days from receipt of the said Implementing
Rules by the Commission. Once approved, the Board shall cause the publication of the Implementing Rules and Regulations in at least one (1)
newspaper of general circulation in the region.
Section 6. Review of Wage Order. The Commission may review the Wage Order issued by the Board motu propio or upon appeal.
Section 7. Correction of Error. The Board may, motu propio or upon manifestation of any party, proceed to correct any patent error, errors in
computation or typographical errors in any Wage Order.
Section 8. Amendments to Wage Order. In case of substantive changes in the Wage Order, the Board must comply with the required procedures
provided under Section 1 of Rule II and Section 4 of Rule IV.
NOTE: A wage order issued by the BOARD may not be disturbed for a period of 12 months from its effectivity and no petition for
wage increase shall be entertained during said period.
EXCEPT: When Congress itself passes a national minimum law increase wages.
Q: Remedy for the issuance of Wage Order
A: Appeal to NWPC not later than ten (10) days from the date of publication of the Order.
Q: Grounds?
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The Commission may review the Wage Order issued by the Board motu proprio or upon appeal
No more appeal from NWPC
Remedy is Rule 65 (grave abuse, CA), then Rule 45 (questions of law, SC); note: not Rule 43 (because it excludes NWPC)
Section 1. Appeal to the Commission. Any party aggrieved by a Wage Order issued by the Board may appeal such Order to the Commission by filing a
verified appeal with the Board in three (3) typewritten legible copies,. The appeal shall be accompanied by a memorandum of appeal which shall state
the grounds relied upon and the arguments in support of the appeal.
The Board shall serve notice of the appeal to concerned parties.
Failure to file an appeal within the reglementary period fixed under this section or to submit the required documents shall be a ground for dismissal of
the appeal.
Section 2. Grounds for Appeal. An appeal may be filed on the following grounds:
(a) non-conformity with prescribed guidelines and/or procedures;
(b) questions of law;
(c) grave abuse of discretion.
Section 3. Transmittal of Records. Immediately upon receipt of the appeal, the Board Secretariat shall transmit to the Commission Secretariat the
appeal and a copy of the subject Wage Order together with the complete records of the case and all relevant documents.
Section 4. Period to Act on Appeal. The Commission shall decide on the appeal within sixty (60) days from the filing of said appeal.
Section 5. Effect of Appeal. The filing of the appeal does not operate to stay the Order unless the party appealing such Order shall file with the
Commission an undertaking with a surety or sureties satisfactory to the Commission for payment to employees affected by the Order of the
corresponding increase, in the event such Order is affirmed.
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By virtue of Petition by
Labor Union
Publication/Notice of
Hearing
Notice of the petition shall
be published in a newspaper
of general circulation in the
region/conspicuous places.
Publication shall be made at
least 15 days before the
date of initial hearing
Schedule the date of initial
hearing
Hearing mandatory
OPPOSITION
Any interested party may
file his opposition on or
before initial hearing
Shall be in 10 legible copies
Shall contain the following:
o Grounds for opposition
o Relief sought
ISSUANCE OF WAGE
ORDER
If after hearing, the RTWPB
grants such petition
Takes effect 15 days after
publication
APPEAL TO NWPC
Must be made not later
than 10 days from the date
of publication of the WO
Only on grounds of: (1) nonconformity with guidelines;
(2) questions of law; (3)
grave abuse of discretion
Does not suspend the
effectivity of WO; unless
bond equivalent to increase
is posted
Unappealable
CONSOLIDATION OF
PETITIONS
If more than one petition is
filed, the RTWPB may, motu
proprio or on motion
consolidate such petitions.
Petitions
received
after
publication of an earlier
petition need not go through
publication/posting
requirement
PETITION FOR
CERTIORARI IN THE
COURT OF APPEALS
(RULE 65)
Not
later than
than 60
60 days
days from
from
Not later
notice
order or
noticeof the
of judgment,
the judgment,
resolution
order or resolution
APPEAL BY CERTIORARI IN
THE SUPREME COURT
UNDER RULE 45
Within fifteen (15) days from
notice of the judgment or final
order or resolution
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To promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and
their families.
To guarantee the rights of labor to its just share in the fruits of production.
To enhance employment generation in the countryside through industry dispersal and to allow business and industry
reasonable returns on investment, expansion and growth.
To affirm, as the Constitution expresses it, labor as a primary social economic force.
That wages are distributed evenly, and more importantly, social justice is subserved.
This program would require contribution from the employees themselves, and would be unjust to require such a
contribution of those whose wages are not enough for their subsistence. It is unreasonable to ask a man to set aside
something for the future when he does not have enough to eat today
B. Disadvantages
1. May lead to unemployment
Professor King declared it is clear that the effectto throw out employment all persons whose qualifications
are not such that enable them to earn more than the legal minimum. If wages are forced up to the point
higher than what the worker is economically worth, the power worker may be dismissed and the law is antisocial.
2. It would pauperize the worker, destroy their self-respect and make them miserable
3. Brings depression and thus impoverish the nation
4. Constitutes infringement to the workers right to labor as he could not dispose of the same under terms and conditions
he may see fit
5. Will tend to become the maximum.
6. It causes wage distortion*
*A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional
quantitative differences in wage or salary rates between and among employee groups in an establishment as to
effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical
bases of differentiation.
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While labor is entitled to a just share in the fruits of production, the enterprise has an equally important right not only
to reasonable returns on investment but also to expansion and growth.
The Constitution recognizes that the private sector plays an indispensable role something the state cannot do without.
At the same breath, labor is called the primary social economic force. Because one is indispensable and the other is
primary, how can it be said that one is more important, or deserves greater protecti0n than the other?(Azucena
Book I p13)
Wage Orders issued by the Boards cover only private sector workers, except for household helpers and persons in the
personal employ of another, including family drivers.
Art. 120. Creation of the National Wages and Productivity Commission. - There is hereby created a National Wages and Productivity
Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE)
for policy and program coordination."
1. NWPC
(a) To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to
wages, incomes and productivity;
(b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and
national levels;
(c) To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the
regional, provincial or industry levels;
(d) To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in
accordance with prescribed guidelines and national development plans;
(e) To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and
compile data and periodically disseminate information on wages and productivity and other related information, including, but
not limited to, employment, cost-of-living, labor costs, investments and returns;
(f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are
consistent with national development plans;
(g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards;
(h) To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the
consideration of measures to promote wage rationalization and productivity; and
(i) To exercise such powers and functions as may be necessary to implement this Act.
2. RTWPB
(a) To develop plans, programs and projects relative to wages, incomes and productivity improvement for their respective
regions;
(b) To determine and fix minimum wage rates applicable in their region, provinces or industries therein and to issue the
corresponding wage orders, subject to guidelines issued by the Commission;
(c) To undertake studies, researches, and surveys necessary for the attainment of their functions, objectives and programs, and
to collect and compile data on wages, incomes, productivity and other related information and periodically disseminate the
same;
(d) To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code;
(e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any
Wage Order; and
(f) To exercise such other powers and functions as may be necessary to carry out their mandate under this Code.
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The first method was adopted in the earlier wage orders, while the latter method was used in RA 6640 and RA 6727.
The shift from the first method to the second method was brought about by labor disputes arising from wage distortions, a
consequence of the implementation of the wage orders.
The shift from the first to the second method was due to the fact that the latter minimized wage distortion disputes.
NON-DIMINUTION OF BENEFITS
Art. 127 LC. Non-Diminution of Benefits. No Wage Order issued by any regional board shall provide for wage rates lower than
the statutory minimum wage rates prescribed by Congress
WAGE ORDERS APPLICABLE IN CEBU, MANDAUE & LAPU-LAPU CITIES [2012]
DAILY MINIMUM WAGE RATES
REGION VII, Central Visayas
As Per Wage Order No. ROVII-16 a/
Effective September 22, 2011
INDUSTRY/SECTOR
Non - Agriculture
Agriculture
Non-Sugar
Sugar
Sugar Mills
CLASS A
P305.00
CLASS D
P260.00
P287.00
P255.00
P275.00
P270.00
P255.00
P275.00
P240.00
P255.00
P275.00
P255.00
P255.00
P275.00
2010 DOLE Bureau of Working Conditions *BWC+ HANDBOOK ON WORKERS STATUTORY MONETARY BENEFITS
Region
VII
WO No./Date of
Effectivity
WO14/June 16, 2008
Non Agriculture
222.00 267.00
Agriculture
Plantation
Non Plantation
202.00 249.00
202.00 249.00
2012 DOLE Bureau of Working Conditions *BWC+ HANDBOOK ON WORKERS STATUTORY MONETARY BENEFITS
As of January 2012 (In Pesos)
Region
VII
WO No./Date of
Effectivity
WO16/September 22,
2011
Non Agriculture
260.00 305.00
Agriculture
Plantation
Non Plantation
240.00 287.00
240.00 287.00
Page 47
Distressed Establishments
1. For Stock Corporations/Cooperatives
a.When deficit as of the last full accounting period or interim period, if any, immediately preceding the effectivity of the Order amounts to 20% or more of
the paid-up capital for the same period; or
b. When an establishment registers capital deficiency i.e., negative stockholders' equity as of the last full accounting period or interim period, if any,
immediately preceding the effectivity of the Order.
2. For Single Proprietorships/Partnerships
a. Single proprietorships/partnerships operating for at least two (2) years may be granted exemption:
a.1 When the net accumulated losses for the last two (2) full accounting periods and interim period, if any, preceding the effectivity of the
Order amounts to 20% or more of the total invested capital at the beginning of the period under review; or
a.2 When an establishment registers capital deficiency i.e., negative net worth as of the last full accounting period or interim period, if any,
immediately preceding the effectivity of the Order.
b. Single proprietorships/partnerships operating for less than two (2) years may be granted exemption when the net accumulated losses for the period
immediately preceding the effectivity of the Order amounts to 20% or more of the total invested capital at the beginning of the period under review.
3. For Non-stock Non-profit Organizations
a. Non-stock Non-profit organizations operating for at least two (2) years may be granted exemption:
a.1 When the net accumulated losses for the last two (2) full accounting periods and interim period, if any, immediately preceding the
effectivity of the Order amounts to 20% or more of the fund balance/members' contribution at the beginning of the period under review;
or
a.2 When an establishment registers capital deficiency i.e.,negative fund balance/members' contribution as of the last full accounting period
or interim period, if any, immediately preceding the effectivity of the Order.
b.Non-stock non-profit organizations operating for less than two (2) years may be granted exemption when the net accumulated losses for the period
immediately preceding the effectivity of the Order amounts to 20% or more of the fund balance/members' contribution at the beginning of the period
under review.
4. For Banks and Quasi-banks
a. Under receivership/liquidation
Exemption may be granted to a bank or quasi-bank under receivership or liquidation when there is a certification from the Bangko Sentral ng
Pilipinas that it is under receivership or liquidation as provided in Section 30 of RA 7653, otherwise known as the New Central Bank Act.
b. Under controllership/conservatorship
A bank or quasi-bank under controllership/conservatorship may apply for exemption as a distressed establishment under Section 3 A of this
Guidelines.
B.
C.
Retail/Service Establishments Regularly Employing Not More Than Ten (10) Workers
Exemption may be granted to a retail/service establishment when:
5.
It is engaged in tye retail sale of goods and/or services to end users for personal or household use; and
6.
It is regularly employing not more than ten (10) workers regardless of status, except the owner/s, for at least six (6) months in any calendar year.
D.
Exempted:
1. Farm tenancy or leasehold;
2. Domestic service;
3. Persons working in their respective homes in needle work
4. Persons working in any cottage industry duly registered in accordance with law
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Reason for Exemption: A wage exemption is intended to assist financially beleaguered companies to meet their labor
cost without endangering the viability of the company.
Nasipit Lumber vs. NWPC
289 SCRA 667
The power to prescribe guidelines is lodged in the NWPC, not in the RTWPB. This is clearly provided for in Article 121 of RA 6727,
amending the Labor Code. It grants the NWPC, not the RTWPB, the power to prescribe rules and guidelines for the determination of
minimum wage and productivity measure.
While the RTWPB may issue wage orders under Article 122(b) of the Labor Code, such orders must be under the guidelines of the
NWPC. However, the NWPC has the power not only to prescribe guidelines to govern wage but also to issue exemptions therefrom,
as the said rule provides that whenever a wage order provides for an exemption, application thereto must be filed with the
appropriate Board which shall process the same, subject to guidelines which the RTWPB implements. Significantly, the NWPC
authorized the RTWPB to issue exemptions from wage orders, but subject to its review and approval. Since the NWPC never assented
to Guideline No.3 of the RTWPB, the said guideline is inoperative and cannot be used by the latter in deciding or acting on petitioners
application for exemption.
RCPI vs. National Wages Council
207 SCRA 581
PURPOSE OF WAGE EXEMPTION; DISTRESSED ESTABLISHMENT
The purpose of wage exemptions is to help financially distressed companies meet their labor costs without endangering the
existence or viability of the firm upon which both management and labor depend for a living.
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NOTE: Power to issue Rules on exemption, NWPC; Power to grant exemptions, RTWPB
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WAGE DISTORTION
ART. 124. Standards/Criteria for minimum wage fixing.
xxx As used herein, a Wage Distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe
contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to
effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of
differentiation.xxx (As amended by Republic Act No. 6727, June 9, 1989).
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ILLUSTRATIONS:
1)
2)
Merger of two establishments whereby the employees of the dissolved company are absorbed by the surviving company
Example:
Magnolia
Nestle
Casual
P160
P190
Permanent
P190
P200
Magnolia-Nestle
P190
P190
Casual
Permanent
There will be wage distortion.
3)
4)
Passage of RA 6727
Example: SM Company
Casual P145 a wage order is passed Casual P190
Permanent P180 (particularly Wage Order #8, creasing the minimum wage to P190 - Permanent P195
Wage distortion now exists.
The court has pointed out that thru the passage of Art 124, the law recognizes the validity of negotiated wage
increases to correct wage distortion.
The legislative intent is to encourage the parties to seek solution to the problem of wage distortions through voluntary
negotiation or arbitration, rather than strikes, lockouts, or other concerted activities of the employees or
management.
The dispute is settled through the GRIEVANCE PROCEDURE under their CBA;
GRIEVANCE MACHINERY is simply a detailed procedure of how the parties would resolve a dispute arising from:
(a)
The interpretation or implementation of the CBA and
(b)
Thos arising from the interpretation or enforcement of company personnel policies.
WHAT SHOULD BE CONTAINED IN A CBA?
1. Terms and Conditions of employment
2. Wages
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Should the employer refuse to grant an adjustment, then B should file a complaint with the NCMB on the
ground of wage distortion.
(1)
If the negotiations fail, the dispute should be referred to the National Conciliation and Mediation Board[NCMB]
for conciliation
PROCEDURE:
a. This procedure is initiated by the filing of a letter-request with the NCMB on the ground of wage distortion.
b. The Regional Director of the NCMB will now issue a NOTICE directed to the employer inviting him to meet
with them at a designated time, date and place.
c. At the NCMB, the aggrieved employee(s) and the employer will have to be present. This proceeding will be
supervised by an NCMB Mediator.
This is entirely different from the first step because the third person (NCMB Mediator) now interferes
and asks the employersHow much can you afford?
And to the employeesHow much increase do you want?
In so doing, it takes into consideration the financial capacity of the employer and the need of the
1
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3)
d.
The NCMB will try to settle the dispute through AMICABLE SETTLEMENT.
Example: Employer wants to pay P1 increase.
Employee wants P5 increase
NCMB will settle for P3 and suggests this solution to both parties.
e.
Should the employer refuse to accede to the remedy suggested by the NCMB, the NCMB cannot make
negotiations to bind both parties because the main purpose of NCMB is to conciliate and it will suggest that
the parties submit to VOLUNTARY ARBITRATION.
If no settlement is arrived after 10 calendar days of conciliation, the dispute should be brought to the
appropriate branch of the NLRC for COMPULSORY ARBITRATION, which shall conduct continuous hearings and
decide the dispute within 20 calendar days from the time said dispute is submitted for compulsory arbitration.
Appropriate branch of NLRC means to Labor Arbiter (a complaint has to be filed), then appealable to
NLRC within 10 calendar days (no appeal), remedy is Rule 65 to CA, then Rule 45 to SC.
The proceeding is usually adversarial in character because it is initiated by a complaint before the Labor
Arbiter and the other party is required to answer.
Any decision coming out of the Labor Arbiter shall be binding on both parties, whether they like it or
not.
Prior to the time the parties submit their dispute to the NCMB, they could resort to VOLUNTARY ARBITRATION.
VOLUNTARY ARBITRATION is not compulsory; the parties will have to give their consent if they want to submit their
dispute to voluntary arbitration.
They will be given a LIST of voluntary arbitrators from which they will pick out those which they have chosen to be the
arbitrators.
However, most often than not, the parties do not submit their dispute to voluntary arbitration because most of them
do not trust the Voluntary Arbitrators.
The decision of the Voluntary Arbitrator is BINDING upon the parties. Why? This is a contractual proceeding and the
contract is the law of the parties.
In resolving wage distortions, you do not always consider monetary matters. You also have to take into consideration
the length of service, the skills.
Is the decision of the voluntary Arbitrator appealable to the NLRC? No, remedy is Rule 43.
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UNORGANIZED
ESTABLISHMENT
EE and ER NEGOTIATIONS
VOLUNTARY ARBITRATION
UNDER CBA
Decision of VA is F&E after 10 days
from the receipt of the copy of the
decision by the parties
One MR is allowed within 10 day
period
Because of its Final and Executory
nature, only a TRO from the CA/SC
will stay the execution of the VAs
judgment
COMPULSORY ARBITRATION
UNDER THE LABOR ARBITER
If no settlement is arrived within 10
calendar days from conciliation
LA shall decide the case within 20
calendar days from the time said
dispute is submitted for CA
Appeal to NLRC
Must be within 10
calendar days from receipt
of decision
Decision is Unappealable
MR allowed within 10 days
PETITION FOR
CERTIORARI IN THE
COURT OF APPEALS (RULE
65)
Not later than 60 days from notice of
the judgment, order or resolution
Questions of fact or law or both
VOLUNTARY ARBITRATION
REQUIRES CONSENT FROM BOTH
PARTIES
If employer refuses to accede to
the remedy suggested by NCMB;
OR Directly after failure of
negotiations
Decision of VA is F&E after 10
days from the receipt of the copy
of the decision by the parties
One MR is allowed within 10 day
period
Because of its Final and Executory
nature, only a TRO from the CA/SC
will stay the execution of the VAs
judgment
APPEAL BY CERTIORARI IN
THE SUPREME COURT UNDER
RULE 45
Within fifteen (15) days from notice
of the judgment or final order or
resolution
Pure Questions of Law
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Arbitration may be classified on the basis of obligation on which it is based, it may either be:
1. VOLUNTARY ARBITRATION
It is the policy of the State to encourage voluntary arbitration on all labor-management disputes. Before or at any
stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration.
(Implementing Rules, Book V, Rule XIX, Sec. 5.)
Defined as a contractual proceeding whereby the parties to any dispute or controversy in order to obtain a speedy and
inexpensive final disposition of the matter, select a judge of their own choice and by consent, submit their controversy
to him for determination.
Under voluntary arbitration, the "judge" is named by the parties, pursuant to a voluntary arbitration clause in their
collective agreement. He is an impartial third person authorized by the parties to make a final and binding decision or
award.
A voluntary arbitrator "is not a public tribunal imposed upon the parties by a superior authority which the parties are
obliged to accept. He has no general character to administer justice for a community. He is rather part of a system of
self-government created by and confined to the parties." [Maurice S. Trotta, Arbitration of Labor Management
Disputes, American Management Association, New York, 1974, p. 73.]
The parties can agree to select a Labor Arbiter as a voluntary arbitrator because it is as to the agreement of the parties.
Arbitration may be initiated either by 1) a Submission Agreement or 2) by a Demand or Notice invoking a collective
agreement arbitration clause. Sometimes both instruments are used in a case.
Although the contract may establish the breadth of the arbitrator's power and the limits of his authority, his power
may be more sharply defined in the submission agreement.
In Philippine context, the "judge" in voluntary arbitration is called arbitrator, while that in compulsory arbitration is
labor arbiter.
Proceedings are Non-litigious in nature, not governed by technical rules of procedure used in courts but due process is
always observed.
VOLUNTARY ARBITRATOR
Any person accredited by the Board as such; or
Any person named or designated in the CBA by the parties to act as their voluntary arbitrator; or
One chosen, with or without the assistance of the NCMB, pursuant to selection procedure agreed upon in the CBA; or
Any official that may be authorized by the Sec of Labor to act as voluntary arbitrator upon the written request and
agreement or the parties to a labor dispute.
2. COMPULSORY ARBITRATION
Process of settlement of labor disputes by a government agency [or by other means provided by the government]
which has the authority to investigate and to make award which is binding on all the parties.
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It is compulsory because the law declares the dispute subject to arbitration, regardless of the consent of the parties.
It is an adversarial proceeding initiated by a complaint [usually by a union] for wage distortion before the Labor
Arbiter. The other party is required to answer.
It is the Labor Arbiter who is clothed with the original and exclusive authority to conduct compulsory arbitration under
Art. 217.
Proceedings after a labor arbiter's decision is brought up to the National Labor Relations Commission cannot be
considered as part of the arbitration proceedings. This is because in the appeal stage, the Commission merely re-views
the Labor Arbiter's decision for errors of fact or law. It does not duplicate the proceedings held at the Labor Arbiter's
level. Thus, the clause "pending final resolution of the case by arbitration" should be understood to be limited only to
the proceedings before the Labor Arbiter, so that when the latter rendered his decision, the case could be considered
finally resolved by arbitration. [See Philippine Airlines, Inc. vs. National Labor Relations Commission, G.R. No. 55159,
Dec. 22, 1989.]
The Commission itself, through any of its divisions, also conducts compulsory arbitration, but only in "national interest
cases" certified or referred to it by the DOLE secretary under Art. 263(g).
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
SECTION 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments,
final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are
the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under
Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law. (n)
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RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
SECTION 1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a judgment, final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts whenever authorized by law, may file
with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or
other provisional remedies and shall raise only questions of law which must be distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at any time during its pendency. (as amended by A.M. 07-7-12-SC)
SEC. 2. Time for filing; extension.The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. On
motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition.
(1a, 5a)
SEC. 5. Dismissal or denial of petition.The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of
the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein are too unsubstantial to require consideration. (3a)
SEC. 6. Review discretionary.A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special
and important reasons therefor. The following, while neither controlling nor fully measuring the courts discretion, indicate the character of the
reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way
probably not in accord with law or with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure
by a lower court, as to call for an exercise of the power of supervision. (4a)
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Failure or refusal to pay mandatory wage increase is considered a criminal offense under Republic Act No. 8188,
approved on June 11, 1996. The violator may be sentenced to imprisonment of not less than two (2) years nor more
than four (4) years. He may also be punished by a fine of P25,000 to PIOO.OOO.OO. Moreover, he shall be ordered to
pay an amount equivalent to double the unpaid benefits owing to the employee.
Note:
Philippine Hotelier, INC. vs. National Union
The Court, however, finds no basis to hold Dusit Hotel liable for double indemnity. Under Section 2 (m) of DOLE Department
Order No. 10, Series of 1998, 30 the Notice of Inspection Result "shall specify the violations discovered, if any, together with the
officer's recommendation and computation of the unpaid benefits due each worker with an advice that the employer shall be
liable for double indemnity in case of refusal or failure to correct the violation within five calendar days from receipt of notice".
A careful review of the Notice of Inspection Result dated 29 May 2002, issued herein by the DOLE-NCR to Dusit Hotel, reveals
that the said Notice did not contain such an advice.
Penalty for Violation of the Prescribed Increase or Adjustment in the Wage Rate (RA 8188):
1.
2.
3.
4.
Payment of a fine of not less than P25,000 nor more than P100,000; or
Imprisonment for not less than 2 years nor more than 4 years, the imprisonment being non-probationable. (The case should
therefore be filed with the MTC pursuant to BP 129 as amended by RA 7691); or
Both imprisonment and fine, at the discretion of the Court.
Paying double the unpaid benefits/amounts owing the employees, provided that the Payment of Indemnity shall not
absolve the employer from criminal liability imposable under the Labor Code.
Aside from the penal provision provided under RA 6727, there are provisions in the Labor Code on the enforcement
and recovery of minimum wage provisions. There are general two provisions for the enforcement and recovery of
minimum wage provisions Articles 128 and 129. Remember that the minimum wage is fixed by a wage order and
there is a built-in mechanism in the Labor Code which provides the so-called enforcement tools for the recovery of
wages, particularly the minimum wage provisions.
Article 128 enforcement machinery in aid of the visitorial power of the Secretary of Labor. This is described as
inquisitorial. Why? Because the SOLE inquires ask for documents, investigate, etc.
Article 129 machinery of wage recovery via the administrative process initiated by a complaint. This is described as
adversarial. Why? Because it requires a complaint for its initiation.
DOLE D.O. No. 10, SERIES OF 1998 [GUIDELINES ON THE IMPOSITION OF DOUBLE INDEMNITY FOR NON-COMPLIANCE WITH THE
PRESCRIBED INCREASES OR ADJUSTMENT IN WAGE RATES]
Republic of the Philippines
DEPARTMENT OF LABOR AND EMPLOYMENT
Manila
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JURISDICTION
REGULAR COURTS
BP 129, AS AMENDED
REGIONAL TRIAL COURTS
Section 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;
(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property
involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such the value exceeds Fifty thousand pesos
(50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;
(3) In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds One hundred thousand pesos (P100,000.00) or , in
Metro Manila, where such demand or claim exceeds Two hundred thousand pesos (200,000.00);
(4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00)
or, in probate matters in Metro Manila, where such gross value exceeds Two hundred thousand pesos (200,000.00);
(5) In all actions involving the contract of marriage and marital relations;
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or
body exercising judicial or quasi-judicial functions;
(7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of
the Courts of Agrarian Relations as now provided by law; and
(8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the
value of the property in controversy exceeds One hundred thousand pesos (100,000.00) or, in such other abovementioned items exceeds Two
hundred thousand pesos (200,000.00). (as amended by R.A. No. 7691*)
REGIONAL DIRECTOR
ART. 128. Visitorial and enforcement power.
(a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employers records and
premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any
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This Article is the nucleus of administrative enforcement of Philippine labor laws. The job is lodged with the Secretary
of Labor and Employment, the regional directors and other duly authorized representatives. The enforcement function
is broad. It covers "any fact, condition or matter which may be necessary to determine violations or which may aid in
the enforcement" of the Code and any labor law, wage order or regulations.
Law enforcement includes inspection of establishments, but every inspection should be supported by an authorization
duly issued. Where violations are found, appropriate report will be submitted. Subsequently, a "compliance order"
may issue which is a command to rectify the violation found and proven.
The issuance of a Compliance Order must observe the "cardinal primary requirements" of due process in
administrative proceedings.
It should be noted that the authority under Art. 128 may be exercised regardless of monetary value involved, unlike in
Art 129 which fixes a maximum of P5,000.00 per claimant. R.A. No. 7730 (June 2, 1994) changed Art. 128(b) to its
present wording so as to free it from the jurisdictional limitations found in Art. 129 and 217.
In the exercise of his power under this Article the Secretary of Labor and Employment may even order the stoppage of
work or suspension of operations of the inspected establishment or parts of it. The employer, if at fault, may be
ordered to pay the employees' wages during the work stoppage or suspension of operations. But, again, due process
of law must be observed.
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A regional director of DOLE has the power to order rectification of a labor standards violation even if such violation is
not mentioned in the employee's complaint. (See Aboitiz Shipping Corp. vs. De la Sema, etc.,G.R. No. 88538, April 25,
1990.)
The regional director, in cases where employer-employee relationship still exists, has the power to order and
administer, after due notice and hearing, compliance with the labor standards provisions of the Labor Code and other
legislation based on the findings of labor regulation officers or industrial safety engineers made in the course of
inspection. He may also issue writs of execution to the appropriate authority for the enforcement of his orders in line
with the provisions of Article 128 in relation to Article 289 and 290 of the Labor Code.
However, in those cases where the employer contests the findings of the labor standards and welfare officers and
raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal
course of inspection, the regional director must endorse the case to the appropriate arbitration branch (labor-arbiter)
of the NLRC for adjudication (Sec. 1, Rule X, Book III, Omnibus Rules Implementing the Labor Code).
The visitorial enforcement power is thorough and piercing; it extends even to issues not formally included in the
complaint.
LABOR ARBITER
ART. 217. Jurisdiction of the Labor Arbiters and the Commission.
(a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within
thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic
notes, the following cases involving all workers, whether agricultural or non-agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and
other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and
6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from
employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five
thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
(c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or
enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and
voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989).
This Article enumerates the cases falling under "original and exclusive" jurisdiction of labor arbiters. This gives the
impression that none but a labor arbiter can hear and decide the six categories of cases listed. But this is not really so.
Any or all of these cases can, by agreement of the parties, be presented to and decided with finality by a voluntary
arbitrator or panel of voluntary arbitrators. (See Articles 261 and 262.)
The law prefers or gives primacy to voluntary arbitration (Art. 211) instead of compulsory arbitration. And this, in turn,
is the reason the law (Art. 261, last paragraph, and Art. 217 [c]) forbids a labor arbiter from entertaining a dispute
properly belonging to the jurisdiction of a voluntary arbitrator.
The cases a labor arbiter can hear and decide are employment-related. One unifying element runs through all the
cases and disputes enumerated in Art. 217. That element is employment connection. But, additionally, as regards
money claims, the law applicable to grant the relief sought should likewise be considered. If the principal relief sought
will be resolved by applying the Labor Code or other labor relations statute or a collective bargaining agreement, then
the case belongs to the labor arbiter. But if the applicable law is the general civil law, the jurisdiction over the dispute
belongs to the regular courts, such as the regional trial court. (See San Miguel Corf. vs. NLRC, G.R. No. 80774, May
31,1988.)
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The SOLE or his duly authorized representative, in the exercise of their visitorial and enforcement powers, are now
authorized to issue COMPLIANCE ORDERS to give effect to the labor standards provisions of this Code and other labor
legislation based on the findings of the labor employment and enforcement officers or industrial safety engineers
made in the course of inspection, SANS, any restriction with respect to the jurisdictional amount of 5, 000 provided
under ART 129 and ART 217.
Q: Does the Labor Code confer this Visitorial Power to be exercised by the Regional Director?
A: YES. The Regional Director is the duly authorized representative of the SOLE.
JURISDICTION
Art. 129. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers
of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other
monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this
Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate
money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve
the complaint within thirty (30) calendar days from the date of the filing of the same. Xxxx
Article 217. Jurisdiction of the Labor Arbiters and the Commission.
Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days
after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers,
whether agricultural or non-agricultural:
Unfair labor practice cases;
Termination disputes;
If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of
employment;
Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and
Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including
those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim
for reinstatement.
The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company
personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said
agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989)
Upon receipt of the Regional Director of this information, there will be an ORDER OF INSPECTION.
(c) This inspection authority will then be implemented by a Labor and Employment Officer of the DOLE. And this person will visit the
employers premises and then conduct an inspection.
He will inspect the payroll to determine if indeed there was underpayment of wages, inspect the employers premises, interview and
ask the employees themselves if they are indeed paid such amount of wages, compare the payment records and confer with the
employees.
(d)
If the inspector finds that there is a violation or underpayment of wages, he will make an INSPECTION REPORT
Usually embodied in a NOTICE OF INSPECTION RESULTS.
All violations that the Labor Employment Officer will find in the employers premises will be enumerated and be put as his findings in
the notice.
(e)
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(g)
The employer may contest the notice of inspection results and raise issues which cannot be resolved without considering DOCUMENTARY
PROOFS that are not verifiable in the normal course of inspection.
(h)
(i)
If on the other hand, the employer does not or fails to contest the notice of inspection result, as well as fails to comply with such notice.
The order of compliance will basically be based on the notice of inspection results, so if the inspection says that you are underpaying
10 workers or just paying them P100, the RD will issue an order of compliance ordering this time the employer to pay the following
workers the following sums of money.
(j)
HOW SOON? The employer shall raise such objections during the hearing of the case or at any time after the receipt of the notice of
inspection results.
The order of compliance can be questioned within 10 calendar days thru an APPEAL with SOLE (filing of bond)
Then the employer will file a motion for reconsideration with the RD within 7 calendar days.
If the employer files it beyond 7 days but not beyond 10 days, that will be considered an appeal from the RD to the SOLE.
If the employer will not file a motion for reconsideration, what will happen to the order of compliance? It becomes final and executory.
(k) On the other hand, if the employer validly contests by raising issues supported by documentary proofs which were not considered in the
course of inspection what will happen?
Note: It is very important that you be able to contest the notice of inspection results within the time frame authorized by the
RULES ON DISPOSITION OF LABOR STANDARDS CASES. Because if you fail or if you contest but the wrong way, or you fail to
contest it at all, then the RD will have no recourse but to issue an order of compliance. And then your remedy therefore is no
longer to contest but to a motion for reconsideration or probably an appeal to the SOLE. In case you still fail to do that, then that
order of compliance will become final and executory for which the SOLE or the Rd for that matter is now authorized to issue a
writ of execution. Then that is the end of the case.
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Issue Inspection
Authority (RD)
Inspection by
LSWO
No
Violation
Issue Notice of
Inspection Result
(NIR)
END
Endorsed to Labor Arbiter
employer contests the
findings of the Labor
Standards and Welfare
Officers and the issues
cannot be resolved
without considering
evidentiary matters that
are not verifiable in the
normal course of
inspection
Yes
Issue
NIR
Compiled
after 7 days
Yes
END
No
Complaint
Contested
Issue Compliance
Order (CO)
Compiled
after 7 days
No
Issue Writ of
Execution
Yes
Conduct Hearing
Decision
Settled
No
Yes
END
END
PETITION FOR
CERTIORARI IN THE
COURT OF APPEALS (RULE
65)
Not later than 60 days from
notice of the judgment, order or
resolution
Questions of fact or law or both
Satisfaction of
Judgment
END
APPEAL BY CERTIORARI IN
THE SUPREME COURT UNDER
RULE 45
Within fifteen (15) days from notice
of the judgment or final order or
resolution
Pure Questions of Law
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In the appeal from the RD decision to the NLRC, the aggrieved party has 5 calendar days, while in the appeal from LA
decision to the NLRC; the aggrieved party has 10 days from receipt of notice of decision.
7. From the adverse decision of the NLRC, the employer can then file a motion for reconsideration.
8. If said motion is denied, the employer may still file a Special Civil Action for Certiorari with the Court of Appeals under Rule 65
of the Rules of Court within a period of 60 days from receipt of the decision.
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Pro-forma Complaint
with Regional
Director
RD Issues Summons
served upon employerrespondent
5 days to
file Answer
Admit
END
Deny
Summary Hearing
Must be decided within 30
calendar days from date of
filing of the complaint
Appealable to NLRC
APPEAL TO NLRC
Must be within 5 calendar days from the
receipt of a copy of decision
Shall resolve appeal within 10 calendar
days from the submission of the last
pleading
Grounds:
(5)
Prima facie Grave Abuse of
Discretion;
(6)
Order was secured through
fraud, coercion or graft and
corruption;
(7)
Pure questions of law;
(8)
Serious errors in the findings of
facts
MR necessary before filing of Special Civil
Action
PETITION FOR
CERTIORARI IN THE
COURT OF APPEALS (RULE
65)
Not later than 60 days from
notice of the judgment, order or
resolution
Questions of fact or law or both
APPEAL BY CERTIORARI IN
THE SUPREME COURT UNDER
RULE 45
Within fifteen (15) days from notice
of the judgment or final order or
resolution
Pure Questions of Law
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This provision does not refer to violation of minimum wage laws. It refers to the instance that when the noncompliance with the law or implementing rules and regulations poses grave and imminent danger to the health and
safety of workers in the workplace, the SOLE can issue an order for the stoppage of work or the suspension of
operations of any unit or department in an establishment.
ILLUSTRATION:
When there is a leak in a chemical plant, there is hazard to the employees. The SOLE can order suspension of operation.
Q: Is the power of SOLE to order suspension of operation similar to Article 286 on bona fide suspension of operations?
A: NO. They are different. In Article 286, it is the employer who suspends the operations while on the other hand, Article 128
speaks of suspension by the Secretary of Labor.
Example, for causes attributable to the employer and in the interest of health and safety of the workers, the Regional Director
orders the suspension of the companys operation. The logical question there is What is the consequence of that? Will the
employees be paid their wages?
In Article 286, for example, if the employer decides to suspend his operations unilaterally, will the employees be entitled to their
daily wages?
What is being inquired in Article 128 is whether or not the employer complies with labor standards laws, rules and
regulations, as well as social legislations. The power to visit the employers premises is so broad enough as to enable
the SOLE or his duly authorized representative to make a finding after making such inspection. Since what will be
involved would be inquiring on violations of labor standard laws as well as wage orders, it would be important for us to
know the step-by-step procedure in the conduct of inspection under Article 128. And since what is involved would be
labor standard provisions such as the minimum wages laws or rules Is the employer obliged to maintain a payroll?
YES. The employer is obliged to maintain a payroll pursuant to the power of the SOLE under Article 128 (f) to issue such
rules and regulations pertinent thereto. Under implementing rules, see Section 6, Rule X, Book III.
Q: In the exercise of the visitorial power, can the SOLE be interfered with by the courts?
A: NO. This is pursuant to Article 128 (d). If the SOLE or the Regional Director, for that matter, decides to inspect the employers
premises, then no entity can lawfully interfere, obstruct or delay the exercise of that authority; otherwise they would be
penalized under that provision of the LC. That is how
comprehensive and that is how strong the visitorial and enforcement power of the SOLE is.
Article 283 speaks of a permanent retrenchment as opposed to a temporary lay-off. There is no specific provision of
law which treats of a temporary retrenchment or lay-off. To remedy this situation or fill the hiatus, Article 286 may be
applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating
status. Six months is the period set by law that the operation of a business or undertaking may be suspended thereby
suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise
cease to work should also not last longer than six months. After six months, the employees should either be recalled to
work or permanently retrenched following the requirements of the law. Failing to comply with this would be
tantamount to dismissing the employees and the employer would thus be liable for such dismissal, (Sebuguero,et aL
vs. NLRC, G.T.L Sportswear Corp., eta/, G.R. No. 115394, September 27, 1995.)
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When the "floating status" of the employees lasts more than six (6) months, they may be considered to have been
constructively dismissed from the service. Thus, they are entitled to the corresponding benefits for their separation.
(Agro Commercial Security Services Agency, Inc. vs. National Labor Relations Commission, G.R. Nos. 82823-24, July 31,
1989.)
ANTI-INJUCTION
It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render Ineffective the orders of the SOLE or his
duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue
temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement
orders issued in accordance with this Article.
Art 128 VISITORIAL and ENFORCEMENT POWER
empowers the Secretary of Labor or any "duly authorized
representative
covers all matters affected by the Labor Code or any labor law
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The Regional Tripartite Wages and Productivity Board (RTWPB) do not have the power to promulgate rules providing who is
exempted from minimum wage. It is the National Wages and Productivity Board (NWPC) that has the rule-making power to
promulgate rules on exemption and minimum wage fixing, and not the RTWPB.
Rule X
ADMINISTRATION AND ENFORCEMENT
Section 6. Nature of proceedings.
(a) Every employer shall pay his employees by means of payroll wherein the following information and data shall be individually shown:
2. Length of time to be paid;
3. The rate of pay per month, week, day or hours, piece, etc.;
4. The amount due for regular work;
5. The amount due for overtime work;
6. Deductions made from the wages of the employees; and
7. Amount actually paid.
b) Every employee in the payroll shall sign or place his thumbmark as the case may be, at the end of the line opposite his name where a blank space
shall be provided for the purpose. His signature shall be made in ink or his thumbmark placed with the use of the regular stamping ink and pad.
Section 11. Place of records. All employment records of the employees of an employer shall be kept and maintained in or about the premises of the
workplace. The premises of a workplace shall be understood to mean the main or branch office or establishment, if any, depending upon where the
employees are regularly assigned. The keeping of the employees records in another place is prohibited.
Section 12. Preservation of Records. All employment records required to be kept and maintained by employers shall be preserved for at least three
(3) years from the date of the last entry in the records.
Dispute resolution through compromise is a pervading philosophy of Philippine labor laws. This is emphasized In this Art. 227
and it conforms with the statement of basic policy in Art. 211 (a) and the second paragraph of Art. 221.
The law looks with disfavor upon quitclaims and releases by employees who are inveigled or pressured into signing them by
unscrupulous employers seeking to evade their legal responsibilities. On the other hand, there are legitimate waivers that
represent a voluntary settlement of a laborer's claims that should be respected by the courts as the law between the parties.
Not all waivers and quitclaims are Invalid as against public policy. If the agreement was voluntarily entered into and represents a
reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind.
A judgment rendered In accordance with a compromise agreement is not appealable and is immediately executory, unless a
motion is filed to set aside the agreement on the ground of fraud, mistake, or duress, in which case an appeal may be taken
against the order denying the motion, (Master Tours and Travel Corp. vs. CA, 219 SCRA 321; United Housing Corp. vs. Dayrit, 181
SCRA 235.)
A compromise agreement by union officers must be authorized by the union members. The authority must be produced in
evidence. Each laborer must authorize the union officers to enter into a compromise before the laborer's right may be affected.
(Kaisahan ng mga Manggagawa sa La Campana vs. Sarmtento, 133 SCRA 220 [1984],) See further discussion under Art. 242.
Art 2028 CC. A compromise is a contract where the parties, by making reciprocal concessions, avoid a litigation or put an end to one
already commenced.
GUIDELINES ON THE PROCEDURE FOR CLOSURE OF BUSINESS UNDER RA9231 (DOLE DEPT Circ. No. 3, Series of 2009)
I.
Purpose
This Circular is being issued to guide the DOLE Regional Offices on the procedure for closure on the basis of Republic Act No. 9231 (An Act Providing for the Elimination of the Worst Forms of
Child Labor and Affording Stronger Protection for the Working Child), particularly its Section 16(g), amending Section 16 Penalties of Republic Act No. 7610 (Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act) and Department Order No. 65-04 or the Implementing Rules and Regulations of R.A. 9231, particularly Sections 21, 23 and 24.
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III.
Immediate Closure
Prior notice and hearing is not required if any of the following circumstances or grounds is present:
1. The violation of any provision of R.A. 9231 has resulted in the death, insanity, or serious physical injury of a child employed in such establishment;
2. Such firm or establishment is employing a child for prostitution or obscene or lewd shows; or
3. There is imminent danger to the life and limb of the child. An imminent danger is a condition or practice that could reasonably be expected to cause death or serious physical harm before
abatement under the enforcement procedures can be accomplished. (Rule 1012.02 Occupational Safety and Health Standards)
Under any of the above circumstances, the Secretary of Labor and Employment or the Regional Director shall order the immediate closure of the business, firm or establishment. For purposes
herein, the term immediate shall mean a reasonable time not to exceed five (5) working days reckoned from receipt by the Regional Director of the complaint or petition for closure and
relevant documentary evidence in support thereof.
Such documentary evidence shall be attached to the Notice of Closure and shall include a combination of any or all but not limited to, the following documents as may be applicable, to wit:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Inspection Report
Proof of childs age, such as the NSO-authenticated Certificate of Live Birth;
Sworn Statement of the complainant-child or children and their witnesses;
Photographs;
Daily Time Records and/or Time Sheet;
Results of Physical and Medical Examination as issued by a competent medical practitioner;
Accident Report;
Results of ultra-violet (UV) testing for receipt of marked money by the offender during entrapment; and
Business License/Permit/SEC Registration of the business, firm, or establishment concerned.
In any of the above three circumstances or grounds, the prescribed procedure is a close-now-hear-later process, which shall be summary in nature. In this procedure, the Notice of Closure shall
include a statement duly notifying the establishment concerned of a subsequent hearing that will be conducted to determine whether to affirm or reverse the closure order.
IV.
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RULE III
ENDORSEMENT OF CASES TO THE NATIONAL LABOR RELATIONS COMMISSION (NLRC)
Section 1. Contested cases.
(a) In cases where the employer contests the findings of the Labor Standards and Welfare Officers and the issues connote resolved without considering evidentiary matters that are not verifiable in the
normal course of inspection, the Regional Director shall endorse such case to the appropriate Arbitration Branch of the National Labor Relations Commission;
(b) The employer shall raise such objections during the hearing of the case or at any time after receipt of the notice of inspection results. The issue of whether or not the case shall be endorsed to the
NLRC shall be resolved by the Regional Director in the final disposition of the case.
Section 2. Labor Standards and Welfare Officers (LSWOs). As witnesses in the cases that have been endorsed to the NLRC, the LSWOs who participated in the investigation shall make themselves
available as witnesses in the proceedings before the Labor Arbiters concerned.
RULE IV
APPEALS
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Hon. Secretary of Labor vs. Panay Veterans Security and Investigation Agency, G.R. No. 167708, August 22, 2008 Appeal from an order of compliance must be
accompanied with bond; motion to reduce bond under NLRC rules not applicable to proceedings under Art. 128; the Rules on Disposition of Labor Standard cases will
apply
Peoples Broadcasting (Bombo Radyo Phils., Inc.) vs. Sec. of DOLE et al., G.R. No. 179652, May 8, 2009 Visitorial power of the Regional Director/DOLE does not apply
in two (2) instances: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed.
Balladares et al., vs. Peak Ventures Corp.., et al., G.R. No. 161794, June 16, 2009 Regional Director/DOLE may adjudicate in a summary proceeding claims for
recovery of wages etc., even if the amount involved exceeds Php5, 000.00. The worker need not litigate to get what legally belongs to him. The whole enforcement
machinery of the DOLE exists to insure its expeditious delivery to him free of charge.
Meteoro et al., vs. Creative Creatures, Inc., G.R. No. 171275, July 13, 2009 the Regional Director/DOLE is divested of jurisdiction under Art. 128 under the so-called
exception clause, which applies when the employer contests the findings of the labor regulation officer and raises issues supported by documentary proof which
were not considered in the course of inspection. The existence of employer-employee relationship is a question of fact that necessitates the examination of
evidentiary matters not ordinarily verifiable in the normal course of inspection.
In exercising the visitorial and enforcement power under Art. 128, the DOLE Regional Director performs quasi-judicial power, held in 2006 DOLE Phils., thus his
decision is binding upon the NLRC. Note however that in 2009 Peoples Broadcasting, the power of the DOLE under Art. 128 does not apply in two instances, namely :
o
where the employer-employee relationship has ceased; and
o
where no such relationship has ever existed.
In the first situation, the claim has to be referred to the NLRC because it is the NLRC which has jurisdiction in view of the termination of the employer-employee
relationship , while in the second situation , it is the NLRC that has jurisdiction in view of the absence of employer-employee relationship. Note that the elements of
such relationship are not verifiable from a mere ocular inspection , The intricacies and implications of an employer-employee relationship demand that the level of
scrutiny should be far above the cursory and the mechanical.
Art. 128 on stoppage of operation does not apply since it is not the RD/DOLE that ordered the suspension of operation but the DENR , thus , no work no pay during
suspension of operation , held in 2008 National Mines and Allied Workers Union.
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WAGE DEDUCTION
Article 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees,
except:
(a)
In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the
amount paid by him as premium on the insurance;
(b)
For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in
writing by the individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.
GR: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees
Except:
1. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the
amount paid by him as premium on the insurance;
2. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or
authorized in writing by the individual worker concerned; and
3. In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.
GR:
No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made.
EXCEPT: The employee has been heard thereon, and his responsibility has been clearly shown.
Article 115. Limitations. No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless
the employee has been heard thereon, and his responsibility has been clearly shown.
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NOTES: An employer cannot simply refuse to pay the wages or benefits of its employee because he has either defaulted in paying a
loan guaranteed by his employer; or violated their memorandum of agreement; or failed to render an accounting of his employers
property.
DEDUCTION TO ENSURE EMPLOYMENT
Article 117. Deduction to ensure employment. It shall be unlawful to make any deduction from the wages of any employee for the
benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment.
NOTES: The practice of a security agency of deducting 25% from the salary of its security guards as the agencys share in procuring job
replacement for the guards is a violation of this provision. Even though the guards agreed to the arrangement, it cannot be given any
effect because it is contrary to law and public policy.
RETALIATORY MEASURES
Article 118. Retaliatory measures. It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in
any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to
testify in such proceedings.
it essentially means that 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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If all of these conditions are met, the employer can validly, by himself, pay wages by checks.
Note the differences of the instances in the rules that allow payment by check and place of payment, because that it usually
the mistake of students when they interchange the instances and of course, these being different, they will end up wrong.
Note that the employer should not enter into an arrangement with the bank that the employer will receive commission if
the employer pays in the form of check. There should be no pecuniary benefit from this arrangement of payment through
check.
NOTES: Where the employee alleges non-payment of wages and/or commission, the employer has the burden to prove payment.
Jimenez vs. NLRC
In the instant case, the right of respondent Juanatas *employee+ to be paid a commission equivalent to 17%, later
increased to 20%, of the gross income is not disputed by petitioners [employer]. Although the respondent admits receipt of partial
payment, petitioners still have to present proof of full payment. Where the defendant [who is] sued for a debt admits that the debt
was originally owed, and pleads payment in whole or in part, it is incumbent upon him to prove such payment. That a plaintiff admits
that some payments have been made does not change the burden of proof. The defendant [employer] still has the burden of
establishing payments beyond those admitted by plaintiff.
Regarding the vales or advance payments taken by the employee, the Court did not recognize as evidence of payment the notebook
which the employer presented. The Court said: Although petitioners submitted a notebook showing the alleged vales of private
respondents for the year 1990, the same is inadmissible and cannot be given probative value considering that it is not properly
accomplished, is undated and unsigned, and is thus uncertain as to its origin and authenticity.
The Implementing Rules require every employer to keep a payroll. Among other things, it must show the length of time to be paid,
the pay rate, the amount actually paid, and so on. The employee should sign the payroll.
LEGAL TENDER
Is that currency which has been made suitable by law for the purpose of a tender of payment of debts.
All notes and coins issued by the Central Bank are legal tender.
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PLACE OF PAYMENT
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 as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages.
EXCEPTIONS (Rule VIII, Book III, Section 4, Omnibus Rules:
(1) Reason of the deterioration of peace and order conditions.
(2) Reason of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment thereat
impossible;
(3) When the employer provides free transportation to the employees back and forth; and
(4) Under any other analogous circumstances; Provided, That the time spent by the employees in collecting their wages shall
be considered as compensable hours worked;
(5) 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 things representing money except in the
case of persons employed in said places.
RA 6727-PAYMENT THRU BANKS
Section 7. Upon written permission of the majority of the employees or workers concerned, all private establishments, companies, businesses, and
other entities with twenty five (25) or more employees and located within one (1) kilometer radius to a commercial, savings or rural bank shall pay the
wages and other benefits of their employees through any of said banks and within the period of payment of wages fixed by Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the Philippines.
Section 8.Whenever applicable and upon request of a concerned worker or union, the bank shall issue a certification of the record of payment of
wages of a particular worker or workers for a particular payroll period.
Therefore, the following conditions must concur for the valid payment of wages thru banks:
1. upon written permission of the majority of the employees or workers concerned;
2. all private establishments, companies, businesses, and other entities with at least 25 or more employees;
3. located within 1 kilometer radius to a commercial, savings or rural banks shall pay wages or benefits of their employees
through any of the banks;
4. within the period of payment of wages fixed by PD 442, the Labor Code, as amended; (see below: time/frequency of
payment)
Q: Is the employer allowed by existing rules and regulations to pay the employees wage through the facility of the ATM?
A: YES, note the conditions [RA 6727 Sec 7]
Q: When we say ATM, is that same as the payment of wages through the banks?
A: That may, or may not be different. There is an ATM in a bank, but an ATM is not always located in a bank.
Q: Is it possible to pay the employees wage through the facilities in a bank?
A: YES, note the conditions [RA 6727 Sec 7]
THRU ATM (DOLE Labor Advisory on Payment of Salaries Thru ATM, Series of 1996)
Article 104, as amended, requires that payment of wages shall be made at or near the place of undertaking, except as otherwise
provided by such regulations as the Secretary of Labor may prescribe under conditions that would ensure prompt payment and
protection of wages.
Based on Article 104, as well as the provisions of Section 4, Rule VIII, Book III and considering present-day circumstances, practices
and technology, employers may adopt a system of payment other than in the workplace, such as through ATMs of banks, provided
that the following CONDITIONS are met:
(1) The ATM system of payment is with the written consent of the employees concerned.
(2) The employees are given reasonable time to withdraw their wages from the bank facilities which time, if done during
working hours, shall be considered as compensable hours worked.
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The point here is that, if the employer elects to pay the employees wage through the ATM, there should be no diminution of the
employees wage. The employees can also demand from the employer, proof of how much they are paid including the itemized
deduction. In other words, it will not dispense with the requirement of the pay slip. Remember, that the employers decide on
their own without the employees consent to pay their wages through the ATM facilities. Evidently in violation or nonconformity with the guidelines issued by the DOLE. If that happens, then the remedy of the employees would be to report it to
the DOLE for an inspection and for the correction of that particular system. The DOLE, in the exercise of its visitorial and
enforcement power can order the employer to correct any deficiency in that kind of practice.
Summary of exceptions:
(1) Deterioration of peace and order conditions.
(2) Actual or impending emergencies caused by fire, flood, epidemic or other calamity
(3) When the employer provides free transportation to the employees back and forth;
(4) Under any other analogous circumstances provided that the time spent by the employees in collecting their wages shall be
considered as compensable hours worked
(5) BANK
(6) ATM
PAYEE
ART. 105. Direct payment of wages. Wages shall be paid directly to the workers to whom they are due, except:
(a)
In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of
Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority
given by the worker for the purpose; or
(b)
Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the
necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the
deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be
executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment
through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall
act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any
further liability with respect to the amount paid.
Where the employer is authorized in writing by the employee to pay his wages to a member of his family;
(b)
Where payment to another person of any part of the employees wages is authorized by existing law, including payments for the insurance
premiums of the employee and union dues where the right to check-off has been recognized by the employer in accordance with a
collective agreement or authorized in writing by the individual employees concerned; or
(c)
Sec. 6. Wages of deceased employee. The payment of the wages of a deceased employee shall be made to his heirs without the necessity of
intestate proceedings. When the heirs are of age, they shall execute an affidavit attesting to their relationship to the deceased and the fact that they
are his heirs to the exclusion of all other persons. In case any of the heirs is a minor, such affidavit shall be executed in his behalf by his natural
guardian or next of kin. Upon presentation of the affidavit to the employer, he shall make payment to the heirs as representative of the Secretary of
Labor and Employment.
SUMMARY
GR: Wages shall be paid directly to the workers to whom they are due.
EXCEPTIONS:
1. In cases of force majeure rendering such payment impossible;
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Where the employer is authorized in writing by the employee to pay his wages to a member of his family;
Where payment to another person is authorized by existing law;
In case of death of the employee.
TIME/FREQUENCY OF PAYMENT
ART. 103. Time of payment. - Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If
on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be
made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with
less frequency than once a month.
The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following
conditions, in the absence of a collective bargaining agreement or arbitration award:
(1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed;
(2) That final settlement is made upon completion of the work.
Rule VIII, Book III, Sec 3
Sec. 3. Time of Payment.
(a) Wages shall be paid not less often than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days, unless
payment cannot be made with such regularity due to force majeure or circumstances beyond the employers control, in such case the
employer shall pay the wages immediately after such force majeure or circumstances have ceased.
(b)
In case of payment of wages by results involving work which cannot be finished in two (2) weeks, payment shall be made at intervals not
exceeding sixteen (16) days in proportion to the amount of work completed. Final settlement shall be made immediately upon completion
of the work.
General Rule: at least every 2 weeks or twice a month at intervals not exceeding 16 days.
Exception: in cases of force majeure or in circumstances beyond the employers control, wherein the payment of wages on or within
the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstance
have ceased.
The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the
following conditions, in the absence of a collective bargaining agreement or arbitration award:
(1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed;
(2) That final settlement is made upon completion of the work.
UPDATES
Art. 82 applied in 2006 Penaranda , excluded shift engineer from overtime and premium pay as he is considered officer and member of managerial staff
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The normal hours of work of any employee shall not exceed eight (8) hours a day.
Which includes:
1. All time during which an employee is required to be on duty or to be at a prescribed workplace.
2. All the time during which an employee is suffered or permitted to work.
3. Rests periods of short duration during working hours.
4. Meal period of less than 20 minutes, since it becomes only a rest period and thus considered as working time.
5. The reasonable time to withdraw their wages from the bank facility if done working hours, if payment of wages is through banks,
ATM or by check.
Attendance during Seminars:
Not compensable if:
1. Attendance is outside employees regular working hours
2. Employee is not work productive
3. Attendance is voluntary
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2010 Revised Manual of Regulations for Private Schools in Basic Education (DepEd Order No. 88, series of 2010)
Section 93. Regular Hours and Teaching Hours. The regular hours of work of school personnel in all private schools shall not exceed eight
hours a day.
The Normal teaching hours in the different levels of instruction shall be issued through regulation by the Secretary on the basis of course
requirements and the maximum load of teaching personnel.
HOUSEHELPERS
Art. 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month,
with pay.
HOURS WORKED
Art. 84. HOURS WORKED Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a
prescribed workplace, and (b) all time during which an employee is suffered or permitted to work.
Rest periods of short durations during working hours shall be counted as hours worked.
Through the use of bundy clock by means of which each one can punch his individual card the time of arrival for and departure from work;
Through the employment of a timekeeper whose duty is to time in and out each and every employee in a record book; and
By furnishing them individually with a daily time record form wherein they can note the time of their respective arrivals for and departure
from work
SEC. 9. Time records of executives. Managerial employees, officers or members of the managerial staff, as well as nonagricultural field
personnel, need not be required to keep individual time records, provided, that a record of their daily attendance or the days they actually reported
for work is kept and maintained by the employer.
SEC. 10. Records of workers paid by results. Where the employees are paid on piece, pakiaw, takay, task, commission or other nontime
basis, the employer shall keep and maintain their production records showing their daily output, gross earning and the actual number of working
hours spent by the employees on the job bearing the signature or thumbmark of the employee concerned. Where, however, the minimum output
rates of nontime workers have been fixed by the Department of Labor or through certified collective agreements, or are in compliance with the
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REST PERIODS
Meal Period
Art. 85. MEAL PERIODS Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his
employees not less than sixty (60) minutes time-off for their regular meals.
Under this article the meal period should not be less than 60 minutes, in which case it is time-off or non-compensable time.
The Implementing Rules of Book III, Rule I, Sec 7, allows the meal time to be less than 60 minutes, under specified cases.
But such shortened meal time (say 30 minutes) should be with full pay, and of course, the time when the employee cannot
eat, because he is still working, should also be paid.
The employer is required to give his employees not less than 60 minutes or 1 hour for their regular meals everyday. The LC
does not specify as to what specific hour of the day the meal period are to be given.
The 60-minute meal period is not compensable because during this time, the worker does not work.
To shorten meal time to less than 20 minutes is not allowed, if the so called meal time is less than 20 minutes, it becomes
only a rest period, and under the same section 7, is considered work time.
Q: Is it possible to reduce the meal period to less than 60 minutes? If so, under what instances?
A: YES, under Section 7, Rule I, Book III.
Shortened Meal Period
IMPLEMENTING RULES OF BOOK III: Rule I
Sec. 7. Every employer shall give his employees, regardless of sex, not less that one (1) hour time-off for regular meals, except in the
following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter
meal period is credited as compensable hours worked of the employee:
(a) Where the work is non-manual work in nature or does not involve strenuous physical exertion;
(b) Where the establishment regularly operates not less than sixteen hours a day;
(c) In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or
installation to avoid serious loss which the employer would otherwise suffer; and
(d) Where the work is necessary to prevent serious loss of perishable goods.
Coffee Break
IMPLEMENTING RULES OF BOOK III: Rule I
Sec. 7. Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working
time.
Short coffee breaks of 520 minutes are compensable. So if the employer gives the employees break in the morning and in
the afternoon, this time is considered compensable.
Note that the employer is not obliged by law to give this coffee break.
The employer can lessen the 60-minute meal period into 30 minutes. And this is compensable. Note that the employer shall
pay the Overtime Pay whenever proper. Note that meal periods can be reduced to less than 60 minutes but not less than 20
minutes, and it is compensable. For example, if the meal period is reduced to 59 minutes it is compensable.
The employer cannot prohibit employees from leaving the premises during the meal period of employees. The law in fact
does not require that the 60 minutes to be spent in the employers premises. There is no labor code provision to this effect.
Shortened Meal Break upon Employees Request (2004 BWC Manual on Labor Standards)
However, the employees themselves may request that their meal period be shortened so that they can leave work earlier than the
previously established schedule. In such a situation, the shortened meal period is not compensable. For instances, the established
work hours are from 8:00 am to 5:00 pm, with 12:00 noon to 1:00 pm as meal period. So that the employees could quit work at 4:30
pm, they may request, and management may agree, to shorten the meal time to thirty minutes (12:00 12:30 pm). This 30-minute
meal time is not compensable. From 12:31 to 4:30 the employee resumes work and should be paid the regular rate. Work after 4:30
is overtime. Provided, that these conditions concur:
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WORKWEEK
COMPRESSED WORKWEEK SCHEMES (DOLE Dept. Advisory No. 2, Series of 2004)
I. PURPOSE AND COVERAGE
This Advisory is being issued to guide employers and workers who may opt to adopt a mutually acceptable compressed workweek (CWW) scheme suitable to the requirements of the firm.
This Advisory may be used in all establishments except those in the (1) Construction industry; (2) health services; (3) occupations requiring heavy manual labor; or (4) occupations or workplaces in
which workers are exposed to airborne contaminants, human carcinogens, substances, chemicals or noise that exceed threshold limit values or tolerance levels for an eight-hour workday as prescribed
under existing Occupational Safety and Health Standards (OSHS).
II. OBJECTIVE:
As a matter of policy, and taking into account the emergence of new technology and the continuing restructuring and modernization of the work process, the Department of Labor and Employment
(DOLE) encourages employers and workers to enter into voluntary agreements adopting CWW schemes based on the following objectives:
1.
To promote business competitiveness and productivity, improve efficiency by lower operating costs, and reduce work-related expenses of employees;
2.
To give employers and workers flexibility in fixing hours of work compatible with business requirements and the employees need for a balanced work life; and
3.
To ensure the safety and health of employees at the workplace at all times.
For purposes of administering or enforcing existing laws and rules on work hours, overtime compensation and other relevant labor standards, DOLE shall recognize only those CWW schemes that have
been entered into consistent with this Advisory.
III. CONCEPT AND DEFINITION
The Labor Code provides that the normal work hours per day shall be eight hours. Work may be performed beyond eight hours a day provided the employee is paid for the overtime work. On the other
hand, the normal number of workdays per week shall be six days, or a total of forty-eight (48) hours based on the normal workday of eight hours. This is without prejudice to firms whose normal
workweek is five days, or a total of forty (40) hours based on the normal workday of eight hours.
For purposes of this Advisory, a CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than six days but the total number of normal work hours per week
shall remain at 48 hours. The normal workday is increased to more than eight hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal
workweek of the firm is five days.
IV. SPECIFIC GUIDELINES
Conditions. DOLE shall recognize CWW schemes adopted in accordance with the following:
1.
The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be
expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda.
2.
In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may
pose hazards to the employees health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firms safety committee that
work
beyond
eight
hours
is
within
threshold
limits
or
tolerable
levels
of
exposure,
as
set
in
the
OSHS.
3.
The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be in DOLE CWW Report Form
attached to this Advisory.
Effects. A CWW scheme which complies with the foregoing conditions shall have the following effects:
1.
Unless there is a more favorable practice existing in the firm, work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day
shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium.
2.
Consistent with Articles 85 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing herein shall impair the right of
employees to rest days as well as to holiday pay, rest day pays or leaves in accordance with law or applicable collective bargaining agreement or company practice.
3.
Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The
reversion shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable
period of time.
GUIDELINES ON THE ADOPTION OF FLEXIBLE WORK ARRANGEMENTS (DOLE Dept. Advisory No. 2, Series of 2009)
I.
PURPOSE
This Advisory is being issued to assist and guide employers and employees in the implementation of various flexible work arrangements as one of the coping mechanisms and remedial measures
in times of economic difficulties and national emergencies. Adoption of flexible work arrangements is considered as a better alternative than the outright termination of the services of the employees
or the total closure of the establishment. Anchored on voluntary basis and conditions mutually acceptable to both the employer and the employees, it is recognized as beneficial in terms of reduction
of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries.
II.
CONCEPT
The Department recognizes the desirability and practicality of flexible work arrangements that may be considered by employers after consultation with the employees, taking into account the
adverse consequence of the situation on the performance and financial condition of the company.
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2.
3.
4.
5.
6.
Compressed Workweek refers to one where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week shall remain. The normal
workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the
normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004.
Reduction of Workdays refer to one where the normal workdays per week are reduced but should not last more than six months.
Rotation of Workers refer to one where the employees are rotated or alternately provided work within the workweek.
Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any.
Broken-time schedule refers to one where the work schedule is not continuous but the work-hours within the day or week remain.
Flexi-holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such
arrangement.
7.
Under these flexible work arrangements, the employers and the employees are encouraged to explore alternative schemes under any agreement and company policy or practice in order to
cushion and mitigate the effect of the loss of income of the employees.
IV.
The differences shall be treated as grievances under the applicable grievance mechanism of the company.
If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which has jurisdiction over the workplace for appropriate
conciliation.
To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work
arrangement was voluntarily adopted.
V.
NOTICE REQUIREMENT
Prior to its implementation, the employer shall notify the Department through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the above flexible work
arrangements. The notice shall be in the Report Form attached to this Advisory.
The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance.
GUIDELINES IN THE IMPLEMENTATION OF FLEXIBLE WORK ARRANGEMENTS AND THE EXEMPTION FROM THE NIGHTWORK
PROHIBITION FOR WOMEN EMPLOYEES IN THE BUSINESS PROCESS OUTSOURCING (DOLE Dept. Advisory No. 4, series of 2010)
I.
PURPOSE
In view of the rapid technological innovations, the continuing streamlining and transformation of the work processes brought about by the globalization phenomena, this Advisory is being
issued to assist and guide employers and employees in the implementation of various flexible work arrangements and the exemption from the nightwork prohibition for women employees under
Article 130 of the Labor Code of the Philippines, as amended. The adoption of flexible work arrangements is being considered to improve business competitiveness and productivity and give employers
and employees flexibility in fixing hours of work compatible with business requirements and the employees need for balanced work life. On the other hand, the exemption from the nightwork
prohibition is recognized under Article 131 of the Labor Code under analogous cases and taking into account the constitutional mandate for equal employment opportunities and the right against
employment discrimination.
IMPLEMENTATION OF FLEXIBLE WORK ARRANGEMENTS
II.
CONCEPT
Flexible work arrangements refer to alternative arrangements or schedule other than the traditional or standard workhours, workdays and workweek.
The effectivity and implementation of any of the flexible work arrangements shall be based on voluntary agreements between the employer and the employees.
The adoption of the flexible work arrangements provided herein shall in no case result in diminution of existing benefits of the employees.
III.
2.
3.
Compressed Workweek refers to one where the normal workweek is reduced to less than six (6) days but the total number of work hours of 48 hours per week shall remain. The normal
workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the
normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004.
Gliding or Flexi-time schedule refers to one where the employees are required to complete the core workhours in the establishment but are free to determine their arrival and departure
time.
Flexi-holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such
arrangement.
The employers and the employees may likewise explore other alternative work arrangements under any agreement and company policy or practice in accordance with existing laws and
regulations.
IV.
ADMINISTRATION
The parties to the flexible work arrangements shall be primarily responsible for its administration. In case of differences of interpretation, the following guidelines shall be observed:
1.
2.
3.
The differences shall be treated as grievances under the applicable grievance mechanism of the company.
If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which has jurisdiction over the workplace for appropriate
conciliation.
To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work
arrangement was voluntarily adopted.
EXEMPTION FROM THE NIGHTWORK PROHIBITION FOR WOMEN EMPLOYEES UNDER ARTICLE 130 OF THE LABOR CODE, AS AMENDED
Women employees may be allowed to work during nighttime in accordance with Article 131 of the Labor Code, subject to the limitation that the female employees should not be below
eighteen (18) years of age.
Employers are likewise required, among others, to provide safe and healthful working conditions, and adequate/reasonable facilities such as sleeping/resting quarters in the establishment.
Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and
specify, in the case of pregnant employees, the period of the pregnancy that they can safely work.
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HEALTH PERSONNEL
Art. 83. HOURS OF WORK. xxxx
Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed
capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day for five (5) days a week, exclusive of time for meals,
except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours which case they shall be entitled
to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, health
personnel shall include resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical
technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.
Note: interns are not included. They are usually not employees of the hospital
Medical secretaries are also considered clinic personnel
The customary practice of requiring resident physicians to work for 24 hours a day violates the limitations prescribed by
Article 83 and would not be permissible even if the resident physicians were paid additional compensation. It cannot
override the purpose of the limitation which is to safeguard the health and interest of hospital workers. However, the fortyhour workweek would not be applicable if there is a training agreement between the resident physician and the hospital
and the training program is duly accredited or approved by the appropriate government agency. In such case, there is no
employer-employee relation on account of the approved training program pursuant to Section 15, Rule X of the Rules and
Regulations Implementing the Labor Code.
The Manila Medical Society is not embraced in the definition and is accordingly not limited to a forty-hour workweek
because it does not perform any diagnosis, treatment and care of patients. Nonetheless, its exclusion from the definition
will not confer upon it the right to change its present practice relative the Center in allowing its employees to work half-day
during Saturdays and in giving them additional compensation should they work beyond four (4) hours should be retained.
Health Personnel in government service are excluded from coverage of Articles 82 to 96. Their work hours, night shift
differential pay, and other employment benefits are specified in RA 7305.
The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such
rules and regulations as the Secretary of Labor may provide. However, the employer shall respect the preference of employees as to their
weekly rest day when such preference is based on religious grounds. (to accommodate members of the 7th day Adventists and others)
The rest day need not be a Sunday, because the Blue Sunday Law no longer finds application in the present.
Section 3. Weekly Rest Day. Every employer shall give his employees a rest period of not less than 24 hours after every 6 consecutive normal work
days.
Section 4. Preference of employee. The preference of the employee as to his weekly day of rest shall be respected by the employer if the same is
based on religious grounds. The employee shall make known his preference to the employer in writing at least seven (7) days before the desired
effectivity of the initial rest day so preferred.
Where, however, the choice of the employees as to their rest day based on religious grounds will inevitably result in serious prejudice
or obstruction to the operations of the undertaking and the employer cannot normally be expected to resort to other remedial
measures, the employer may so schedule the weekly rest day of their choice for at least two (2) days in a month.
Q: What happens on the seventh day?
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Social workers,
Laboratory technicians,
Paramedical technicians,
Psychologists,
Midwives,
Attendants, and
All other hospital or clinic personnel.
In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic, or other
disaster or calamity, to prevent loss of life or property, or in case of force majeure or imminent danger to public safety;
In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer
would otherwise suffer;
In the event of abnormal pressure or work due to special circumstances, where the employer cannot be ordinarily be
expected to resort to other measures;
To prevent serious loss of perishable goods;
Where the nature of the work is such that the employees have to work continuously for 7 days in a week or more, as in the
case of the crew members of a vessel to complete a voyage and in other similar cases;
When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of
work is dependent thereon.
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Attendance at lectures, meetings, training programs shall NOT be counted as working time if the following conditions are
met:
8. Attendance is outside of the employees regular working hours.
9. Attendance is in fact voluntary.
10. The employee does not perform any productive work during such attendance.
GUIDELINES IN THE COMPUTATION OF ESTIMATED EQUIVALENT MONTHLY RATES OF MONTHLY-PAID AND DAILY-PAID
EMPLOYEES (DOLE Dept. Advisory No. 1, Series of 2010)
With the passage of Republic Act No. 9849 (An Act Declaring the Tenth Day of Zhul Hijja, the Twelfth Month of the Islamic Calendar, a National Holiday for the observance
of Eidul Adha, further amending for the prupose Section 26, Chapter 7, Book I of Executive Order No. 292, otherwise known as the Administrative Code of 1987, as
amended), the suggested formulas in determining the estimated equivalent monthly rates of monthly-paid and daily-paid employees are modified as follows:
For monthly-paid employees:
Factor 365 days in a year is used in determining the equivalent annual and monthly salary of monthly-paid employees. To compute their Estimated Equivalent
Monthly Rate (EEMR), the procedure is as follows:
(Applicable Daily Rate x 365) / 12 = EEMR
Where 365 days/ year = 298 ordinary working days
52 rest days
12 regular holidays
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For those who are required to work everyday, including Sundays or rest days, special days, and regular holidays
[Applicable Daily Rate x 393.50] / 12 = EEMR
Where 393.50 days / year = 298 ordinary working days
24 12 regular holidays x 200%
67.50 52 rest days x 130%
3.90 3 special days x 30%
393.50 Total equivalent no. of days in a year
2.
For those who do not work and are not considered paid on Sundays or rest days
[Applicable Daily Rate x 313] / 12 = EEMR
Where 313 days / year = 298 ordinary working days
12 regular holidays
3 special days
313 Total equivalent no. of days in a year
3.
For those who do not work and are not considered paid on Saturdays and Sundays or rest days
[Applicable Daily Rate x 261] / 12 = EEMR
Where 261 days / year = 246 ordinary working days
12 regular holidays
3 special days
261 Total equivalent no. of days in a year
UPDATES
Reduction of work days from 6 days a week to 3 days on rotation basis considered an illegal compressed workweek , held in 2007 Linton Commercial Co. as it
constitutes illegal reduction of work hours resulting to unsettling diminution of the periodic pay for a protracted period es pecially here where there is no adequate
proof of financial losses ; see also 2009 Rosa , where reduction of workdays , without proof of economic loss , amounts to constructive dismissal as it lowers salary of
workers
Waiver of overtime pay under a compressed workweek is valid, held in 2008 Bisig Manggagawa sa Tryco.
The employer has the prerogative to determine the employees rest day. When it does, the employer can change the employees rest day only after giving a NOTICE,
and the change will take effect 1 week after such notice.
o
o
The employer has to notify the employees of any change in the rest day.
The change will have to take effect at least 7 days after the change of schedule.
This is so as not to cause inconvenience on the part of the employees who may expect to be enjoying their rest day on a particular day. If the employer decides to
change it because that is his prerogative, he still has to inform his employees of the change in advance.
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Execute, under general supervision, work along specialized or technical lines requiring special training, experience
or knowledge; or
Execute, under general supervision, special assignments and tasks.
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OVERTIME WORK
GENERAL RULE:
Labor Code
Article 87. Overtime Work. Work may be performed beyond eight (8) hours a day provided that the EE is paid for the overtime work an additional
compensation equivalent to his regular wage plus at least 25% thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an
additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least 30% thereof.
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EXCEPTIONS:
Article 89. Emergency Overtime Work. Any employee may be required by the employer to perform overtime work in any of the following cases:
(a) When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive;
(b) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in
the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity;
(c) When there is urgent work to be performed on machines, installation or equipment, in order to avoid serious loss or damage to the employer or
some other cause of similar nature;
(d) When the work is necessary to prevent loss or damage to perishable goods;
(e) Where the completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the
business or operations of the employer.
Any employee required to render overtime work under this Article shall be paid additional compensation required in this Chapter.
DAY
For purposes of Article 87, a day (or daily) is understood to be THE 24 HOUR PERIOD, WHICH COMMENCES FROM THE TIME THE
EMPLOYEE REGULARLY STARTS TO WORK. It is not necessarily the ordinary calendar day from 12 o clock midnight to 12 oclock
midnight unless the employee starts working at 12 midnight, which is unlikely in which case the start of the 24-hour period in
computing his work day coincides with the start of the calendar day (like Monday, Tuesday, etc.) from 12 oclock midnight to 12
oclock midnight unless the employee starts working at 12 midnight, in which case the start of the 24-hour period in computing his
work day coincides with the start of the calendar day. Thus, if an employee regularly works from 8:00 am to 4:00 pm, the work day of
such employee is from 8:00 am to 8:00 am the following day. In other words, the period from 9:00 am to 4:00 pm is the regular
working hours or shift of the employee while the period from 8:00 am to 8:00 am the following day is his work day. Any work in
excess of eight hours within the twenty-four-hour period is considered as overtime work regardless of whether the work covers two
calendar days. Conversely, any work in excess of eight hours not falling within the twenty-four-hour period is not considered as
overtime work.
Any work in excess of 8 hours within the 24 hour period is considered as overtime work regardless of whether the work
covers two calendar days.
The minimum working hours fixed by the act need not be continuous to constitute as legal working day of 8 hours as long
as the 8 hours is within a work day.
Work in excess of 8 hours within a work day is considered as overtime regardless of whether this is performed in a work
shift other than at which the employee regularly works.
Broken Hours of Work. The minimum normal working hours fixed by the Act need not be continuous to constitute as the legal
working day of eight hours as long as the eight hours is within a work day. For example, an employee may be required to work four
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Where a worker incurs undertime hours during his regular daily work, said undertime hours should not be offset against the
overtime hours. If it were otherwise, the unfairness would be evident from the fact that the undertime hours represent only the
employees hourly rate of pay and the appropriate overtime premium such that, not being of equal value, offsetting the undertime
hours against the overtime hours would result in the undue deprivation of the employees overtime premium. The situation is even
more unacceptable where the undertime hours are not only offset against the overtime hours but are also charged against the
accrued leave of the employee, for under this method the employee is made to pay twice for his undertime hours because his leave is
reduced to that extent while he is made to pay for the undertime hours with work beyond the regular working hours. The proper
method should be to deduct the undertime hours from the accrued leave but to pay the employee the overtime compensation to
which he is entitled. Where the employee has exhausted his leave credits, his undertime hours may simply be deducted from his
days wage, but he should still be paid his overtime compensation for work in excess of eight hours a day.
This ruling in NWSA forbids offsetting the overtime work on the same day, although what Article 88 prohibits is offsetting
on another day. It may be said therefore that the offsetting of undertime work by overtime work, whether on the same or on another
day, is prohibited by jurisprudence and by statute.
Those of the government and any of the political subdivision, including government-owned and controlled corporation;
(b)
Those of retail and service establishments regularly employing less than ten (10) workers;
(c)
(d)
(e)
Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on
task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time
consumed in the performance thereof.
For work done on rest day and special holidays, the employer must pay the employee:
(1) his regular remuneration (100%)
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PART-TIME WORKERS
With regard to service incentive leave, the Implementing Rules and Regulations of the Labor Code, as amended, provides that every
employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
Thus, a part-time worker is entitled to service incentive leave whether the service within 12 months is continuous or broken or where
the working days in the employment contract as a matter of practice or policy is less than 12 months. The availment and
commutation of the same can be proportionate to the daily work rendered and the regular daily salary, respectively.
Teachers of private schools on contract basis are entitled to service incentive leave
th
While piece-rate employees are entitled to minimum wage, COLA and 13 -month pay, they are not entitled to service incentive
leave
It is the burden of proof of the employer to prove that he is excluded from coverage of the service incentive leave
HOLIDAY PAY
Regular Holidays
Article 94. Right to holiday pay.
(a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishment regularly employing less
than ten workers;
(b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his
regular rate; and
(c) As used in this Article, "holiday" includes: New Year's Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of
June, last Sunday of August, first of November, the thirtieth of November, the twenty-fifth and the thirtieth of December, thirty-first of
December, and the day designated by law for holding a general election.
Definition
Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. The gift for a days pay is
limited to each of the twelve regular holidays. It is not demandable for any other kind of nonworking day, except that there are place
where Muslim holidays also have to be observed.
Purpose
The purpose of a holiday pay is to prevent diminution of the monthly income of the workers on account of work interruptions declared
by the state. In other words, although the worker is forced by law to take a rest, he is not deprived of what he should earn.
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Regular Holidays
New Year's Day January 1
Maundy Thursday Movable Date
Good Friday Movable Date
Eidul Fitr Movable Date
Eidul Adha Movable Date
Araw ng Kagitingan (Bataan and Corregidor Day) Monday nearest April 9
Labor Day Monday nearest May 1
Independence Day Monday nearest June 12
National Heroes Day Last Monday of August
Bonifacio Day Monday nearest November 30
Christmas Day December 25
Rizal Day Monday nearest December 30
(b)
(c)
In the event the holiday falls on a Wednesday, the holiday will be observed on the Monday of that week. If the holiday falls on a
Sunday, the holiday will be observed on the Monday that follows.
Provided, That for movable holidays, the President shall issue a proclamation, at least six (6) months prior to the holiday concerned, the specific date
shall be declared as a nonworking day. (As amended by RA 9177, RA 9292, & RA 9849)
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All Muslim government officials and employees in places other than those enumerated under Article 170 shall also be excused from
reporting to office in order that they may be able to observe Muslim holidays.
The President of the Philippines may, by proclamation, require private offices, agencies or establishments to excuse their Muslim
employees from reporting for work during a Muslim holiday without reduction in their usual compensation.
Every employee shall be paid a night shift differential of not less than ten percent of his regular wage for each hour of work
performed between ten o'clock in the evening and six o'clock in the morning (10 pm 6am).
Rationale
Night work cannot be regarded as desirable, either from the point of view of the ER or the wage earner. It is uneconomical unless
overhead costs are unusually heavy. Frequently the scale of wages is higher an inducement to employment on the night shift, and the
rate of production is generally lower (Shell Co. vs. NLU)
Night shift differential NOT WAIVABLE
The waiver rule is not applicable in night shift differential. The additional compensation for nighttime work is founded on public
policy, hence the same cannot be waived (Artcle 6, NCC.) (Mercury Drug Co., Inc. vs. Nardo Dayao)
Burden of Proof of Payment
Thus, the burden of proving that payment of such benefit has been made rests upon the party who will suffer if no evidence at all is
presented by either party. (Seaborne Carriers Corp vs. NLRC)
SERVICE CHARGES
Labor Code
Article 96. Service charges. All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five
percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among
them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages.
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UPDATES
Use of 365 , 314 & 251 divisor daily paid workers ; applicability of no work , no pay principle to monthly paid employees , held in 2004 Odango ; see 2007 Ley te IV
Electric Cooperative , Inc , where the employees are required to work only from Monday to Friday , the minimum allowable divisor is 263 which is arrived at by
deducting 51 un-worked Sundays and 51 un-worked Saturdays from 365 days . Considering that the employees are considered paid with their holiday pay.
2005 American Wire & Cable Employees Union , where no violation of the principle on non diminution of benefits was held if grant of service award, additional
premium pay and Christmas party was given out of employers generosity and not considered part of employees compensation
2007 Manila Jockey Club Employees Labor Union-PTGWO , involving change of work schedule in the CBA from 9 a.m. to 5 p.m. to 1 p.m. to 8 p.m., due to change in
the program of horse races is management prerogative. The overtime pay was not given consistently, deliberately and unconditionally but as a compensation for
additional services rendered. Thus, it is not a benefit within the meaning of Article 100; also 2007 San Miguel Corp., where overtime is not a benefit because its
requires rendition of additional service;, and is not freely given especially here where no proof that the supervising security guards were obliged by the company to
render overtime work. The requirement of rendering additional service differentiates overtime pay from benefits such as 13 th month pay or yearly merit increase.
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EXEMPTED EMPLOYERS
a. government and any of its political subdivisions including GOCC
th
b. employers already paying their employees a 13 month pay or its equivalent
c. employers of household helpers and persons in the personal service of another in relation to such workers
d. employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount
for performing specific work
* The term its equivalent shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less
than 1/12 of the basic salary.
Sec. 4. The minimum of the 13th month pay required by law shall not be less than 1/12 of the total basic salary earned by an employee within a
calendar year. Earned because it is possible that the employee has used his vacation leave, leave without pay which should not be counted. The
employer can provide for more if he so desire.
Time of payment
th
The required 13 month pay shall be paid not later than December 24 of every year. An employer, however may give to his
th
employee of the required 13 month pay before the opening of the regular school year and the other half on or before
th
the 24 of December of every year.
In any establishment where a union has been recognized or certified as the collective bargaining agent of the employees
therein, the periodicity or frequency of payment of the 13th month pay may be the subject of agreement.
th
Workers paid by result are not entitled to this benefit only those who are paid on apiece rate basis are specifically
mentioned by express provisions of the law.
Basic salary shall include all remuneration or earnings paid by an employer to an employee for services rendered but does
not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary,
such as the cash equivalent of unused vacation and sick leave credits, overtime premium, night shift differential and holiday
pay and cost-of-living- allowance. However these salary related benefits should be included as part of the basic salary
th
related benefits should be included as part of the basic salary in the computation of the 13 month pay if by individual or
collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees.
The law provides that the only requirement is that the employee must have at least rendered 1 month of service during the
calendar year. The does not forfeit or there is no forfeiture provision under the law.
Adjudication of Claims
Non-payment of the thirteenth-month pay provided by the Decree and these rules shall be treated as money claims cases and shall
be processed in accordance with the Rules Implementing the Labor Code of the Philippines and the Rules of the National Labor
Relations Commission.
13th Month Pay for Certain Types of Employees
(a) Employees Paid by Results. Employees who are paid on piece work basis are by law entitled to the 13th month pay.
Employees who are paid a fixed or guaranteed wage plus commission are also entitled to the mandated 13th month pay, based on
their total earnings during the calendar year, i.e., on both their fixed or guaranteed wage and commission.
(b) Those with Multiple Employers. Government employees working part time in a private enterprise, including private educational
institutions, as well as employees working in two or more private firms, whether on full or part time basis, are entitled to the required
13th month pay from all their private employers regardless of their total earnings from each or all their employers.
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The covered employee is entitled to a 7-day leave with full pay (BASIC SALARY) for the first 4 deliveries/miscarriage of his
lawful spouse.
SECTION 5. Any person, corporation, trust, firm, partnership, association or entity found violating this Act or the rules and regulations promulgated
thereunder shall be punished by a fine not exceeding Twenty-five thousand pesos (P25,000) or imprisonment of not less than thirty (30)days nor
more than six (6) months.
If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be
imposed on the entity's responsible officers, including, but not limited to, the president, vice-president, chief executive officer, general manager,
managing director or partner directly responsible therefor.
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REQUISITES:
1. He is still employed at the time of the passage of the law January 7, 1993
2. His eligible for retirement
Optional 60 yrs old and at least 5 yrs of service
Compulsory beyond 65 yrs old
Mining employees:
Optional 50 yrs old and at least 5 yrs of service
Compulsory beyond 60 yrs old
Except: CBA provides retirement age lower than the statutory age for retirement.
Not Illegible:
1. Retail, service and agricultural establishments or operations employing not more than (10) employees or workers.
2. Covered by Civil Service Law
3. Dismissed from work due to just cause.
1996 LABOR ADVISORY ON RETIREMENT PAY LAW
COVERAGE
RA 7641 or the Retirement Pay Law shall apply to all employees in the private sector, regardless of their position, designation or
status and irrespective of the method by which their wages are paid. They shall include part-time employees, employees of service
and other job contractors and domestic helpers or persons in the personal service of another.
The law does not cover employees of retail, service and agricultural establishments or operations employing not more than ten (10)
employees or workers and employees of the National Government and its political subdivisions, including Government-owned and/or
controlled corporations, if they are covered by the Civil Service law and its regulations.
COMPUTATION OF RETIREMENT PAY
A covered employee who retires pursuant to RA 7641 shall be entitled to retirement pay equivalent to at least one-half (1/2) month
salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
The law is explicit that one-half month salary shall mean fifteen(15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days service incentive leaves unless the parties provides for broader inclusions. Evidently, the
law expanded the concept of one-half month salary form the usual one month salary divided by two.
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(b)
A resident of the area where the assistance is sought, as certified by the barangay captain; Provided, that if the solo parent is a transferee
from another barangay, he/she is required to secure a clearance from his/her previous barangay, indicating whether or not he/she has
availed of any benefits for solo parents, and the nature of such benefits.
With an income level equal to or below the poverty threshold as set forth by NSCB and assessed by a social worker as provided for under
Section 7 of these Rules.
ARTICLE V Benefits
Section 16. Flexible Work Schedule The employer shall provide for a flexible work schedule for solo parents: Provided, That the same shall not
affect individual and company productivity: Provided further, That any employer may request exemption from the above requirements from the
DOLE on certain meritorious grounds.
In the case of employees in the government service, flexible working hours will be subject to the discretion of the head of the agency. In no case shall
the weekly working hours be reduced in the event the agency adopts the flexible working hours schedule format (flexi-time). In the adoption of flexitime, the core working hours shall be prescribed taking into consideration the needs of the service.
Section 17. Work Discrimination No employer shall discriminate against any solo parent employee with respect to terms and conditions of
employment on account of his/her status.
Section 18. Parental Leave In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year
shall be granted to any solo parent employee who has rendered service of at least one (1) year. The seven-day parental leave shall be noncumulative.
Section 19. Conditions for Entitlement of Parental Leave A solo parent shall be entitled to parental leave provided that:
(a) He/She has rendered at least one (1) year of service whether continuous or broken at the time of the affectivity of the Act;
(b) He/She has notified his/her employer of the availment thereof within a reasonable time period; and
(c) He/She has presented a Solo Parent Identification Card to his/her employer.
Section 20. Non-conversion of Parental Leave In the event that the parental leave is not availed of, said leave shall not be convertible to cash unless
specifically agreed upon previously. However, if said leave were denied an employee as a result of non-compliance with the provisions of these Rules
by an employer, the aforementioned leave may be used a basis for the computation of damages.
Section 21. Crediting of Existing Leave If there is an existing or similar benefit under a company policy, or a collective bargaining agreement or
collective negotiation agreement the same shall be credited as such. If the same is greater than the seven (7) days provided for in the Act, the greater
benefit shall prevail.
Emergency or contingency leave provided under a company policy or a collective bargaining agreement shall not be credited as compliance with the
parental leave provided for under the Act and these Rules.
ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDREN ACT OF 2004 (R.A 9262)
Battered Womans Leave
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GUIDELINES GOVERNING THE IMPLEMENTATION OF THE SPECIAL LEAVE BENEFITS FOR WOMEN EMPLOYEES IN THE PRIVATE
SECTOR (DOLE Department Order No. 112-11, Series of 2011)
Section 1. Definition of terms. As used in these Rules, the following terms shall mean:
(a)
Special leave benefits for women refers to a female employees leave entitlement of two (2) months with full pay from her employer based on her gross
monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at
least six (6) months for the last 12 months. This two-month leave is in addition to leave privileges under existing laws.
(b)
Gynecological disorders refers to disorders that would require surgical procedures such as, but not limited to, dilatation and curettage and those involving
female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician.
For purposes of the Act and the Rules and Regulations of this Act, gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy
Section 2. Conditions to entitlement of special leave benefits. Any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she has
complied with the following conditions:
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She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery;
(b)
She has filed an application for special leave in accordance with Section 3 hereof.
(c)
She has undergone surgery due to gynecological disorders as certified by a competent physician.
Section 3. Application for special leave. The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of
surgery, or within such period as may be provided by company rules and regulations or by collective bargaining agreement.
Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form
within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her
application using the prescribed form.
Section 4. Availment. Special leave benefits shall be granted to the qualified employee after she has undergone surgery, without prejudice to an employer allowing an
employee to receive her pay before or during the surgery.
Section 5. Benefits. The employee is entitled to full pay for two months based on her gross monthly compensation. Gross monthly compensation refers to the monthly
basic pay plus mandatory allowances fixed by the regional wage boards.
Section 6. Non-commutation of benefits. This special leave shall be non-cumulative and non-convertible to cash unless otherwise provided by a collective bargaining
agreement (CBA).
Section 7. Enforcement and monitoring. The Labor Inspectorate of the DOLE Regional Offices shall be responsible for the enforcement and monitoring of this Guideline.
THE ROOMING-IN AND BREAST-FEEDING ACT OF 1992 (RA 7600) AS AMENDED BY EXPANDED BREASTFEEDING PROMOTION ACT
OF 2009 (RA 10028)
Section 4. Applicability. The provisions in this Chapter shall apply to all private enterprises as well as government agencies, including their subdivisions and
instrumentalities, and government-owned and -controlled corporations.
Upon application to, and determination by, the Secretary of the Department of Labor and Employment for the private sector, and the Chairperson of the Civil Service
Commission for the public sector, all health and non-health facilities, establishments and institutions may be exempted for a renewable period of two (2) years from Section
6 of this Act where the establishment of lactation stations is not feasible or necessary due to the peculiar circumstances of the workplace or public place taking into
consideration, among others, number of women employees, physical size of the establishment, and the average number of women who visit.
All health and non-health facilities, establishments or institutions which are exempted in complying with the provisions of this Act but nevertheless opted to comply are
entitled to the benefits herein stated: Provided, That they give their employees the privilege of using the same.
Sec. 11. Establishment of Lactation Stations. It is hereby mandated that all health and non-health facilities, establishments or institutions shall establish lactation stations.
The lactation stations shall be adequately provided with the necessary equipment and facilities, such as: lavatory for hand-washing, unless there is an easily-accessible
lavatory nearby; refrigeration or appropriate cooling facilities for storing expressed breastmilk; electrical outlets for breast pumps; a small table; comfortable seats; and
other items, the standards of which shall be defined by the Department of Health. The lactation station shall not be located in the toilet.
In addition, all health and non-health facilities, establishments or institutions shall take strict measures to prevent any direct or indirect form of promotion, marketing,
and/or sales of infant formula and/or breastmilk substitutes within the lactation stations, or in any event or circumstances which may be conducive to the same.
Apart from the said minimum requirements, all health and non-health facilities, establishments or institutions may provide other suitable facilities or services within the
lactation station, all of which, upon due substantiation, shall be considered eligible for purposes of Section 14 of this Act.
Sec. 12. Lactation Periods. Nursing employees shall granted break intervals in addition to the regular time-off for meals to breastfeed or express milk. These intervals,
which shall include the time it takes an employee to get to and from the workplace lactation station, shall be counted as compensable hours worked. The Department of
Labor and Employment (DOLE) may adjust the same: Provided, That such intervals shall not be less than a total of forty (40) minutes for every eight (8)-hour working
period.
Sec. 21. Sanctions. Any private non-health facility, establishment and institution which unjustifiably refuses or fails to comply with Sections 6 and 7 of this A ct shall be
imposed a fine of not less than Fifty thousand pesos (Php50,000.00) but not more than Two hundred thousand pesos (Php200,000.00) on the first offense.
On the second offense, a fine of not less than Two hundred thousand pesos (Php200,000.00) but not more than Five hundred thousand pesos (Php500,000.00).
On the third offense, a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) and the cancellation or
revocation of the business permits or licenses to operate.
In all cases, the fine imposed should take into consideration, among others, number of women employees, physical size of the establishment, and the average number of
women who visit.
In addition, the Secretary of Health is hereby empowered to impose sanctions on health institution for the violation of this Act and the rules issued thereunder. Such
sanctions may be in the form of reprimand or censure and in case of repeated willful violations, suspension of the permit to operate of the erring health institution.
Heads, officials and employees of government health and non-health facilities, establishments and institutions who violate this Act shall further be subject to the following
administrative penalties:
First offense - Reprimand;
Second offense - Suspension for one (1) to thirty (30) days; and
Third offense - Dismissal.
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UPDATES
Drivers paid on boundary basis excluded from 13th month pay , held in 2004 R&E Transport ; prorating of 13 th month pay of workers for period while they were on
strike , held in 2005 Honda Phils. Was illegal due to company CBA making no such qualification, citing 1993 Davao Fruits
Commission included in basic salary ,held in 1995 Phil. Duplicator ; however excluded in 1993 Boie Takeda Chemicals ; but see 2007 Reyes , citing the 1993 case of
Boie Tkeda Chemicals & 1995 case of Phil. Duplicators , commissions received by a unit manager cannot be considered in the computation of the retirement pay and
the 13th month pays as they are in the form of profit sharing payment s and had no clear , direct or necessary relation to the amount of work he actually performed .
Here the unit manager does not enter into actual sale transactions , and the commissions were not regularly received by him .; and see also 2008 Letran Calamba
Faculty & Employees Association, where overload pay should be excluded from the 13th month pay ; as it is paid for additional work in excess of the regular teaching
load , similar to overtime pay ; this rule applies regardless whether the overload is an additional or extra teaching load has been completed . Hence, any pay given as
compensation for such additional work should be considered as extra and not deemed as part of the regular or basic salary.
King of kings Transport, Inc. vs. MAMAC Section 3 of the Rules Implementing Presidential Decree No. 85 provides that 13th month pay shall not apply to Employers
of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time
consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as
such workers are concerned.
Notably in the said case, it was established that the drivers and conductors praying for 13th-month pay were not paid purely on commission. Instead, they were
receiving a commission in addition to a fixed or guaranteed wage or salary.
Reyes vs. NLRC Overriding commission is not properly includible in the basic salary as it must be earned by actual market transactions attributable to the claimant.
Thus, as a unit manager who supervised the salesmen under his control and did not enter into actual sale transactions, petitioners overriding commissions must not
be considered in the computation of the retirement benefits and 13th month pay.
Letran Calamba Faculty and employees Association vs. NLRC Supplementary Rules and Regulations Implementing Presidential Decree 851 is even more emphatic in
declaring that earnings and other remunerations which are not part of the basic salary shall not be included in the computation of the 13th-month pay.
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Cases involving wages, rates of pay, hours of work and other terms and conditions of employment, provided, that it is with a
claim for reinstatement
Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations;
All other claims involving an amount exceeding P5000, regardless of whether accompanied by a claim for reinstatement, except
claims for Employees Compensation, Social Security, Medicare and maternity benefits.
Wage distortion disputes not voluntary settled by the parties;
Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as
amended
Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas
deployment, including claims for actual, moral, exemplary and other forms of damages
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LETTERS OF INSTRUCTION NO. 368, January 26, 1976 (LIST OF INDUSTRIES INDISPENSABLE TO NATIONAL INTEREST)
LETTER OF INSTRUCTIONS NO. 368
TO : The Secretary of Labor
The Secretary of National Defense
The Secretary of Justice
The Solicitor General
Listing vital industries or companies or firms for purposes of PD 823 as amended.
For the guidance of workers and employees, some of whom have been led into filing notices of strikes and lockouts even in vital industries, you are hereby instructed to consider the following as vital
industries and companies of firms under PD 823 as amended:
1. Public Utilities:
A. Transportation:
1) All land, air and water companies or firms engaged in passenger, freight or tourist transport;
2) All brokerage, arrastre, warehousing companies or firms;
B. Communications:
1) Wire or wireless telecommunications such as telephone, telegraph, telex, and cable companies or firms;
2) Radio and television companies or firms;
3) Print Media companies;
4) Postal and messengerial service companies;
C. Companies engaged in electric, light, gas, steam and water power generation and distribution and sanitary service companies;
D. Other Public Utilities:
1) Ice and Refrigeration plants
2. Companies or firms engaged in the manufacture or processing of the following essential commodities:
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
Animal feeds
Cement
Chemicals and fertilizers
Drugs and medicines
Flour
Products which are classified as essential commodities in the list of National Economic and Development Authority except the following: rice, corn, some basic cuts of meat, cooking oil,
laundry soap, lumber and plywood, galvanized iron sheets, writing pads and notebooks.
Iron, steel, copper, tin plates and other basic mineral products;
Milk
Newsprint
Tires
Sugar
Textile and garments
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Commercial Banks
Savings Banks
Development Banks
Investment Banks
Rural Banks
Savings and Loans Associations
Cooperative Banks
Credit Unions
7. Companies or firms which are actually engaged in government infra-structure projects and in activities covered by Defense contracts;
8. Hospitals as defined in Section 2, Rule 1-A, Book III of the Rules and Regulations Implementing the Labor Code of the Philippines;
9. Schools and Colleges duly recognized by the Government.
The Secretary of Labor include in/or exclude from the above list any industry, firm, or company as the national interest, national security, or general welfare may require.
LABOR DISPUTES
LABOR DISPUTE includes any controversy or matter concerning terms and conditions of employment or the association or
representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate relation of employer and employee.
Kinds of Labor Disputes:
Labor Standards Disputes
eg. Disputes on the compensation, benefits, working standards
Labor Relations Disputes
1. Unfair Labor Practices coercion, company unionism, members complaint against union officers;
2. Representation disputes;
3. Bargaining disputes refusal to bargain, strike/ lockout;
4. CBA administration/ personnel policy disputes- noncompliance with grievance machinery;
5. Employment Tenure dispute non-regularization of employees, illegal termination.
INTRA-CORPORATE DISPUTES
INTRA-CORPORATE CONTROVERSY one which pertains to any of the following relationships:
(1) between the corporation, partnership or association and the public;
(2) between the corporation, partnership or association and the State in so far as its franchise, permit or license to operate is
concerned;
(3) between the corporation, partnership or association and its stockholders, partners, members or officers; and
(4) among the stockholders, partners or associates themselves.
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NOTE: The Regional Trial Courts (not SEC) now have jurisdiction under R. A. 8799 (Securities Regulation Act of 2000). Jurisdiction of
RTC includes adjudication of monetary claims of the corporate officer who was dismissed, (such as unpaid salaries, leaves, 13th
month pay, bonuses, etc.), damages and attorney's fees. (Lozon vs. NLRC, G. R. No. 107660, Jan. 02, 1995, 240 SCRA 1)
UPDATES
A money claim by the worker against the employer or vice-verse is within the exclusive jurisdiction of the labor arbiter only if there is a reasonable causal
connection between the claim asserted and the employee relation. Absent such a link, the complaint will be cognizable by the regular court of justice. (Eviota vs. CA)
A reinstatement ordered by a Labor Arbiter is self-executory. If it is ordered by the NLRC, it is not self-executory (Panuncillo vs. CAP Phil., Inc) The decision of the
NLRC needs a writ of execution. In case the decision of the Labor Arbiter includes an order of reinstatement, it shall likewise contain:
o
A statement that the reinstatement is immediately executor; and
o
Directive for the employer to submit report of compliance within 10 calendar days from the receipt of the decision.
Reasonable causal connection rule: e.g. dismissal of a Pastor of 7 Day Adventist within labor arbiters jurisdiction in Austria since it is a secular matter and not
ecclesiastical affair; claim of a member against a cooperative involving dismissal and claim for labor benefits within the jurisdiction of labor arbiter in 2001 Perpetual
Help Credit Cooperative; claim for damages by employer against employee within labor arbiters jurisdiction, held in 2000 Banez unless action is incidental a nd cause
of action arose from different source of obligation e.g. torts, or crime as held in 1999 Coca-Cola case; so is employers counterclaim against its vice president claim for
illegal dismissal although involving ownership of company car, as it arose from employment, held in 2005 Domondon; however, c laim for damages due to death of
employee aboard vessel is withtn regular courts jurisdiction as held in 2003 Tolosa; see also 2003 Eviota where action for damages by employer against employee
who resigned short of 30 day prior notice is within regular court, citing Georg Grotjahn, Singapore Airline, Medina, 1994 Dai-Ichi Electronics Manufacturing Corp.; and
also 2003 Dr. Reyes where claim of employee for paying house rental is with the regular court and not with the labor arbiter.
Intracoporate dispute and not labor dispute is with regular court as held in 2004 Velarde; see also 2009 Atty.Garcia, where removal of corporate officer is an intracorporate dispute, thus, outside the jurisdiction of the labor arbiter; note, however, that the dismissal of a vice president if not considered a corporate officer under
PD 902-A is within jurisdiction of labor arbiter and not the regular court as held in 2005 Easycall Communications Phils.
2005 Yusen Air and Sea Service Phils., involving action by employer to enjoin employee who resigned from joining competitor is with the regular court, citing 1994
Dai-Ichi
th
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VOLUNTARY ARBITRATION
Defined as a contractual proceeding whereby the parties to any dispute, in order to obtain a speedy and inexpensive final
disposition of the matter, select a judge of their own choice and by consent, submit their controversy to him for
determination.
It is the policy of the State to encourage voluntary arbitration on all labor-management disputes.
Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary
arbitration. (Implementing Rules, Book V, Rule XIX, SECTION 5.)
Under voluntary arbitration, the "judge" is named by the parties, pursuant to a voluntary arbitration clause in their
collective agreement. He is an impartial third person authorized by the parties to make a final and binding decision or
award.
A voluntary arbitrator is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged
to accept. He has no general character to administer justice for a community. He is rather part of a system of selfgovernment created by and confined to the parties. [Maurice S. Trotta, Arbitration of Labor Management Disputes,
American Management Association, New York, 1974, p. 73.]
Voluntary arbitration, indeed, is a private judicial system.
The judge is called a VOLUNTARY ARBITRATOR.
The power of voluntary arbitrator to try and decide the case is the same as that of a Labor Arbiter.
The parties can agree to select a Labor Arbiter as a voluntary arbitrator because it is as to the agreement of the parties.
Arbitration may be initiated either by 1) a Submission Agreement or 2) by a Demand or Notice invoking a collective
agreement arbitration clause. Sometimes both instruments are used in a case.
Although the contract may establish the breadth of the arbitrators power and the limits of his authority, his power may be
more sharply defined in the submission agreement.
In Philippine context, the "judge" in voluntary arbitration is called voluntary arbitrator, while that in compulsory arbitration
is labor arbiter.
Proceedings are non-litigious in nature, not governed by technical rules of procedure used in courts but due process is
always observed.
VOLUNTARY ARBITRATOR
Any person accredited by the Board as such; or
Any person named or designated in the CBA by the parties to act as their voluntary arbitrator; or
One chosen, with or without the assistance of the NCMB, pursuant to selection procedure agreed upon in the CBA; or
Any official that may be authorized by the Sec of Labor to act as voluntary arbitrator upon the written request and
agreement of the parties to a labor dispute.
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DOLE SECRETARY
Article 128. Visitorial and enforcement powers.
(a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulations officers, shall have access to
employer's records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy
therefrom, to question any employee and to investigate any fact, condition or matter which may be necessary to determine violations or
which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto.
(b)
The provisions of Article 217 of this Code to the contrary notwithstanding and in cases where the relationship of employer-employee still
exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to order and administer, after
due notice and hearing, compliance with the labor standards provisions of this Code and other labor legislation based on the findings of
labor regulation officers or industrial safety engineers made in the course of inspection, and to issue writs of execution to the appropriate
authority for the enforcement of their order, except in cases where the employer contests the findings of the labor regulation officer and
raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.
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The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an
establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health
and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the
stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall
pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation.
(d)
It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the order of the Secretary of Labor
and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or
entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the
enforcement orders issued in accordance with this Article.
(e)
Any government employee found guilty of violation of, or abuse of authority under this Article shall, after appropriate administrative
investigation, be subject to summary dismissal from the service.
(f)
The Secretary of Labor and Employment may by appropriate regulations require employers to keep and maintain such employment records
as may be necessary in aid of his visitorial and enforcement powers under this Code.
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Termination cases arising in or resulting from the interpretation and implementation of collective bargaining agreements and of company
personnel policies which were initially processed at the various steps of the plant-level Grievance Procedures under the parties collective
bargaining agreements fall within the original and exclusive jurisdiction of the voluntary arbitrator pursuant to Article 217 (c) and Article
261 of the Labor Code.
2.
Said cases, shall be dismissed by the Labor Arbiter for lack of jurisdiction and referred to the concerned NCMB Regional Branch for
appropriate action towards an expeditious selection by the parties of voluntary arbitrator or panel of arbitrators based on the procedures
agreed upon in the CBA
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In regions or offices where there are more than one designated Desk Officers, the request shall immediately be raffled by the Agency Head or Head of Office
for assignment and conduct of pre-conference assessment, evaluation, counseling and conciliation-mediation services on the same day of receipt thereof.
Section 9. Conduct of Conciliation-Mediation. The Desk Officer shall exert best efforts to assist the parties arrive at a settlement. In facilitating the conciliation meeting,
he/she shall:
a)
Clarify the issues and narrow down the disagreements;
b)
Validate the positions and the relief sought;
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Section 10. Settlement Agreement. In case of voluntary settlement, the Desk Officer shall reduce the agreement into writing, have the parties understand the contents
thereof, sign the same in his/her presence, and attest the document to be true and voluntary act of the parties. Any settlement agreement reached by the parties before
the Desk Officer shall be final and binding.
In case of partial settlement and/or partial execution of certain issues, all unresolved issues shall be referred pursuant to Section 15.
Section 11. Monitoring and Enforcement of the Settlement Agreement. The Desk Officer shall monitor the voluntary and faithful compliance with the Agreement by
causing the parties to make a report of compliance or non-compliance within two weeks from the date of agreement or agreed period of compliance. Failure of the parties
to make a report within the prescribed period shall render the Agreement deemed duly complied with absent proof to the contrary.
In case of non-compliance by the other party, the Agreement shall be endorsed by the Desk Officer to the NLRC for enforcement.
Section 12. Limitations in the Conduct of Conciliation Meetings and Appearance of Parties. Unless the parties agree otherwise, conciliation-mediation services shall be
carried out and terminated within the prescribed 30-day period.
The parties are required to appear at all times. Lawyers may be allowed to join the conference only to render advice to parties.
Failure of the complaining party to appear in two (2) scheduled meetings shall result in the issuance of Referral to the appropriate DOLE Office or Agency that has
jurisdiction over the dispute.
In case of non-appearance of the employer or the party complained of despite due notice, the complaining party may request for the issuance of the Referral or for a resetting of the conciliation-mediation conference at any day within the 30-day period.
Section 13. Pre-termination of the 30-day Mandatory Conciliation-Mediation Proceedings; Option for Voluntary/Compulsory Arbitration. Any or both parties within the
30-day period, may pre-terminate the proceedings and request Referral to the appropriate DOLE Office or Agency which has jurisdiction over the dispute, or if both parties
so agree, refer the unresolved issues to voluntary arbitration.
Section 14. Non-Settlement. In case of failure to reach an agreement within the 30-day mandatory conciliation-mediation period, the Desk Officer shall issue a Referral to
the appropriate DOLE Agency or Office which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration.
Section 15. Contents of the Referral. The Referral must contain the names and addresses of the parties, summary of unresolved issues, causes of action and the relief
sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. For voluntary arbitration, the
Referral should specify the issues to be arbitrated.
Section 16. Issuance of the Referral. The Desk Officer shall issue the Referral on the date of termination of the conciliation-mediation services either motu-proprio, in
instances provided in Sections 12 and 14, or upon request of any or both parties to the proceedings. Failure of the Desk Officer to observe the period to issue the Referral
shall be dealt with accordingly as an administrative offense.
Section 17. Confidentiality of Proceedings. Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged
communication and shall not be used as evidence in any arbitration proceedings, except the stipulation of facts voluntarily entered into by the parties pursuant to Section
9(c) hereof. The Desk Officer shall not be required to testify in any court or body regarding any confidential matter and information taken during the conciliation
proceedings conducted by them.
Section 20. Public Assistance Conciliation Unit (PACU) and Free Legal Assistance and Voluntary Arbitration Services (FLAVAS). The services rendered through the Legal
Services Public Assistance and Conciliation Unit (PACU) and the NCMB Free Legal Assistance and Voluntary Arbitration Services (FLAVAS) shall form part of the Single Entry
Approach.
Section 21. National Conciliation and Mediation Board (NCMB). Conciliation-mediation services on notices of strikes or lock-outs, or on preventive mediation cases shall
remain with the National Conciliation and Mediation Board (NCMB) and are excluded from the scope and coverage of this issuance.
Section 22. Grievance Machinery and Voluntary Arbitration. Issues arising from the interpretation or implementation of the collective bargaining agreement and those
arising from interpretation or enforcement of company personnel policies shall not be subject to the 30-day mandatory conciliation-mediation. It shall be processed
through the grievance machinery as established in the collective bargaining agreement or pursuant to Sections 1 and 2, Rule XIX of Department Order No. 40, Series of
2003, as amended, and all unresolved grievance or issues shall be submitted to voluntary arbitration.
Section 23. Regional Coordinating Council (RCC). The RCC shall immediately establish the SEAD. At the regional level, the SEAD shall be established in the Regional Branch
of the NCMB and in the Regional Arbitration Branch of the NLRC, or with two or more regional offices/branches of the DOLE as it may deem appropriate based on the
number of Desk Officers and volume of cases in the region. However, at the provincial and district levels, only one SEAD shall be established in every Provincial and District
Offices of the DOLE.
The RCC shall ensure tripartite participation in the establishment of the SEAD and in the effective implementation of this Guidelines.
DOLE RULES OF PROCEDURE OF THE SINGLE ENTRY APPROACH (February 25, 2011)
SECTION 2. DEFINITION OF TERMS. For purposes of this Rules, the following terms are defined as follows:
a)
Conciliation-Mediation refers to the process of dispute management conducted by the SEADO, in accordance with this Rules, to facilitate an amicable
settlement of labor disputes.
b)
Labor Dispute refers to all issues or conflicts that are covered by this Rules.
c)
Referral refers to the indorsement of unsettled issues through a document issued by the SEAD referring the unresolved issue/s to appropriate DOLE Office or
Agency that has jurisdiction over the dispute. It contains the names and addresses of the parties, the stipulated and admitte d facts, summary of unresolved
issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction
over the dispute.
d)
Request for Assistance (RFA) refers to the request for the conduct of conciliation-mediation under SEnA to assist the parties to arrive at a settlement
agreement.
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Requesting Party refers to an employee, group of employees, employer or union who files an RFA.
Responding Party refers to an employee, group of employees, employer or union requested to appear for conciliation-mediation under SEnA.
SECTION 3. COVERAGE. As far as practicable, this Rules shall be applicable to the following:
a)
Termination or suspension of employment issues;
b)
Claims for any sum of money, regardless of amount;
c)
Intra-union and inter-union issues except petition for certification election, after exhaustion of administrative remedies;
d)
Unfair Labor Practice;
e)
Closures, retrenchments, redundancies, temporary lay-offs;
f)
OFW cases;
g)
Occupational safety and health standards issues except those involving imminent danger situation;
h)
Issues arising from other labor and related issuances (ORLI)
i)
Any other claims arising from employer-employee relationship; and
j)
Cases falling under the administrative and quasi-judicial jurisdiction of all DOLE offices and attached agencies, including NLRC, except:
i.
Alien Employment Permit (AEP);
ii.
PRPA authority or license;
iii.
Working child permit (WCP) and violations of RA 9231 (Anti-Child Labor Law);
iv.
Registration under DO No. 18-02;
v.
POEA issued licenses under the Migrant Workers Act, as amended;
vi.
Professional license issued by the PRC;
vii.
TESDA accreditations; and
viii.
Other similar permits, licenses or registrations issued by the DOLE or its attached agencies.
RULE II
REQUEST FOR ASSISTANCE (RFA)
SECTION 1. WHERE TO FILE. The request for assistance shall be filed at any SEAD or unit in the region/provincial/district/field office where the employer principally
operates.
In case of a union or federation representing a local chapter, the request shall be made at the regional/provincial/district/field office where the union or local chapter is
registered.
Where two or more RFAs involving the same responding party are filed before different SEADs within the same region, the requests shall be endorsed to the SEAD where
the employer principally operates or where the union/local chapter is registered, as the case may be.
If the request for assistance is filed with the SEAD most convenient to the requesting party but outside the region where the employer principally operates, the SEADO may
entertain the same and proceed with the conciliation-mediation provided the same is not objected to by the employer. In case of objection, the SEADO shall immediately
refer the request to the appropriate agency.
SECTION 3. NOTICE OF CONFERENCE. Using the SEnA Notice Form, the SEADO may utilize any of the following modes of service of notice:
a)
Personal;
b)
Registered mail;
c)
Electronic mail;
d)
Courier;
e)
Facsimile; or
f)
Any other fast, economical and effective mode of notifying the parties taking into consideration the prevailing circumstances within the SEADOs area or
responsibility.
SECTION 4. COMPLAINT/REQUEST FOR ASSISTANCE THROUGH LETTER. Where a complaint/request for assistance is accounted through a letter, e-mail or referral, the
Head of Office shall respond by explaining the procedures of the SENA Program and require the personal appearance of the complainant to the SEAD pursuant to the
provision of Section 1, Rule II.
SECTION 5. ANONYMOUS COMPLAINT/REQUEST. In case of anonymous complaint/request for assistance, the SEADO shall verify the same by requesting an interview
with the responding party to facilitate compliance or correction if there are violations.
Refusal or non-appearance of the responding party on the scheduled interview would automatically result to a directive by the Head of Office to conduct inspection in the
establishment. Compliance or correction of violations uncovered during the inspection shall be facilitated through conciliation-mediation services.
RULE III
THE SINGLE ENTRY APPROACH DESK OFFICERS (SEADO)
SECTION 1. DUTIES AND RESPONSIBILITIES. The SEADO shall exert best efforts to assist the parties arrive at a settlement. In facilitating the conciliation meeting, he/she
shall:
a)
Clarify the issues and narrow down the disagreements;
b)
Validate the positions and the relief sought;
c)
Encourage parties to generate options and enter into stipulations;
d)
Offer proposals and options toward mutually acceptable solutions and voluntary settlement; and
e)
Facilitate the preparation of the settlement documents.
SECTION 2. NORM AND CONDUCT. The SEADO must at all times conduct him/herself with utmost courtesy and in an upright manner whose first and primary duty is to
implement the provisions of Department Order No. 107, Series of 2010, taking into consideration the following guiding principles:
a)
Provision of speedy, impartial, inexpensive and accessible settlement services; and
b)
Promotion of the use of conciliation-mediation as the primary mode in the settlement of all labor cases with only unresolved issues for referral to either
voluntary arbitration, if both parties so agree, or compulsory arbitration to the National Labor Relations Commission (NLRC) or appropriate agency or office of
the DOLE, as the case may be.
RULE IV
CONDUCT OF CONCILIATION-MEDIATION
SECTION 1. SCHEDULE OF CONFERENCES.
a)
The SEADO may hold as many conferences he/she deems necessary within the 30-day mandatory conciliation-mediation period to facilitate a settlement
agreement.
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The resetting of the scheduled conference shall only be allowed on meritorious grounds and if the other party concurred to the resetting. In such a case, the
conference shall be held not later than three (3) days from the original scheduled conference, and
The 30-day period may be extended for only a maximum of seven (7) days when the parties mutually agree to such extension.
SECTION 2. SEnA GUIDING PRINCIPLES IN LABOR STANDARDS AND INTER-INTRA UNION CASES. Conciliation-mediation services by the SEADO in labor standards and
inter-intra union cases shall observe the following guiding principles:
a)
In labor standards, including occupational safety and health standards issues, the conciliation-mediation services shall be towards facilitating an expeditious
and non-litigious compliance by the responding party and ensuring the implementation of corrective measures on the identified violations in the
establishment.
b)
In inter-intra union issues, the conciliation-mediation services shall be towards facilitating a settlement or an agreed expeditious process to resolve the issue/s.
It should not in any way be made as an added layer to the periods set forth in Department Order No. 40, Series of 2003, as amended.
SECTION 3. APPEARANCE OF PARTIES.
a)
The parties, as far as practicable, shall personally appear at all times.
b)
Lawyers may be allowed to join the conference only to render advice to their clients.
c)
Lawyers, agents or attorneys-in-fact may appear in behalf of any of the parties provided they could show a special power of attorney granting them authority
to represent and enter into a binding agreement for their principal.
SECTION 4. PRE-TERMINATION OF THE 30-DAY MANDATORY CONCILIATION-MEDIATION PROCEEDINGS. Any or both parties, within the 30-day period, may or cause to
pre-terminate the proceedings by:
a)
Verbal or written withdrawal by the requesting party;
b)
Withdrawal due to disinterest caused by non-appearance of the requesting party in two (2) scheduled consecutive conferences despite due notice;
c)
Request for Referral by the requesting party to the appropriate DOLE Office or Agency which has jurisdiction over the dispute;
d)
Non-appearance of the responding party in two (2) scheduled consecutive conferences despite due notice; or
e)
Non-submission/resistance of the responding party to conciliation-mediation.
SECTION 5. TERMINATION OF SEnA PROCEEDINGS. Any of the following shall render the SEnA proceedings closed and terminated:
1.
Pre-termination of the 30-day mandatory conciliation-mediation proceedings as defined in Section 4 hereof;
2.
Expiration of the 30-day mandatory period unless both parties mutually request for extension; or
3.
Upon compliance with the settlement agreement as defined in the succeeding Section.
SECTION 6. COMPLIANCE WITH SETTLEMENT AGREEMENT. Upon full compliance of the settlement agreement, the SEnA proceeding is automatically terminated.
Any of the party may submit a written report of non-compliance by the other within two (2) weeks from the date of agreement or agreed period of compliance. The
absence of the same shall render the settlement agreement deemed duly complied with absent of proof to the contrary.
SECTION 7. ISSUANCE OF REFERRAL. The Referral shall be issued without delay on the date of the termination of the conciliation-mediation services to the party who
filed the RFA. The Referral shall be submitted to the appropriate DOLE office or agency named therein, or to voluntary arbitration, if both parties so agree to submit their
unresolved issues, as compliance to the 30-day mandatory conciliation-mediation process.
The issuance of the Referral shall be motu proprio on the part of the SEADO in the following circumstances:
a)
Expiration of the 30-day mandatory conciliation-mediation period, unless there is a request for extension;
b)
Failure of the parties to reach an agreement within the 30-day mandatory conciliation-mediation period; or
c)
Failure of the requesting party to appear in two (2) scheduled consecutive conferences despite due notice.
However, in case of pre-termination of the proceedings, the issuance of the Referral shall be upon the request of any of both parties.
Delay in the issuance of the Referral by the SEADO shall be dealt with accordingly as an administrative offense.
SECTION 8. CONTENTS OF REFERRAL. The Referral must contain the names and addresses of the parties, summary of unresolved issues, causes of action and the relief
sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. For voluntary arbitration, the
Referral should specify the issues to be arbitrated.
SECTION 9. CONFIDENTIALITY OF PROCEEDINGS; MINUTES.
a)
Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged communication and shall not be used
as evidence in any arbitration proceedings, except:
1)
Stipulation of facts which form part of the settlement in accordance with Rule V hereof;
2)
Facts which are of common knowledge; or
3)
Waiver of confidentiality
b)
Any contents appearing in the minutes of the proceedings (SENA Minutes Form) or personal notes taken by the SEADO or the parties during the proceedings
are subject to the limitations provided under paragraph (a).
c)
Voice or video recorders or any electronic recording device shall be prohibited during the proceedings.
RULE V
SETTLEMENT OF DISPUTE
SECTION 1. SETTLEMENT AGREEMENT.
a)
In case of voluntary settlement, the SEADO shall reduce the agreement into writing using the SENA Settlement Form, indicating all stipulations agreed upon by
the parties.
b)
Where the settlement agreement involves monetary claims, the SEADO shall endeavor to facilitate the settlement in full and shall attach a duly accomplished
waiver and quitclaim to the settlement agreement as proof of full compliance
c)
Where the payment of monetary claims is agreed to be in several installments or tranches, the waiver and quitclaim shall be executed only upon payment of
the last installment.
d)
In case of partial settlement, only those stipulations relating to issues settled shall be stated in the agreement while the unresolved issues shall be referred to
appropriate DOLE Office or Agency.
e)
The SEADO shall, as far as practicable, make us of the language or dialect understood by both parties.
f)
The SEADO is duty bound to explain to the parties the contents of their settlement agreement before they sign the same. He/she shall also sign the settlement
agreement in the parties presence and attest the document to be the true and voluntary act of the parties.
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Reduce to writing
using SEAD Form
PFO-District
Head Assigns
the RFA/CM to
SEAO
Desk Officer
notifies both
parties
Pre-termination
Verbal or written withdrawal by the
requesting party;
Withdrawal due to disinterest caused by nonappearance of the requesting party in two (2)
scheduled consecutive conferences despite
due notice;
Request for Referral by the requesting party
to the appropriate DOLE Office or Agency
which has jurisdiction over the dispute;
Non-appearance of the responding party in
two (2) scheduled consecutive conferences
despite due notice; or
Non-submission/resistance of the responding
party to conciliation-mediation.
N
Voluntarily
Settled
Y
RFA/CM
Closed
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Where two (2) or more Regional Arbitration Branches have jurisdiction over the workplace of the complainant or petitioner, the Branch that first acquired
jurisdiction over the case shall exclude the others.
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When venue is not objected to before the filling of position papers such issue shall be deemed waived.
d)
The venue of an action may be changed or transferred to a different Regional Arbitration Branch other than where the complaint was filed by written
agreement of the parties or when the Commission of Labor Arbiter before whom the case is pending so orders, upon motion by the proper party in meritorious
cases.
e)
Cases involving overseas Filipino workers may be filed before the Regional Arbitration Branch having jurisdiction over the place where the complainant resides
or where the principal office of any of the respondents is situated, at the option of the complainant.
SERVICE OF SUMMONS; NATURAL & JURIDICAL PERSON/S; MODE OF SERVICE OF NOTICES, RESOLUTION, ORDER OF DECISION
SERVICE OF SUMMONS
SECTION 4. Service of Summons. Summons shall be served personally upon the parties by the bailiff or a duly authorized public
officer within three (3) days from his/her receipt thereof, or by registered mail, or by private courier authorized by the Commission;
Provided that in special circumstances, service of summons may be effected in accordance with the pertinent provisions of the Rules
of Court.
The bailiff or officer serving the summons shall submit his/her return within two (2) days from date of service thereof, stating legibly
in his/her return his/her name, the names of the persons served and the date of receipt, which return shall be immediately attached
to the records and shall be part thereof. If no service was effected, the reason thereof shall be stated in the return.
In case of service by registered mail or by private courier, the names of the addressees and the dates of receipt of the summons shall
be written in the return card or in the proof of service issued by the private courier. If no service was effected, the reason thereof
shall be so stated. (n)
NATURAL & JURIDICAL PERSONS
Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the
claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to
the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant. (Rule 3,
Section 1, Rules of Court)
MODE OF SERVICE OF NOTICE
Notices and copies of resolutions or orders:
a) personally upon the parties by the bailiff or duly authorized public officer within 3 days from his receipt thereof; or
b) by registered mail; or
c) private courier
Decisions and final awards:
a) copies shall be served on both parties and their counsel or representative by registered mail; or
b) private courier.
Provided:
In cases where a party to a case or his counsel personally seeks service of the decision upon inquiry thereon, service to
said party shall be deemed effected
Where parties are numerous, service shall be made on counsel and upon such number of complainants, as may be
practicable and shall be considered substantial compliance with Art. 224 (a) of the Labor Code
Appeal the period shall be counted from the receipt of such decisions, resolutions, or orders by the counsel or
representative of record
Duty of the Bailiff or Officer Serving the Notice, Order or Resolution:
Submit his return within 2days from date of service thereof, stating legibly in his return:
(1) His name
(2) Names of the persons served; and
(3) the date of receipt, which return shall be immediately attached and shall form part of the records of the case
In case of service by registered mail or private courier (1) name of the addressee and (2) date of receipt of notice, order
or resolution shall be written in the (3) return card or in the proof of service issued by the private courier. If no service was
effected, the reason thereof shall be stated.
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A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions:
(1)
(2)
he/she represents a legitimate labor organization, as defined under Article 212 and 242 of the Labor Code, as amended, which is
a party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or
initial hearing
1. a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and
Employment attesting that the organization he/she represents is duly registered and listed in the roster of legitimate
labor organizations;
2. a verified certification issued by the secretary and attested to by the president of the said organization stating that
he/she is authorized to represent the said organization in the said case; and
3. a copy of the resolution of the board of directors of the said organization granting him such authority;
(3)
he/she represents a member or members of a legitimate labor organization that is existing within the employer's establishment,
who are parties to the case: Provided, that he/she presents;
4. a verified certification attesting that he/she is authorized by such member or members to represent them in the
case; and
5. a verified certification issued by the secretary and attested to by the president of the said organization stating that
the person or persons he/she is representing are members of their organization which is existing in the employer's
establishment;
(4)
he/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the
Philippines: Provided, that he/she:
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he/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents:
8. a verified certification attesting that he/she is authorized to represent said corporation or establishment; and
9. a copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued
by said establishment, granting him/her such authority.
c)
Appearances of a non-lawyer in contravention of this section shall not be recognized in any proceedings before the Labor Arbiter or the
Commission.
d)
Appearances may be made orally or in writing. In both cases, the complete name and office address of counsel or authorized
representative shall be made of record and the adverse party or his counsel or authorized representative properly notified.
e)
In case of change of address, the counsel or representative shall file a notice of such change, copy furnished the adverse party and counsel
or representative, if any.
f)
Any change or withdrawal of counsel or authorized representative shall be made in accordance with the Rules of Court. (8a)
SUMMARY:
A lawyer must indicate in his/her pleadings and motions his/her:
(1) Attorneys Roll Number;
(2) Professional Tax Receipt;
(3) IBP numbers for the current year; and
(4) MCLE compliance
A non lawyer may appear in any of the following instances (note requisites):
(1) he/she represent himself/herself as a party to the case;
(2) he/she represents a legitimate labor organization which is a party to the case;
(3) he/she represents a member of a legitimate labor organization existing in the employers establishment which is a
party to the case;
(4) he/she is a duly-accredited member of any legal aid office recognized by the DOJ or IBP;
(5) he/she is the owner/president of a corporation or establishment which is a party to the case
SECTION 7. Authority to Bind Party. Counsel or other authorized representatives of parties shall have authority to bind their clients in all matters of
procedure; but they cannot, without a special power of attorney or express consent, enter into a compromise agreement with the opposing party in
full or partial discharge of a client's claim. (9a)
Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res
judicata, prescription and forum shopping;
Motion for a bill of particulars;
Motion for new trial;
Petition for Relief from Judgment;
Motion to declare respondent in default;
Motion for reconsideration of any decision or any order of the Labor Arbiter;
Appeal from any interlocutory order of the Labor Arbiter, such as but not limited to, an order:
(1)
(2)
(3)
(4)
h)
i)
j)
Appeal from the issuance of a certificate of finality of decision by the Labor Arbiter;
Appeal from orders issued by the Labor Arbiter in the course of execution proceedings.
Such other pleadings, motions and petitions of similar nature intended to circumvent above provisions. (5a, RIII)
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(2)
(3)
determining the necessity of amending the complaint and including all causes of action;
(4)
(5)
(6)
The Labor Arbiter shall personally preside over and take full control of the proceedings and may be assisted by the Labor Arbitration
Associate in the conduct thereof.
b)
Conciliation and mediation efforts shall be exerted by the Labor Arbiters all throughout the mandatory conferences. Any agreement
entered into by the parties whether in partial or full settlement of the dispute shall be reduced into writing and signed by the parties and
their counsel or the parties' authorized representatives, if any.
c)
In any case, the compromise agreement shall be approved by the Labor Arbiter, if after explaining to the parties, particularly to the
complainants, the terms, conditions and consequences thereof, he/she is satisfied that they understand the agreement, that the same was
entered into freely and voluntarily by them, and that it is not contrary to law, morals, and public policy.
d)
A compromise agreement duly entered into in accordance with this Section shall be final and binding upon the parties and shall have the
force and effect of a judgment rendered by the Labor Arbiter.
e)
The mandatory conciliation and mediation conference shall, except for justifiable grounds, be terminated within thirty (30) calendar days
from the date of the first conference.
f)
No motion for postponement shall be entertained except on meritorious grounds and when filed at least three (3) days before the
scheduled hearing. (3a)
SECTION 9. Effect of Failure of Settlement. If the parties fail to agree on an amicable settlement, either in whole or in part, during the mandatory
conciliation and mediation conference, the Labor Arbiter shall proceed to the other purposes of the said conference as enumerated in Section 8 (a)
hereof. (4a)
SECTION 10. Non-Appearance of Parties. The non-appearance of the complainant or petitioner during the two (2) settings for mandatory
conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without
prejudice.
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Waiver of right to file position paper can happen if respondent still fails to appear at the second conference despite served
with summons
The LA should immediately terminate the conciliation and direct the petitioner to file a position paper and submit evidence
The LA should thereupon render his/her decision on the basis of the evidence on record
SECTION 20. Revival and Re-Opening or Re-Filing of Dismissed Case and Lifting of Waiver. A party may file a motion to revive or re-open a case
dismissed without prejudice, within ten (10) calendar days from receipt of notice of the order dismissing the same; otherwise, the only remedy shall
be to re-file the case. A party declared to have waived his/her right to file position paper may, at any time after notice thereof and before the case
is submitted for decision, file a motion under oath to set aside the order of waiver upon proper showing that his/her failure to appear was due to
justifiable and meritorious grounds. (16a)
A judgment rendered in accordance with a compromise agreement is not appealable, and is immediately executory unless a
motion is filed to set aside the agreement on the ground of fraud, mistake, or duress, in which case an appeal may be taken
against the order denying the motion. Under A2037 of the Civil Code, a compromise has upon the parties the effect and
authority of res judicata, even when effected without judicial approval; and under the principle of res judicata, an issue which
has already been laid to rest by the parties themselves can no longer be relitigated. (Phil. Journalist Inc. vs. NLRC, G.R. No.
166421, Sept. 5, 2006)
All that is required for the compromise to be deemed voluntarily entered into is personal and specific individual consent. Thus,
contrary to respondents contention, the employees counsel need not be present at the time of the signing of the compromise
agreement. (J.Phil. Marine Inc. vs. NLRC, G.R. No. 168339, Oct. 10, 2008)
SIMULTANEOUS FILING OF POSITION PAPER; CONTENTS OF POSITION PAPER; REPLY POSITION PAPER & CONTENTS
RULE V
SECTION 11. Submission of Position Paper and Reply.
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Subject to Sections 9 and 10 of this Rule, the Labor Arbiter shall direct the parties to submit simultaneously their verified position papers
with supporting documents and affidavits, if any, on a date set by him/her within ten (10) calendar days from the date of termination of
the mandatory conciliation and mediation conference.
b)
No amendment of the complaint or petition shall be allowed after the filing of position papers, unless with leave of the Labor Arbiter.
c)
The position papers of the parties shall cover only those claims and causes of action stated in the complaint or amended complaint,
accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony,
excluding, those that may have been amicably settled.
d)
Within ten (10) days from receipt of the position paper of the adverse party, a reply may be filed on a date agreed upon and during a
schedule set before the Labor Arbiter. The reply shall not allege and/or prove facts and any cause or causes of action not referred to or
included in the original or amended complaint or petition or raised in the position paper. (7a)
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The Labor Arbiter shall make a written summary of the proceedings, including the substance of the evidence presented, in consultation
with the parties. The written summary shall be signed by the parties and shall form part of the records. (9a)
SECTION 14. Non-Appearance of Parties, and Postponement of Hearings and Clarificatory Conferences.
a) The parties and their counsels appearing before the Labor Arbiter shall be prepared for continuous hearing or clarificatory conference. No
postponement or continuance shall be allowed by the Labor Arbiter, except upon meritorious grounds and subject to the requirement of
expeditious disposition of cases. The hearing or clarificatory conference shall be terminated within thirty (30) calendar days from the date
of the initial clarificatory conference.
b)
In case of non-appearance of any of the parties during the hearing or clarificatory conference despite due notice, proceedings shall be
conducted ex-parte. Thereafter, the case shall be deemed submitted for decision.
c)
Paragraph (a) of this Section notwithstanding, in cases involving overseas Filipino workers, the aggregate period for conducting the
mandatory conciliation and mediation conference, including hearing on the merits or clarificatory conference, shall not exceed sixty (60)
days, which shall be reckoned from the date of acquisition of jurisdiction by the Labor Arbiter over the person of the respondents. (10a)
SECTION 15. Submission of the Case for Decision. Upon the submission by the parties of their position papers or replies, or the lapse of the period
to submit the same, the case shall be deemed submitted for decision unless the Labor Arbiter calls for a hearing or clarificatory conference in
accordance with Section 12 and 14(a) of this Rule, in which case, notice of hearing or clarificatory conference shall be immediately sent to the parties.
Upon termination of the said hearing or conference, the case is deemed submitted for decision.
INHIBITION
SECTION 16. Inhibition. A Labor Arbiter may voluntarily inhibit himself/herself from the resolution of a case and shall so state in
writing the legal justifications therefor. Upon motion of a party, either on the ground of relationship within the fourth civil degree of
consanguinity or affinity with the adverse party or counsel, or on question of partiality or other justifiable grounds, the Labor Arbiter
may inhibit himself/herself from further hearing and deciding the case. Such motion shall be resolved within five (5) days from the
filing thereof. An order denying or granting a motion for inhibition is inappealable. (12a)
VOLUNTARY INHIBITION
A Labor Arbiter may voluntary inhibit from the resolution of a case and shall state in writing the legal justifications thereof
UPON MOTION OF A PARTY
On the ground of:
(1) Relationship within the fourth civil degree of consanguinity or affinity with the adverse party or counsel;
(2) Question of partiality;
(3) Other justifiable grounds.
Such motion shall be resolved within 5 days from filing and is inappealable.
CONTEMPT
SECTION 1. Direct Contempt. The Chairman or any Commissioner or Labor Arbiter may summarily adjudge guilty of direct contempt any person
committing any act of misbehavior in the presence of or so near the Chairman or any Commissioner or Labor Arbiter as to obstruct or interrupt the
proceedings before the same, including disrespect toward said officials, offensive acts toward others, or refusal to be sworn or to answer as a witness
or to subscribe to an affidavit or deposition when lawfully required to do so. If the offense is committed against the Commission or any member
thereof, the same shall be punished by a fine not exceeding Five Hundred Pesos (P500.00) or imprisonment not exceeding five (5) days, or both; and, if
the offense is committed against any Labor Arbiter, the same shall be punished by a fine not exceeding One Hundred Pesos (P100.00) or
imprisonment not exceeding one (1) day, or both.
Any person adjudged guilty of direct contempt by a Labor Arbiter may, within a period of five (5) calendar days from notice of the judgment, appeal
the same to the Commission and the execution of said judgment shall be suspended pending resolution of the appeal upon the filing by said person of
a bond on condition that he will abide by and perform the judgment should the appeal be decided against him/her. A judgment of the Commission on
direct contempt shall be immediately executory and inappealable.
SECTION 2. Indirect Contempt. The Commission or any Labor Arbiter pursuant to Article 218 (d) of the Labor Code may cite any person for indirect
contempt and impose the appropriate penalty under any of the following grounds:
a)
Misbehavior of any officer or employee in the performance of his/her official duties or in his/her official
transaction;
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A.
Where charge to be filed. Where the charge for indirect contempt has been committed against the Commission or against an Officer
appointed by it, the charge may be filed with the Commission. Where such contempt has been committed against the Labor Arbiter, the
charge may be filed with the Regional Arbitration Branch subject to appeal to the Commission in the same manner as provided in Section 1
of this Rule.
B.
How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the Commission or any Labor Arbiter
by an order or any other formal charge requiring the respondent to show cause why he/she should not be punished for contempt.
In all other cases, a charge for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true
copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings in the
Commission. If the contempt charge arose out of or is related to a principal action pending in the Commission or Regional Arbitration
Branch, the petition for contempt shall allege that fact but said petition shall be consolidated, heard, and decided separately, unless the
Commission or Labor Arbiter in its/his/her discretion, orders the consolidation of the contempt charge and the principal action for joint
hearing and decision.
C.
Hearing. Upon the date set for hearing, the Commission or Labor Arbiter shall proceed to investigate the charge and consider such
comment, answer, defense or testimony as the respondent may make or offer. Failure to attend the scheduled hearing and to give a
satisfactory explanation in writing to the Commission or Labor Arbiter will result in the waiver of the respondent to be present during the
hearing.
D.
Punishment for indirect contempt. If the respondent is adjudged guilty of indirect contempt committed against the Commission or any
member thereof, he/she may be punished by a fine of One Thousand (P1,000.00) Pesos per day for every act of indirect contempt; and, if
the offense is committed against any Labor Arbiter, the same may be punished by a fine of Five Hundred (P500.00) Pesos per day for every
act of indirect contempt. Each day of defiance of, or disobedience to, or non-enforcement of a final order, resolution, decision, ruling,
injunction, or processes, shall constitute an indirect contempt of the Commission. If the contempt consists of the violation of an injunction
or omission to do an act which is within the power of the respondent to perform, the respondent shall, in addition, be made liable for
damages as a consequence thereof. The damages shall be measured by the extent of the loss or injury sustained by the aggrieved party by
reason of the acts or omissions of which the contempt is being prosecuted, and the costs of the proceedings, including payment of interest
on damages.
E.
A writ of execution may be issued to enforce the decision imposing such fine and/or consequent damages as punishment for indirect
contempt. (2a)
APPEAL PROCEDURE
Article 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both
parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following
grounds:
If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
If the decision, order or award was secured through fraud or coercion, including graft and corruption;
If made purely on questions of law; and
If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.
In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued
by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall
immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing
prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not
stay the execution for reinstatement provided herein.
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon
the erring parties.
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RULE VI
SECTION 1. Periods of Appeal. Decisions, awards, or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by
any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions or resolutions of the Regional Director of the
Department of Labor and Employment pursuant to Article 129 of the Labor Code, within five (5) calendar days from receipt thereof. If the 10th or 5th
day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such
Saturday, Sunday or holiday.
No motion or request for extension of the period within which to perfect an appeal shall be allowed. (1a)
SECTION 2. Grounds. The appeal may be entertained only on any of the following grounds:
a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director;
b) If the decision, award or order was secured through fraud or coercion, including graft and corruption;
c)
If made purely on questions of law; and/or
d) If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the
appellant. (2a)
SECTION 3. Where Filed. The appeal shall be filed with the Regional Arbitration Branch or Regional Office where the case was heard and decided.
NEW SCHEDULE OF LEGAL FEES (NLRC En Banc Resolution No. 08-07, Series of 2007)
WHEREFORE, RESOLVED AS IT IS HEREBY RESOLVED, to amend En Banc Resolution No. 01-05, Series of 2005, by adopting the following new schedule of legal fees or
deposits payable to the National Labor Relations Commission, to wit:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
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12.
13.
14.
15.
d.
P50,000 or more but less than 100,000 800
e.
100,000 or more but less than 150,000 1,000
f.
150,000 or more 1,000 plus 10 for every 1,000 in excess of 150,000
Appeal Fee 500
Legal Research Fee (UP Law Center) 20
Attestation Fee on Quitclaim and Walk-in Settlement 500
Motion for Postponement Fee 500
Unless otherwise provided by law, rule or regulation, the imposition of the foregoing fees/charges is subject to the qualification that indigent litigants: (a) whose gross
income and that of their immediate family do not exceed an amount double the monthly minimum wage for an employee and (b) who do not own real property with a fair
market value as stated in the current tax declaration of more than Three Hundred Thousand (P300,000.00) pesos, shall be exempted from immediate payment of
fees/charges.
In such case, the fees/charges shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless it is otherwise provided.
To be entitled to the exemption, the litigant shall execute and affidavit that he and his immediate family do not earn a gross income above-mentioned, nor do they own any
real property with the fair market value aforementioned.
Any falsity in the affidavit of litigant shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, in addition to whatever criminal
liability incurred.
b)
A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an
appeal.
c)
The appellee may file with the Regional Arbitration Branch or Regional Office where the appeal was filed, his/her answer or reply to
appellant's memorandum of appeal, not later than ten (10) calendar days from receipt thereof. Failure on the part of the appellee who was
properly furnished with a copy of the appeal to file his/her answer or reply within the said period may be construed as a waiver on his/her
part to file the same.
d)
Subject to the provisions of Article 218 of the Labor Code, once the appeal is perfected in accordance with these Rules, the Commission
shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal. (4a)
SECTION 5. Appeal Fee. The appellant shall pay the prevailing appeal fee and legal research fee to the Regional Arbitration Branch or Regional
Office of origin, and the official receipt of such payment shall form part of the records of the case. (5a)
SECTION 6. Bond. In case the decision of the Labor Arbiter or the Regional Director involves a monetary award, an appeal by the employer may be
perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary
award, exclusive of damages and attorney's fees.
In case of surety bond, the same shall be issued by a reputable bonding company duly accredited by the Commission or the Supreme Court, and shall
be accompanied by original or certified true copies of the following:
a)
b)
c)
d)
e)
f)
g)
a joint declaration under oath by the employer, his/her counsel, and the bonding company, attesting that the bond posted is genuine, and
shall be in effect until final disposition of the case;
an indemnity agreement between the employer-appellant and bonding company;
proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security;
a certificate of authority from the Insurance Commission;
certificate of registration from the Securities and Exchange Commission;
certificate of accreditation and authority from the Supreme Court; and
notarized board resolution or secretery's certificate from the bonding company showing its authorized signatories and their specimen
signatures.
The Commission through the Chairman may on justifiable grounds blacklist a bonding company, notwithstanding its accreditation by the Supreme
Court.
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RULE VII
SECTION 2.Composition and Internal Functions of the Commission En Banc and its Divisions.
a) Composition. Unless otherwise provided by law, the Commission shall be composed of the Chairman and of twenty three (23)
Commissioners.
b) Commission En Banc. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing
and disposition of cases before its Divisions and Regional Arbitration Branches, and for the formulation of policies affecting its
administration and operations. It may, on temporary or emergency basis, allow cases within the jurisdiction of any Division to be heard by
any other Division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional
expense.
c)
Divisions. Unless otherwise provided by law, the Commission shall exercise its adjudicatory and all other powers, functions and duties
through its eight (8) Divisions. Each Division shall consist of one member from the public sector who shall act as the Presiding
Commissioner and one member each from the workers and employers sectors, respectively.
Of the eight (8) Divisions, the First, Second, Third, Fourth, Fifth and Sixth Divisions shall have exclusive territorial jurisdiction over appealed
cases coming from Luzon; the Seventh Division, appealed cases from the Visayas Region; and the Eighth Division, appealed cases from
Mindanao including those from the Autonomous Region for Muslim Mindanao.
d) Headquarters. As provided by law, the Commission and its First, Second, Third, Fourth, Fifth and Sixth Divisions for Luzon shall have their
main offices in the National Capital Region, and the Seventh and Eighth Divisions for Visayas and Mindanao, in the cities of Cebu and
Cagayan de Oro, respectively. (2a)
SECTION 3. The Chairman. The Chairman shall preside over all sessions of the Commission en banc. He/she is the Presiding Commissioner of the
First Division. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the Second Division shall be the Acting
Chairman.
The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its Regional Arbitration
Branches and all its personnel including the Executive Labor Arbiters and Labor Arbiters.
SECTION 4. Commission En Banc Session, Quorum and Vote.
a) Commission En Banc. The Chairman shall call the Commission to an en banc session at least twice a year, preferably on the first week of
June and the first week of December, to deliberate and decide on any matter before it. However, a majority of all the members of the
Commission may call a special en banc session to discuss and decide on urgent and vital matters which need immediate action.
b)
Quorum The presence of a majority of all the members of the Commission shall be necessary to constitute a quorum. The vote or
concurrence of the majority of the members constituting a quorum shall be the decision or resolution of the Commission en banc.
c)
Division. The presence of at least two (2) Commissioners of a Division shall constitute a quorum. The concurrence of two (2)
Commissioners of a Division shall be necessary for the pronouncement of a judgment or resolution.
Whenever the required membership in a Division is not complete and/or the concurrence of two (2) Commissioners cannot be obtained to
arrive at a judgment or resolution, the Chairman shall designate such number of additional Commissioners belonging to the same sector
from the other Divisions as may be necessary. In the event that all the members of a division inhibit themselves from resolving a case, the
Chairman may create a Special Division or assign the case to any of the other Divisions.
d)
Role of Chairman in the Division. The Chairman of the Commission may convene and preside over the session of any Division to consider
any case pending before it and participate in its deliberations, if in his/her judgment, his/her presence therein will best serve the interests
of labor justice. He/she shall not however, participate in the voting by the Division, except when he/she is acting as Presiding Commissioner
of the Division in the absence of the regular Presiding Commissioner. (4a)
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EO No. 204, Series of 2003 DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER TO EXERCISE
ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION
SECTION 1. Delegation to the Secretary of Labor. - The power of the President under Section 17, Article VII of the Constitution and as the
administrative head of the Government to exercise administrative supervision over the NLRC, its regional branches and all its personnel, including the
Executive Labor Arbiters and Labor Arbiters, is hereby delegated to the Secretary of Labor, with the objective of further improving the rate of
disposition of cases pending before it and its regional and sub-regional branches or provincial extension units and to enhance existing measures for
the prevention of graft and corruption within the said agency.
For this purpose, the Secretary of Labor, in the exercise of such delegated authority, shall, among others:
a.
b.
c.
d.
Generally oversee the operations of the NLRC and its regional and sub-regional branches or provincial extension units for the purpose of
insuring that cases pending before them are decided or resolved expeditiously;
Enhance existing measures within the agency, or initiate new ones, to prevent graft and corruption, including but not limited to, the
conduct of management audits, performance evaluations and inspections to determine compliance with established policies, standards
and guidelines;
To take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and
other forms of maladministration; and
Investigate, on its own or upon complaint, matters involving disciplinary action against any of the Presidential appointees in the NLRC, in
accordance with existing laws, rules and regulations. After completing his/her investigation, the Secretary of Labor shall submit a report to
the President on the investigation conducted with a recommendation as to the penalty to be imposed or other action to be taken,
including referral to the Presidential Anti-Graft Commission [PAGC], the Office of the Ombudsman or any other office, committee,
commission, agency, department, instrumentality or branch of the government for appropriate action.
The delegation of authority conferred herein upon the Secretary of Labor shall not extend to the power to review, reverse, revise, or modify the
decisions of the NLRC in the exercise of its quasi-judicial functions [cf. Section 38(2)(b), Chapter 7, Book IV, Administrative Code].
SECTION 2. Report to the President. - The NLRC, through its Chairman, shall submit a report to the President, through the Secretary of Labor, within
thirty (30) days from issuance of this Executive Order, on the following matters:
a.
b.
c.
d.
Performance Report/Audit for the last five (5) years, including list of pending cases and cases disposed of within the said period by the
NLRC en banc, by Division and by the Labor Arbiters in each of its regional and sub-regional branches or provincial extension units;
Detailed Master Plan on how to liquidate its backlog of cases with clear timetables to clean up its dockets within six (6) months from the
issuance hereof;
Complete inventory of its assets and list of personnel indicating their present positions and stations; and
Such other matters as may be required by the President upon the recommendation of the Secretary of Labor.
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3.
4.
5.
6.
7.
Contempt power
Power to issue injunctions and restraining orders involving or arising from any labor dispute before the Commission
Power to conduct ocular inspection
Appellate power
Entry of Judgment. Upon the expiration of the ten (10) calendar day period provided in paragraph (a) of this Section, the decision,
resolution, or order shall be entered in a book of entries of judgment.
In the absence of return cards, certifications from the post office or the courier or other proofs of service to the parties, the Executive Clerk or Deputy
Executive Clerk shall consider the decision, resolution or order as final and executory after sixty (60) calendar days from date of mailing. (14a)
SECTION 15. Motions for Reconsideration. Motion for reconsideration of any decision, resolution or order of the Commission shall not be
entertained except when based on palpable or patent errors; provided that the motion is filed within ten (10) calendar days from receipt of decision,
resolution or order, with proof of service that a copy of the same has been furnished, within the reglementary period, the adverse party; and provided
further, that only one such motion from the same party shall be entertained. (15a)
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Filing of Complaint
in the RD (decided
within 30 calendar
days)
Raffled by Executive
LA; Assigned to LA
within 24 hrs; Issuance
of Summons
Motion to Dismiss
On or before the date set for
mandatory conciliation
Only on the grounds of lack of
jurisdiction over the subject
matter, improper venue, res
judicata, prescription and forum
shopping
Mandatory
Conciliation and
Mediation
PETITION FOR
CERTIORARI IN THE
COURT OF APPEALS
(RULE 65)
Not later than 60 days from
notice of the judgment,
order or resolution
Settled?
END
N
Verified Position Paper
Submitted within an inextendible
period of 10 calendar days from
the date of termination
Reply may be filed by any party
within 10 calendar days from
receipt of the position paper of
the adverse party
Y
Revived?
N
END
Clarificatory
Hearing (At
discretion of LA)
APPEAL TO NLRC
within 10 calendar days from receipt of decision
if from LA; 5 days if RD; inextendible
Grounds:
o Prima facie evidence of GAD;
o If the decision, award or order was
secured through fraud or coercion,
including graft and corruption;
o Pure questions of law;
o Serious errors in the findings of facts
which would cause grave irreparable
damage if not corrected
Note the requisites for perfection
Decision is Unappealable
MR allowed within 10 days
APPEAL BY CERTIORARI IN
THE SUPREME COURT
UNDER RULE 45
Within fifteen (15) days from
notice of the judgment or final
order or resolution
Decision by LA
Must be within 30
calendar
days
from
submission of the case by
the parties for decision
OFW cases within 90
calendar days after filing of
complainnt
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In the event of failure or refusal of the losing party to pay the judgment award, the Sheriff shall immediately proceed against the cash
deposit or surety bond posted by the losing party, if any;
c)
If the bonding company refuses to pay or the bank holding the cash deposit of the losing party refuses to release the garnished amount
despite the order or pertinent processes issued by the Labor Arbiter or the Commission, the president or the responsible officers or
authorized representatives of the said bonding company or the bank who resisted or caused the non-compliance shall be either cited for
contempt, or held liable for resistance and disobedience to a person in authority or the agents of such person as provided under the
pertinent provision of the Revised Penal Code. This rule shall likewise apply to any person or party who unlawfully resists or refuses to
comply with the break open order issued by the Labor Arbiter or the Commission.
For this purpose, the Labor Arbiter or the Commission may issue an order directing the sheriff to request the assistance of law enforcement
agencies to ensure compliance with the writ of execution, orders or processes.
A bonding company cited for contempt, or for an offense defined and punishable under the pertinent provision of the Revised Penal Code
shall be barred from transacting business with the Commission.
d)
Should the cash deposit or surety bond be insufficient, or in case the surety bond cannot be proceeded against for any reason, the Sheriff
shall, within five (5) days from demand, execute the monetary judgment by garnishing bank deposits, credits, receivables, and other
personal property not capable of manual delivery, if the same is not enough, proceed to levy the personal property of the losing party, and
if still insufficient, against the real property not exempt from execution, sufficient to cover the judgment award, which may be disposed of
for value at a public auction to the highest bidder.
e)
Proceeds of execution shall be deposited with the Cashier of the concerned Division or Regional Arbitration Branch, or with an authorized
depositary bank. Where payment is made in the form of a check, the same shall be payable to the Commission.
f)
For monetary judgment on cases involving overseas Filipino workers, the manner of execution shall be in accordance with Republic Act No.
10022. (5a)
SECTION 12. Sheriff's Return and Report. The writ of execution shall be returned to the Commission or Labor Arbiter immediately after the full
satisfaction of the judgment award. In case of partial or non-satisfaction of the judgment, the sheriff enforcing the writ shall submit a report updating
the Commission or Labor Arbiter who issued the writ of execution on the status of the enforcement thereof, not later than thirty (30) days from
receipt of such writ and every thirty (30) days thereafter during the lifetime of the writ unless fully satisfied. A copy of the report shall be furnished the
Chairman and the Executive Labor Arbiter.
Failure on the part of the Sheriff to submit the report or return required under Section 12 of this Rule within the stated period shall subject him/her to
administrative fine under Rule XIV of this Rule, or suspension for fifteen (15) days without pay, or both. (13a, 14a)
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d)
e)
In case of other personal property, by posting a similar notice in three (3) public places in the municipality or city where the sale is to take place, for not less than five (5) nor more than
ten (10) days;
In case of real property, by posting for twenty (20) days a notice in three (3) public places in the municipality or city where the property is situated, a similar notice particularly describing
the property and stating where the property is to be sold, and, if the assessed value of the property exceeds fifty thousand pesos (P50,000.00), by publishing a copy of the notice once a
week for two (2) consecutive weeks, in a newspaper of general circulation in the province or city, if there be one. If there are newspapers published in the province or city in English
and/or Filipino, then the publication shall be made in one such newspaper;
In all cases, written notice of the sale shall be given to the losing party;
An officer selling without the notice prescribed in the preceding sections shall forfeit five thousand pesos (P5,000.00) to any party injured thereby, in addition to his actual damages, both
to be recovered in a single proper action; and a person willfully removing or defacing the notice posted, if done before the sale, shall forfeit five thousand pesos (P5,000.00) to any
person injured by reason thereof, to be recovered in any proper action.
An execution sale without the valid levy and notice of sale as herein provided is null and void and vests no title in the purchaser.
SECTION 2. No Sale if Judgment and Costs Paid. At any time before the sale of property on execution, the losing party may prevent the sale by paying the amount required by the execution and the
costs that have been incurred therein.
SECTION 3. How Property Sold on Execution. All sales of property under execution shall be made at public auction, to the highest bidder, between the hours of nine in the morning and five in the
afternoon. After sufficient property has been sold to satisfy the execution, no more shall be sold. When the sale is of real property, consisting of several known lots, they shall be sold separately; or
when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it shall be sold within the
view of those attending the sale and in such parcels as are likely to bring the highest price. The losing party, if present at the sale, may direct the order in which property, real or personal, shall be sold,
when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the sheriff nor duly designated officer holding the execution can become a purchaser,
nor be interested directly or indirectly in any purchase at such sale.
SECTION 4. Refusal of Purchaser to Pay. If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the sheriff may again sell the property to the
highest bidder and shall not be responsible for any loss occasioned thereby; but the Commission or Labor Arbiter who issued the writ of execution may order the refusing purchaser to pay to the
former the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of
the execution, unless the execution has been fully satisfied, in which event, such proceeds shall be for the benefit of the losing party. When a purchaser refuses to pay, the sheriff may thereafter reject
any subsequent bid of such person.
SECTION 5. Prevailing Party as Purchaser. When the purchaser is the prevailing party, and no third party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount
of the judgment. If it does, he shall pay only the excess.
SECTION 6. Adjournment of Sale. By written consent of the prevailing party and losing party, the sheriff may adjourn any sale on execution to any date agreed upon in writing by the parties. Without
such agreement, he may adjourn the sale from day to day, if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice.
SECTION 7. Conveyance to Purchaser of Personal Property Capable of Manual Delivery. When the purchaser of any personal property capable of manual delivery pays the purchase price, the sheriff
making the sale shall deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the losing party has in
such property on the day of its levy.
SECTION 8. Conveyance to Purchaser of Personal Property Not Capable of Manual Delivery. When the purchaser of any personal property not capable of manual delivery pays the purchase price, the
sheriff making the sale shall execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the losing party has in such property on the day of its
levy.
SECTION 9. Conveyance of Real Property. Certificate Thereof Given to Purchaser and Filed with the Register of Deeds. Upon a sale of real property, the sheriff shall give to the purchaser a certificate of
sale containing:
a)
A particular description of the real property sold;
b)
The price paid for each distinct lot or parcel;
c)
The whole price paid by him.
A duplicate of such certificate shall be filed by the sheriff with the Office of the Register of Deeds of the province or city where the property is located.
SECTION 10. Certificate of Sale When Property is Claimed by Third Party. When a property sold by virtue of a writ of execution is claimed by a third party, the certificate of sale to be issued by the
sheriff pursuant to preceding sections 7, 8 and 9 shall indicate therein such third party claim.
SECTION 11. Redemption of Real Property Sold; Who may Redeem. Real property sold as provided in the last preceding section or any part thereof separately, may be redeemed in the manner
hereinafter provided, by the following parties/persons:
a)
The losing party, or his successor in interest in the whole or any part of the property;
b)
A creditor having a lien by attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the judgment under which the property was sold. Such
redeeming creditor is termed a redemptioner.
SECTION 12. Time and Manner of, and Amounts Payable on, Successive Redemptions. Notice to be Given and Filed. The losing party, or redemptioner, may redeem the property from the purchaser,
at any time within twelve (12) months after the sale, by paying the purchaser the amount of his purchase, with one per centum per month interest thereon, in addition, up to the time of redemption,
together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last-named amount at the same rate; and if the purchaser be
also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may
again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid in the last redemption, with two per centum thereon in addition, and the amount of any assessments
or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner
prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, by
paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the
redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the sheriff who made the sale a duplicate filed with the Register of Deeds of the province or city, and if any assessments or taxes are paid by the
redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the register of deeds; if
such notice be not filed, the property may be redeemed without paying such assessments, taxes or liens.
SECTION 13. Effect of Redemption by Losing Party, and a Certificate to be Delivered and Recorded Thereupon; To Whom Payments on Redemption Made. If the losing party redeems, he shall make
the same payments as are required to effect a redemption by a redemptioner, whereupon the effect of the sale is terminated and he is restored to his estate, and the person to whom the payment is
made shall execute and deliver to him a certificate of redemption acknowledged or approved before a notary public or other officer authorized to take acknowledgments of conveyances of real
property. Such certificate must be filed and recorded in the office of the Register of Deeds of the province or city in which the property is situated, and the Register of Deeds must note the record
thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the sheriff
or duly designated officer who made the sale.
SECTION 14. Proof Required of Redemptioner. A redemptioner shall produce to the sheriff, or person from whom he seeks to redeem, and serve with his notice to the sheriff:
a)
A copy of the judgment or order under which he claims the right to redeem, certified by the proper officer wherein the judgment is docketed; or, if he redeems upon a mortgage or other
liens, a memorandum of the record thereof, certified by the Register of Deeds;
b)
A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, or of a subscribing witness thereto;
c)
An affidavit by himself or his agent, showing the amount then actually due on the lien.
SECTION 15. Deed and Possession to be Given at Expiration of Redemption Period; By Whom Executed or Given. If no redemption be made within twelve (12) months after the sale, the purchaser, or
his assignee, is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given,
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An affidavit stating title to property or right to the possession thereof with supporting evidence;
(2)
Posting of a bond equivalent to the amount of the claim or judgment award, whichever is lower; and
(3)
b)
Where filed The third party claim shall be filed with the Commission or Labor Arbiter where the execution proceeding is pending, with
proof of service of copies thereof to the Sheriff and the prevailing party.
c)
Effect of Filing. The filing of a third party claim that has complied with the requirements set forth under paragraph (a) of this Section
shall automatically suspend the proceedings with respect to the execution of the properties subject of the third party claim.
Upon approval of the bond, the Labor Arbiter shall issue an order releasing the levied property or a part thereof subject of the claim unless
the prevailing party posts a counter bond in an amount not less than the value of the levied property.
The Labor Arbiter may require the posting of additional bond upon showing by the other party that the bond is insufficient.
d)
Proceedings. The propriety of the third party claim shall be resolved within ten (10) working days from submission of the claim for
resolution. The decision of the Labor Arbiter is not appealable but may be elevated to the Commission and resolved in accordance with
Rule XII hereof. Pending resolution thereof, execution shall proceed against all other properties not subject of the third party claim. (12a)
If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter.
b)
If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the petitioner.
c)
If a party by fraud, accident, mistake or excusable negligence has been prevented from taking an appeal;
d)
e)
SECTION 3. When and Where Filed. Not later than ten (10) calendar days from receipt of the order or resolution of the Labor Arbiter, the aggrieved party may file a
petition with the Commission furnishing a copy thereof to the adverse party.
SECTION 4. Requisites of the Petition. The petition filed under this Rule shall:
a)
be accompanied by a clear original or certified true copy of the order or resolution assailed, together with clear copies of documents relevant or related to the
said order or resolution for the proper understanding of the issue/s involved;
b)
contain the arbitral docket number and appeal docket number, if any;
c)
d)
be verified by the petitioner himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended;
e)
be in the form of a memorandum which shall state the ground/s relied upon, the argument/s in support thereof and the reliefs prayed for;
f)
g)
be accompanied by:
i.
ii.
proof of service upon the other party/ies and the Labor Arbiter who issued the order or resolution being assailed or questioned; and
iii.
SECTION 5. The Public and Private Respondents Impleaded in the Petition. The Labor Arbiter shall be jointly impleaded with the private respondent as a public
respondent in a nominal capacity. As used in this Rule, the private respondent refers to the party interested in sustaining the order or resolution of the Labor Arbiter. It
shall be the duty of the private respondent to appear and defend, both in his/her behalf and that of the public respondent, and the cost awarded in such proceedings in
favor of the petitioner shall be against the private respondent only. The public respondent shall not appear or file an answer or comment to the petition or any pleading
therein.
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grant a final injunction perpetually enjoining the Labor Arbiter or any person acting under his/her authority from the commission of the act/s or confirming the
preliminary injunction.
However, the Commission may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein
are too unsubstantial to require consideration.
APPELLATE REMEDIES
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (1a)
Section 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
fun functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
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RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The
petition shall raise only questions of law which must be distinctly set forth. (1a, 2a)
Section 2. Time for filing; extension. The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the
denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the
docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension
of thirty (30) days only within which to file the petition. (1a, 5a)
Section 3. Docket and other lawful fees; proof of service of petition. Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy, thereof
on the lower court concerned and on the adverse party shall be submitted together with the petition. (1a)
Section 4. Contents of petition. The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner
and shall:
(a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower
courts or judges thereof either as petitioners or respondents;
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indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received;
(c)
set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition;
(d)
be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified
by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record
as would support the petition; and
(e)
contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (2a)
Section 5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for
the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration. (3a)
Section 6. Review discretionary. A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and impo rtant reasons
thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered:
(a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in
accord with law or with the applicable decisions of the Supreme Court; or
(b)
When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lowe r court, as
to call for an exercise of the power of supervision. (4a)
UPDATES
PCI Travel Corp vs. NLRC et al., G.R. No. 154379, October 31, 2008 The following officials or employees of the employer can sign the verification and certification
without need of a board resolution (i) Chairperson of the Board; (ii) President; (iii) General Manager; (iv) Personnel Officer; and (v) Labor Employment Specialist.
(citing 2008 Cagayan Valley Drug Corp.)
Pentagon Steel Corp., vs. Court of Appeals, et al., G.R. No. 174141, June 26, 2009 Actions and/or agreements made by the parties during the conciliation
proceedings before the labor arbiter are treated as privileged communication under Art. 233; thus, an offer of compromise does not constitute an admission against
interest
Laguna Metts Corp., vs. Caalam et al., G.R. No. 185220, July 27, 2009 An extension of time to file a petition for certiorari under Rule 65 from decision of NLRC (see
A.M. No. 07-7-12-SC, amending Rule 65, Sec. 4) is no longer allowed. While social justice requires that the law took tenderly on the disadvantaged sectors of society,
neither the rich nor the poor has a license to disregard rules of procedure.
NLRC powers and composition; See RA 9347 rationalizing the composition and function of the NLRC; EN banc and division powers and injunctive power; lawyer
insulting and making diatribes against the NLRC, sanctioned by Supreme Court as he is a member of the BAR and covered by the Code of Professional Responsibility,
held in 2006 Ng
Venue in filing complaints, before the arbitration branch of the NLRC as held in 1992 Nestle Phils., and 1998 Phil. Tranco Service and 1996 Sulpicio Lines; and place
of regular assignment as held in 2006 Westmont Pharmaceuticals; see also venue for claims of overseas filipino workers in 2005 Phil. National Bank involving a
Filipino employee in Singapore branch of bank, where Labor Code applies
Immunity from labor claims of Asian Development Bank in 1996 Dept. of Foreign Affairs, being an international organization; see however, 2009 Deutsche
Gesellschaft Fur Technische Zusammenarbeit (German Agency for Technical Cooperation) involving an implementing agency of the Federal Republic of Germany
which was made liable for illegal dismissal of Filipino workers, as its invocation of immunity from suit not tenable in the absence of evidence
Residual authority of labor arbiter to preserve and protect rights of parties despite perfection of appeal e.g. issuing partial writ of execution to carry out
reinstatement aspect, compute award of backwages: BUT not approval of compromise if case is on appeal to NLRC because NLRC Com missioner is given such
authority under 2005 Revised Rules of Procedure of the NLRC
Power of labor arbiter to set aside execution of FINAL AND EXECUTORY JUDGMENT if there is supervening events making the execution unjust, inequitable, etc. held
in 1990 Pacific Mills; also execution of decision of labor arbiter when it involves property of a third person, still within the jurisdiction of labor arbiter
NLRC has jurisdiction over petition for injunction to enjoin final and executor judgment e.g. erroneous computation of backwages, as held in National Federation of
Labor
Order of execution issued by the labor arbiter is not subject to appeal, held in 2003 King Integrated Security case; it cannot also be subject of certiorari directly to
Court of Appeals as held in 2006 Triad Security and Allied Services; likewise, order of labor arbiter denying motion to dismiss is not appealable to NLRC, and cannot
also be subject of certiorari directly to Court of Appeals, held in 2005 Metro Drug Distribution
NLRC has power to entertain motion for reduction of bond, and if granted, to give extension to file bond as held in 1998 Alcosero; however, once bond is ordered
reduced by NLRC, appellant cannot file motion for reconsideration as it will extend period to appeals as held in 1998 Mers Shoes Mfg.; see requisites when motion to
reduce bond before the NLRC shall stop running of the period to perfect an appeal
Art. 223 on immediately executory is for the benefit of employee and not employer, and thus, employee who was ordered reinstated pending appeal must be given
reasonable time to comply therewith as held in 2002 Buenviaje where five day period to comply was not sufficient
Deletion of award of reinstatement NOT proper as position of route salesman is not confidential, held in 2009 Reyes and there being no proof of strained relations
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An appeal to the NLRC that was filed 3 days late violates the Art. 223 of the Code, and the NLRC rules, thus rendering the decision of the labor arbiter final and
executor, held in 2008 Nationwide Security and Allied Service
If not motion for reconsideration is filed with NLRC, its decision becomes final and executory, consequently, certiorari under Rule 65 is not available as held in 1998
Zapanta; see also 2005 Lopez Dela Rosa Development Corp. where filing of motion for reconsideration with NLRC is a mandatory requirement to forestall the finality
of the NLRCs decision under Art. 223 and Sec. 14, Rule VII; it is precondition to certiorari, jurisdictional and not mere technicality, otherwise, decision becomes final
after 10 calendar days; see also 2008 Pasiona Jr., where doctrine of finality of judgment was affirmed especially since there was no denial of due process despite the
claim that employees counsel was grossly negligent in failing to elevate case to the Supreme Court; remedy from Court of Appeals to Supreme Court is Rule 45 and
not Rule 65
For a settlement of a dispute, whether in whole or in part, to be valid, it must be in writing and signed by the parties and their counsels before the labor arbiter, held
in 2008 Ilagan; compromise of claims even after final judgment of Supreme Court is valid and has effect of novation, held in 2005 Magbanua; and waiver considered
valid despite absence of lawyer as this is not required for validity; NLRC rules on approval of compromise also applicable to compromise after final judgment and
during pre-execution stage, although law is silent on the latter procedure
J-Phil Marine, Inc vs. NLRC That respondent was not assisted by his counsel when he entered into the compromise does not render it null and void. Eurotech Hair Systems, Inc. v. Go so
enlightens:
A compromise agreement is valid as long as the consideration is reasonable and the employee signed the waiver voluntarily, with a full understanding of what he was
entering into. All that is required for the compromise to be deemed voluntarily entered into is personal and specific individual consent. Thus, contrary to
respondents contention, the employees counsel need not be present at the time of the signing of the compromise agreement.
Zamboanga Barter Traders vs. Plagata - A judgment may be executed on motion within five (5) years from the date of its entry or from the date it becomes final and
executory. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action.
The purpose of the law (or rule) in prescribing time limitations for enforcing judgments or actions is to prevent obligors from sleeping on their rights.
These exceptions have one common denominator, and that is: the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit
or advantage.
PCI Travel Corp. vs. NLRC The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the
Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an
Employment Specialist in a labor case.
Ilagan vs. CA
Should the parties arrive at any agreement as to the whole or any part of the dispute, the same shall be reduced to writing and signed by the parties and their
respective counsels, if any[,] before the Labor Arbiter.
In order to be valid, any agreement arrived at in the course of the mandatory conciliation and mediation conference should be in writing and signed by the parties, or
their counsel, before the Labor Arbiter.
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Labor Contracting
Labor Contracting is the completion or performance of a job, work, or service within a given period. It could be either a job
contracting or labor only contracting.
An independent contractor may be:
a. an individual person or
b. an organization which must be registered
1. Corporation
SEC
2. Partnership
SEC
3. Union
DOLE
4. Cooperative
CDA and DOLE
If any of these organizations engages in labor contracting, it must comply with DO No. 18-A particularly its requirement of
registration. Non-registration creates the presumption that the purported contractor is engaged in labor-only contracting.
TRILATERAL RELATIONSHIP
Trilateral Relationship refers to the relationship in a contracting or subcontracting arrangement where there is a contract for a
specific job, work or service between the principal and the contractor, and a contract of employment between the contractor and its
workers. There are three (3) parties involved in these arrangements: the principal who decides to farm out a job, work or service to a
contractor; the contractor who has the capacity to independently undertake the performance of the job, work or service; and the
contractual workers engaged by the contractor to accomplish the job, work or service.
Section 5. Trilateral relationship in contracting arrangements; Solidary liability. In legitimate contracting or subcontracting arrangement there exists:
(a) An employer-employee relationship between the contractor and the employees it engaged to perform the specific job, work or
service being contracted; and
(b) A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code.
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3)
The agreement between the principal and contractor or subcontractor assures the contractual employees to
entitlement to all labor and occupational safety standards, free exercise of the right to self-organization, security of
tenure, and social and welfare benefits.
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The subcontractor will be treated as the agent of the principal. Since the act of an agent is the act of the
principal, representations made by the subcontractor to the employees will bind the principal.
b.
The principal will become the employer as if it directly employed the workers engaged to undertake the
subcontracted job or service. It will be responsible to them for all their entitlements and benefits under
the labor laws.
c.
The principal and the subcontractor will be solidarily treated as the employer.
d.
The employees will become employees of the principal, subject to the classifications of employees
under Article 28 of the Labor Code.
If the labor-only contracting activity is undertaken by a legitimate labor organization, a petition for cancellation of union registration
may be filed against it, pursuant to Article 239(e).
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Cabo refers to a person or group of persons or to a labor group which, in the guise of a labor organization, cooperative or any entity, supplies workers to an employer, with or
without any monetary or other consideration, whether in the capacity of an agent of the employer or as an ostensible independent contractor.
(e)
Contracting or Subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with a contractor the performance or completion of a specific job,
work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the
principal.
(f)
Contractor refers to any person or entity, including a cooperative, engaged in a legitimate contracting or subcontracting arrangement providing either services, skilled workers,
temporary workers, or a combination of services to a principal under a Service Agreement.
(g)
Contractors employee includes one employed by a contractor to perform or complete a job, work, or service pursuant to a Service Agreement with a principal. It shall also
refer to regular employees of the contractor whose functions are not dependent on the performance or completion of a specific job, work or service within a definite period of
time, i.e., administrative staff.
(h)
In-house agency refers to a contractor which is owned, managed, or controlled directly or indirectly by the principal or one where the principal owns/represents any share of
stock, and which operates solely or mainly for the principal.
(i)
Net Financial Contracting Capacity (NFCC) refers to the formula to determine the financial capacity of the contractor to carry out the job, work or services sought to be
undertaken under a Service Agreement. NFCC is current assets minus current liabilities multiplied by K, which stands for contract duration equivalent to: 10 for one year or less;
15 for more than one (1) year up to two (2) years; and 20 for more than two (2) years, minus the value of all outstanding or ongoing projects including contracts to be started.
(j)
Principal refers to any employer, whether a person or entity, including government agencies and government-owned and controlled-corporations, who/which puts out or farms
out a job, service or work to a contractor.
(k)
Right to control refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but
also the manner and means to be used in reaching that end.
(l)
Service Agreement refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job,
work or service being farmed out for a definite or predetermined period.
(m)
Solidary liability refers to the liability of the principal, pursuant to the provision of Article 109 of the Labor Code, as direct employer together with the contractor for any
violation of any provision of the Labor Code. It also refers to the liability of the principal, in the same manner and extent that he/she is liable to his/her direct employees, to the
extent of the work performed under the contract when the contractor fails to pay the wages of his/her employees, as provided in Article 106 of the Labor Code, as amended.
(n)
Substantial capital refers to paid-up capital stocks/shares of at least Three Million Pesos (P3,000,000.00) in the case of corporations, partnerships and cooperatives; in the case
of single proprietorship, a net worth of at least Three Million Pesos (P3,000,000.00).
Section 6. Prohibition against labor-only contracting. Labor-only contracting is hereby declared prohibited. For this purpose, labor only contracting shall refer to an arrangement where:
(a)
The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are
performing activities which are usually necessaryor desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined
period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal; or
(b)
The contractor does not exercise the right to control over the performance of the work of the employee.
Section 7. Other Prohibitions. Notwithstanding Section 6 of these Rules, the following are hereby declared prohibited for being contrary to law or public policy:
A.
Contracting out of jobs, works or services when not done in good faith and not justified by the exigencies of the business such as the following:
(1)
Contracting out of jobs, works or services when the same results in the termination or reduction of regular employees and reduction of work hours or reduction or
splitting of the bargaining unit.
(2)
(3)
Taking undue advantage of the economic situation or lack of bargaining strength of the contractors employees, or undermining their security of tenure or basic rights, or
circumventing the provisions of regular employment, in any of the following instances:
i.
Requiring them to perform functions which are currently being performed by the regular employees of the principal; and
ii.
Requiring them to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor
standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal, contractor or from any liability as to payment of
future claims.
(4)
(5)
Contracting out of a job, work or service that is necessary or desirable or directly related to the business or operation of the principal by reason of a strike or lockout
whether actual or imminent.
(6)
Contracting out of a job, work or service being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to
self-organization as provided in Art. 248 (c) of the Labor Code, as amended.
(7)
Repeated hiring of employees under an employment contract of short duration or under a Service Agreement of short duration with the same or different contractors,
which circumvents the Labor Code provisions on Security of Tenure.
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B.
(8)
Requiring employees under a subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement,
unless the contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement.
(9)
Refusal to provide a copy of the Service Agreement and the employment contracts between the contractor and the employees deployed to work in the bargaining unit of
the principals certified bargaining agent to the sole and exclusive bargaining agent (SEBA).
(10)
Engaging or maintaining by the principal of subcontracted employees in excess of those provided for in the applicable Collective Bargaining Agreement (CBA) or as set by
the Industry Tripartite Council (ITC).
Contracting out of jobs, works or services analogous to the above when not done in good faith and not justified by the exigencies of the business.
Section 8. Rights of contractors employees. All contractors employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the
rights and privileges as provided for in the Labor Code, as amended, to include the following:
(a)
Safe and healthful working conditions;
(b)
Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13 th month pay, and separation pay as may be provided in the Service
Agreement or under the Labor Code;
(c)
Retirement benefits under the SSS or retirement plans of the contractor, if there is any;
(d)
(e)
(f)
Security of tenure.
Employment contract between the contractor and its employee. Notwithstanding any oral or written stipulations to the contrary, the contract between the contractor and its employee
shall be governed by the provisions of Articles 279 and 280 of the Labor Code, as amended. It shall include the following terms and conditions:
i.
The specific description of the job, work or service to be performed by the employee;
ii.
The place of work and terms and conditions of employment, including a statement of the wage rate applicable to the individual employee; and
iii.
The term or duration of employment that must be co-extensive with the Service Agreement or with the specific phase of work for which the employee is engaged.
The contractor shall inform the employee of the foregoing terms and conditions of employment in writing on or before the first day of his/her employment.
(b)
Service Agreement between the principal and the contractor. The Service Agreement shall include the following:
i.
ii.
The place of work and terms and conditions governing the contracting arrangement, to include the agreed amount of the services to be rendered, the standard
administrative fee of not less than ten percent (10%) of the total contract cost.
iii.
Provisions ensuring compliance with all the rights and benefits of the employees under the Labor Code and these Rules on: provision for safe and healthful working
conditions; labor standards such as, service incentive leave, rest days, overtime pay, 13th month pay and separation pay; retirement benefits; contributions and
remittance of SSS, Philhealth, PagIbig Fund, and other welfare benefits; the right to self-organization, collective bargaining and peaceful concerted action; and the right
to security of tenure.
iv.
A provision on the Net Financial Contracting Capacity of the contractor,which must be equal to the total contract cost.
v.
A provision on the issuance of the bond/s as defined in Section 3(m) renewable every year.
vi.
The contractor or subcontractor shall directly remit monthly the employers share and employees contribution to the SSS, ECC, Philhealth and Pagibig.
vii.
The Service Agreement must conform to the DOLE Standard Computation and Standard Service Agreement, which form part of these Rules as Annexes A and B.
Section 10. Duties of the principal. Pursuant to the authority of the Secretary of Labor and Employment to restrict or prohibit the contracting of labor to protect the rights of the workers and to
ensure compliance with the provisions of the Labor Code, as amended, the principal, as the indirect employer or the user of the services of the contractor, is hereby required to observe the provisions
of these Rules.
Section 11. Security of tenure of contractors employees. It is understood that all contractors employees enjoy security of tenure regardless of whether the contract of employment is co-terminus
with the service agreement, or for a specific job, work or service, or phase thereof.
Section 14. Mandatory Registration and Registry of Legitimate Contractors. Consistent with the authority of the Secretary of Labor and Employment to restrict or prohibit the contracting out of
labor to protect the rights of workers, it shall be mandatory for all persons or entities, including cooperatives, acting as contractors, to register with the Regional Office of the Department of Labor and
Employment (DOLE) where it principally operates.
Section 15. Requirements for registration. The application for registration as a contractor shall be filed at the DOLE Regional Office in the region where it seeks to principally operate. The applicant
shall provide in the application form the following information:
(a)
The name and business address of the applicant and the areas where it seeks to operate;
(b)
The names and addresses of officers, if the applicant is a corporation, partnership, cooperative or a labor organization;
(c)
The nature of the applicants business and the industry or industries where the applicant seeks to operate;
(d)
(e)
The list of clients, if any, the number of personnel assigned to each client, if any, and the services provided to the client;
(f)
The description of the phases of the contract, including the number of employees covered in each phase, where appropriate; and
(g)
Proof of compliance with substantial capital requirement as defined in Section 3(l) of these Rules.
A certified true copy of a certificate of registration of firm or business name from the Securities and Exchange Commission (SEC), Department of Trade and Industry (DTI), Cooperative
Development Authority (CDA), or from the DOLE if the applicant is a labor organization;
(b)
A certified true copy of the license or business permit issued by the local government unit or units where the contractor operates;
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A certified listing, with proof of ownership or lease contract, of facilities, tools, equipment, premises implements, machineries and work premises, that are actually and directly used by
the contractor in the performance or completion of the job, work or service contracted out. In addition, the applicant shall submit a photo of the office building and premises where it
holds office;
(d)
A copy of audited financial statements if the applicant is a corporation, partnership, cooperative or a labor organization, or copy of the latest ITR if the applicant is a sole proprietorship;
and
(e)
A sworn disclosure that the registrant, its officers and owners or principal stockholders or any one of them, has not been operating or previously operating as a contractor under a
different business name or entity or with pending cases of violations of these Rules and/or labor standards, or with a cancelled registration. In case any of the foregoing has a pending
case, a copy of the complaint and the latest status of the case shall be attached.
The application shall be verified. It shall include a DOLE certification of attendance to orientation seminar on these Rules and an undertaking that the contractor shall abide by all applicable labor laws
and regulations.
Section 16. Filing and processing of application. The application with all supporting documents shall be filed in triplicate in the Regional Office where the applicant principally operates. No
application for registration shall be accepted unless all the requirements in the preceding Section are complied with.
Section 17. Verification inspection. Within two (2) working days upon receipt of the application with complete supporting documents, the authorized representative of the Regional Director shall
conduct a verification inspection of the facilities, tools, equipment, and work premises of the applicant.
Section 18. Approval or denial of the application. The Regional Office shall deny or approve the application within one (1) working day after the verification inspection. Applications that fail to meet
the requirements set forth in Section 15 of these Rules shall be denied.
Section 19. Registration fee. Payment of registration fee of Twenty-Five Thousand Pesos (P25,000.00) shall be required upon approval of the application. Upon registration, the Regional Office shall
return one set of the duly-stamped application documents to the applicant, retain one set for its file, and transmit the remaining set to the Bureau of Working Conditions (BWC) within five (5) days
from registration.
Section 20. Validity of certificate of registration of contractors. The contractor shall be deemed registered only on the date of issuance of its Certificate of Registration. The Certificate of Registration
shall be effective for three (3) years, unless cancelled after due process. The same shall be valid in the region where it is registered.
In case the contractor has Service Agreements or operates outside the region where it is registered, it shall request a duly authenticated copy of its Certificate of Registration from the registering
Regional Office and submit the same to the DOLE Regional Office where it seeks to operate, together with a copy of its Service Agreement/s in the area, for purposes of monitoring compliance with
these Rules.
Section 23. Grounds for cancellation of registration. The Regional Directorshall, upon a verified complaint, cancel or revoke the registration of a contractor after due process, based on any of the
following grounds:
(a)
(b)
Submission of a falsified or tampered application or supporting documentsto the application for registration;
(c)
Non-submission of Service Agreement between the principal and the contractor when required to do so;
(d)
Non-submission of the required semi-annual report as provided in Section 22 (Semi-annual reporting) hereof;
(e)
Findings through arbitration that the contractor has engaged in labor-only contracting and/or the prohibited activities as provided in Section 7 (Other Prohibitions) hereof;
(f)
(g)
Findings of violation of Section 8 (Rights of contractors employees) orSection 9 (Required contracts) of these Rules;
(h)
Non-compliance with SSS, the HDMF, Pag-Ibig, Philhealth, and ECC laws; and
(i)
Collecting any fees not authorized by law and other applicable rules and regulations.
Section 24. Due process in cancellation of registration. Complaint/s based on any of the grounds enumerated in the preceding Section against the contractor shall be filed in writing and under oath
with the Regional Office which issued the Certificate of Registration.
(a)
(b)
(c)
(d)
(e)
(f)
Upon receipt of the complaint, the Regional Director shall direct the contractor, with notice to the complainant, to file a verified answer/counter affidavit within ten (10) calendar days without
extension, incorporating therein all pertinent documents in support of his/her defenses, with proof of service of a copy to the complainant. Failure to file an answer/counter affidavit shall constitute a
waiver on the part of the respondent. No motion to dismiss shall be entertained.
The Regional Director or his duly authorized representative may conduct a clarificatory hearing within the prescribed ten (10) calendar days within which to file a verified answer/counter affidavit.
Within the said ten (10) calendar days period, the contractor shall make the necessary corrections/rectifications on the violations that are immediately rectifiable upon its own initiative in order to be
fully compliant.
The Regional Director may avail himself of all reasonable means to ascertain the facts of the case, including conduct of inspection, where appropriate, and examination of informed persons.
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Section 25. Appeal. The Order of the Regional Director is appealable to the Secretary within ten (10) working days from receipt of the copy of the Order. The appeal shall be filed with the Regional
Office which issued the cancellation Order. The Office of the Secretary shall have thirty (30) working days from receipt of the records of the case to resolve the appeal. The Decision of the Secretary
shall become final and executory after ten (10) days from receipt thereof by the parties. No motion for reconsideration of the Decision shall be entertained.
Section 26. Effects of cancellation of registration. A final Order of cancellation shall divest the contractor of its legitimate status to engage in contracting/subcontracting.
Such Order of cancellation shall be a ground to deny an application for renewal of registration to a contractor under the Rules. The cancellation of the registration of the contractor for engaging in
labor-only contracting or for violation of any of the provisions of these Rules involving a particular Service Agreement will not, however, impair the validity of existing legitimate job contracting
arrangements the contractor may have entered into with other principals prior to the cancellation of its registration. Any valid and subsisting Service Agreement shall be respected until its expiration;
thereafter, contracting with a delisted contractor shall make the principal direct employer of all employees under the Service Agreement pursuant to Articles 106 and 109 of the Labor Code.
WAGE INCREASES; LEGISLATED & CONTRACTUAL; EFFECT ON PRINCIPAL & CONTRACTORS LIABILITY
RA 6727
Section 6. In the case of contracts for construction projects and for security, janitorial and similar services, the prescribed increases in the wage rates
of the workers shall be borne by the principals or clients of the construction/service contractors and the contract shall be deemed amended
accordingly. In the event, however, that the principal or client fails to pay the prescribed wage rates, the construction/service contractor shall be
jointly and severally liable with his principal or client.
EMPLOYMENT & WORKING CONDITIONS OF SECURITY GUARDS (Department Order No. 14, series of 2001)
Section 8. Liability and responsibilities of contractors and clients/principals.
8.1 Joint and several liability. When the security service contractor fails to pay the wages of its security guards/personnel, the principal shall be jointly and severally liable
with the security service contractor to the extent of the work performed by such em-ployees under the contract, in the same manner and extent that the principal is liable
to its direct employees.
If there are wage increases or adjustments after the execution of the service contract, the prescribed increases in the wage rates of guards shall be borne by the principal
and the service contract shall be deemed amended accordingly. In the event that the principal fails to pay the prescribed increases, the security service contractor shall be
jointly and severally liable with the principal.
The security guards' contractual relationship is with their employer, the security ser-vice contractor. Thus, their immediate recourse for payment of wage increase before
litigation is with their direct employer, the security service contractor. In order for the security service contractor to comply with the new rates, the consideration paid by
the principal for the security guards' wages has to be adjusted in conformity with the mandated wage increase.
In case of finding of violations on wages and other labor standards due the security guards, the DOLE Regional Director shall serve summons to both the security service
con-tractor and the principal to determine the extent of liability of the parties.
8.2 Solidary liability. For purposes of immediate relief, the principal shall be deemed as the direct employer of the security guard/personnel in any of the following cases,
and therefore shall be solidarily liable for whatever monetary claims the security guard/personnel may have against his employer:
a.
When the security service contractor is found to be engaged in labor-only contract-ing; contracting out of work which will either displace its employees or
reduce their regular work hours or any other prohibited activity;
b.
When the security service contractor is declared guilty of unfair labor practice, i.e., contracting out of a job, work or service being performed by union
members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; or
c.
When a violation of the relevant provisions of the Labor Code has been established by the Regional Director in the exercise of his/her enforcement powers.
The principal shall also be deemed solidarily liable with the security service contractor to the extent of accrued claims and benefits that the latter may owe to its security
guards/personnel in the following instances:
a.
When the license or business permit of the security service contractor is cancelled, revoked or not renewed by the competent authority, or
b.
When the contract between the principal and the security service contractor is preterminated for reasons not attributable to the fault of the latter.
8.3. Responsibilities and Obligations of Security Service Contractors and Principals in the Execution of Service Contracts. The service contracts or agreements between a
security service contractor and its principal/s shall ensure compliance with the minimum wage and other labor standards under the laws, including the mandatory coverage
by the SSS, EC, Philhealth and HDMF.
Government agencies or instrumentalities engaging security services from private security agencies shall likewise observe compliance with all labor laws and shall require
the security service contractor to submit, among others requirements and as part of their bid, an under-taking to pay their workers the above benefits.
8.4. Keeping of records. The principals as indirect employers shall keep and maintain their own separate records or files on the assignment of security guards in their
premises during the period of the service contract, which shall be open for inspection and verification by this Department. The security agency, however, as the direct
employer shall observe the rule on general record keeping under the Labor Code, as amended.
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Manpower cooperatives should register as a contracting or subcontracting entity pursuant to D.O. 18-02. The venue for
registration shall be the DOLE regional office having jurisidiction over the manpower cooperative. There shall be a 30-day
period within which to register, to be counted from the circular's date of effectivity (i.e., immediately after publication).
Manpower cooperatives that fail to register within the said period shall be presumed to be engaged in labor-only
contracting.
All DOLE regional offices shall continue to enforce and monitor compliance with D.O. 18-02 insofar as manpower
cooperatives are concerned.
Members of cooperatives as owners and not employees
Cooperatives organized under RA 6938, otherwise known as The Cooperative Code of the Philippines are composed of members.
Members of cooperatives are not employees. As such, issues on termination of their membership with the cooperative do not fall
within the jurisdiction of the Labor Arbiter.
REVIEW QUESTIONS
EXAMPLE: IF USC HIRED SERVICES OF A SECURITY AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL, IS THAT A CONTRACTING ARRANGEMENT? YES. BECAUSE USC
DECIDED NOT TO HIRE SECURITY GUARDS DIRECTLY, INSTEAD, THEY HIRED THE SERVICES OF AN AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL.
WHY IS IT THAT EMPLOYERS ENGAGE IN CONTRACTING ARRANGEMENT RATHER THAN DIRECT HIRING?
ANS: BECAUSE OF THE EXPERTISE & EXPERIENCE OF THE AGENCIES & ALSO FOR REASONS OF ECONOMY ( REDUCING COST FOR TRAININGS ETC).
IS A CONTRACTING ARRANGEMENT THE SAME AS RECRUITMENT & PLACEMENT?
ANS: NO. THE RULES IN CONTRACTING ARRANGEMENT EXCLUDE RECRUITMENT & PLACEMENT.
WHO MAY APPLY/REGISTER AS A CONTRACTOR?
ANS: ANY PERSON (WHETHER NATURAL OR JURIDICAL INCLUDING UNIONS) AS LONG AS IT COMPLIES WITH THE REQUIREMENTS.
WHAT IF USC DEFAULTS THE PAYMENT OF SERVICES OF SECURITY AGENCY, IS THERE A CAUSE OF ACTION.
ANS: YES DUE TO BREACH OF DUTY.
WHAT IS THE ACTION?
ANS: FILE A CIVIL DISPUTE (NOTE: IT MUST BE RAISED IN A REGULAR COURT)
WHAT IS THE OBLIGATION OF USC TO THE SECURITY GUARDS?
1.
AS AN INDIRECT EMPLOYER - THERE IS A LIABLITY OF USC IF THE SECURITY AGENCY DEFAULTS ITS PAYMENT OF WAGES ONLY TO THE EXTENT OF WORK
PERFORMED BY THE SECURITY GUARDS.
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AS A PRINCIPAL AS A RULE, USC AS AN INDIRECT EMPLOYER OF SECURITY GUARDS HAS NO OBLIGATION TO THEM. BUT, IN CASE THE SECURITY AGENCY
DEFAULTED PAYMENT OF SALARY OF THE SECURITY GUARDS, THEN, THE PRINCIPAL(USC) HAS THE OBLIGATION TO PAY THE WAGES BEC HE BECOMES A
DIRECT EMPLOYER ONLY FOR A LIMITED PURPOSE OF PAYING WAGES AS IF THE PRINCIPAL(USC) EMPLOYED THE GUARDS HIMSELF.
WHAT IS THE CONSTITUTIONAL BASIS FOR THIS RULE OF HOLDING THE PRINCIPAL JOINTLY & SEVERALLY LIABLE WITH THE CONTRACTOR?
ANS: THE PROTECTION TO LABOR CLAUSE.
IS IT UNFAIR THAT THE PRINCIPAL WILL ALSO BE HELD LIABLE FOR DEFAULTS IMPUTABLE TO THE CONTRACTOR?
ANS: NO, IT IS NOT BECAUSE THE PRINCIPAL IS ALLOWED REIMBURSEMENT WITH WHATEVER HE HAS PAID TO THE SECURITY GUARDS.
WHO ARE THE TWO (2) TYPES OF EMPLOYERS IN CONTRACTING ARRANGEMENT?
1.
DIRECT EMPLOYER E.G. SECURITY AGENCY OF SECUIRTY GUARDS OR ANY PERSON WHO HAVE PERSONS IN ITS EMPLOY. USC IS A DIRECT EMPLOYER
REGARDING ITS TEACHERS.
2.
INDIRECT EMPLOYER KNOWN AS STATUTORY EMPLOYER. USC AS TO SEC GUARDS OF SECURITY AGENCY.
IF JOHN HAS NO EMPLOYEES & HIRES SERVICES OF A BLDG CONTRACTOR AND THE BLDG CONTRACTOR ALSO HIRES CONSTRUCTION WORKERS. IS JOHN A DIRECT
EMPLOYER?
ANS: NO, BECAUSE HE HAS NO EMPLOYEES OF HIS OWN.
WHAT IS JOHNS RELATION TO THE CONSTRUCTION WORKERS?
HE IS AN INDIRECT EMPLOYER.
WHAT IF THE CONTRUCTION WORKERS HIRED BY THE BLDG CONTRACTOR WERE NOT PAID THEIR WAGES?
ANS: JOHNS LIABILITY IS THAT OF A DIRECT EMPLOYER. HE IS JOINTLY AND SEVERALLY LIABLE WITH THE CONTRACTOR.
The principal has limited liability. Should the contractor fail to pay the wages, the principal is liable only to the extent of the work performed and only with respect to the
payment of wages
The principal is jointly and severally liable with the subcontractor for payment of all employees wages to the extent of the work performed under the contract
IS LABOR CONTRACTING ILLEGAL PER SE?
ANS: LABOR CONTRACTING IS NOT ILLEGAL PER SE ONLY WHEN IT IS LABOR ONLY CONTRACTING THAT IT BECOMES ILLEGAL.
WHO IS AN INDIVIDUAL INDEPENDENT CONTRACTOR?
ANS: INDIVIDUALS WITH SPECIAL SKILLS, EXPERTISE OR TALENT ENJOY THE FREEDOM TO OFFER THEIR SERVICES AS INDEPENDENT CONTRACTORS.
WHAT IS THE MEANING OF WAGES IN CONTRACTING AGREEMENT?
ANS: IT IS NOT LIMITED TO A MINIMUM WAGE BUT IT ALSO COVERS LABOR STANDARD BENEFITS (HOLIDAY, 13TH MONTH, PREMIUM PAY).
DOES IT INCLUDE RETIREMENT PAY?
ANS: NO.
DOES IT INCLUDE SEPARATION PAY?
ANS: NO, IT IS THE SOLE OBLIGATION OF THE CONTRACTOR. IT IS NOT FOUND IN LABOR CODE.
WHAT IS THE LIABILITY OF AN INDIRECT EMPLOYER IF THERE IS AN INCREASE IN WAGE RATES?
ANS: THE CONTRACT IS DEEMED AMENDED; THEREFORE USC WILL AUTOMATICALLY INCLUDE THE INCREMENT ON THE MINIMUM WAGE.
WHO SHOULD PAY THE INCREASE IN WAGE RATES?
ANS: SEC AGENCY SHOULD PAY THE SEC GUARDS AS THEIR EMPLOYER. THE GUARDS SHOULD NOT GO AFTER UNLESS THE CONTRACTOR REFUSES TO PAY.
WHAT IF CONTRACTOR REFUSES TO PAY THE EES ON THE INCREASE WAGE RATE?
ANS: EMPLOYEES CAN DEMAND FROM THE PRINCIPAL.
WHAT IF THE PRINCIPAL REFUSES TO PAY THE EMPLOYEES ON THE INCREASE WAGE RATE, IS THE PRINCIPAL JUSTIFIED?
ANS: IT IS NOT ALLOWED BEC HE IS JOINTLY & SEVERALLY LIABLE W/ THE CONTRACTOR.
IF THE PRINCIPAL PAYS, IS HE ENTITLED TO REIMBURSEMENT BY THE CONTRACTOR?
ANS: NO. THE LAW IS CLEAR THAT IF THERE IS AN INCREASE IN WAGE RATE IT SHALL BE BORNE BY THE PRINCIPAL.
Note: This is a different liability of the principal from the unpayment of wages of the employees by the contractor because in the latter the principal is entitled to
reimbursement.
UPDATES
General Santos Coca-Cola Plant Free Workers Union-TUPAS vs. Coca-Cola Bottlers Phils, Inc., (Gen. Santos City) et al., G.R. No. 178647, Feb. 13, 2009 decision to
freeze hire due to decease in sales and tougher competition, and to hire services of contractor to perform jobs in the production to meet business exigencies
considered valid, and does not constitute unfair labor practice as it was not directed at the members right to self-organization
2006 Aboitiz Haulers, Inc., labor only contracting exists when the following criteria are present: (a) where the person supplying workers to an employer does not
have substantial capital or investment , (b) the workers recruited and placed by such person are performing activities which are directly related to the principal
business of such employer; and (c) the contractor does not exercise the right of control the performance of the work of the contractual employee. All three
aforementioned criteria need not to be present. If the contractor enters into an arrangement characterized by any one of the criteria provided, this is labor-only
contracting.; see also 2007 Government Service & Insurance System , where the GSIS cannot evade liability by claiming it had fully paid the workers salaries by
incorporating in the security service contract the salary increases mandated by the wage orders by increasing the contract price of per guard . There is no do uble
burden of paying twice for the workers services, since under Art. 1217 of the Civil Code, if the GSIS should pay the monetary claims, it has the right to recover from
the contractor whatever amount it has paid , citing 1998 case of Rosewood Processing , Inc;
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Illegal contracting out of job of salesmen , the contractor having no substantial capital, only P625th paid up, held in 2009 CCBPI; the sales job is indispensable to
business of CCBPI ; contractor is merely recruiter and supplier of workers ; DOLE registration as contractor not conclusive since registration of for janitorial service
and not for selling ; contract failed to state what specific job subject of contracting ; CCBPI prescribed the criteria that contractor needs to follow ; workers used the
tools of CCBPI ; contractor did not exercise control , and element of control is exercised by CCBPI based on the terms of the contract.
ROLANDO SASAN, SR., et. al., vs. NLRC, E-PCI BANK and HELPMATE, INC.
o
The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of
the principal.
o
While these services rendered by the petitioners as janitors, messengers and drivers are considered directly related to the principal business of a bank, in this
case E-PCIBank, nevertheless, they are not necessary in the conduct of its (E-PCIBANKs) principal business.
WORKERS PREFERENCE
Article 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employers 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)
Scope
Workers preference covers both unpaid wages and monetary claims
Worker preference in case of bankruptcy
In the event of bankruptcy or liquidation of an employers 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.
Distinction between a preference of credit and a lien
A preference applies only to claims which do not attach to specific properties. A lien creates a charge on a particular property. The
right of first preference as regards unpaid wages recognized by Article 110 does not constitute a lien on the property of the insolvent
debtor in favor of workers. It is but a preference of credit in their favor, a preference in application. It is a method adopted to
determine and specify the order in which credits should be paid in the final distribution of the proceeds of the insolvent's assets. It is
a right to a first preference in the discharge of the funds of the judgment debtor. (DBP vs. NLRC)
Effect of CORPORATE REHABILITATION on pending actions
Upon appointment of a management committee, the rehabilitation receiver, board or body, pursuant to this Decree, all actions
for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal,
board or body shall be suspended accordingly. (Section 6(c) of PD 902-A)
PAL vs. Zamora
GR. No. 166996, Feb. 6, 2007
HELD:
Petitioners PAL, et al. are of the view that the proceedings in the instant case should have been suspended on account of the appointment of its permanent rehabilitation
receiver. They posit that "the suspension automatically applies on all stages of the proceedings including enforcement of final and executory judgments. The proceedings
shall remain suspended until the receivership shall have been ordered lifted by the Securities and Exchange Commission. To date, (petitioner) PAL is still under permanent
Rehabilitation Receiver."
The relevant law dealing with the suspension of actions for claims against corporations is Presidential Decree No. 902-A, as amended. Particularly, Section 5 (d) which reads:
SECTION 5. In addition to the regulatory adjudicative functions of the Securities and Exchange Commission over corporations, partnerships and other forms of associations registered with it as
expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to hear and decide cases involving:
xxx xxx xxx
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The term "claim," as contemplated in Sec. 6 (c) of Presidential Decree No. 902-A, refers "to debts or demands of a pecuniary nature. It means 'the assertion of a right to
have money paid.'"
Obviously, the real justification is to enable the management committee or rehabilitation receiver to effectively exercise its/his powers free from any judicial or extra-judicial
interference that might unduly hinder or prevent the "rescue" of the debtor company. To allow such other action to continue would only add to the burden of the
management committee or rehabilitation receiver, whose time, effort and resources would be wasted in defending claims against the corporation instead of being directed
toward its restructuring and rehabilitation.
Otherwise stated, no other action may be taken in, including the rendition of judgment during the state of suspension what are automatically stayed or suspended are
the proceedings of an action or suit and not just the payment of claims during the execution stage after the case had become final and executory.
The suspension of action for claims against a corporation under rehabilitation receiver or management committee embraces all phases of the suit, be it before the trial
court or any tribunal or before this Court. Furthermore, the actions that are suspended cover all claims against a distressed corporation whether for damages founded on a
breach of contract of carriage, labor cases, collection suits or any other claims of a pecuniary nature.
In the case at bar, the appellate court's pronouncement that in "disallowing the enforcement to the claim . . . it would unnecessarily add to the burden of management,
does not justify the aggravation caused in the delay in execution of the judgment in favor of Zamora," is quite myopic. In actual fact, allowing such actions to proceed would
only increase the work-load of the management committee or the rehabilitation receiver, whose precious time and effort would be dissipated and waste d in defending
suits against the corporation, instead of being channeled toward restructuring and rehabilitation.
As to the appellate court's amended directive that "the monetary claims of petitioner Zamora must be presented to the PAL Rehabilitation Receiver, subject to the rules on
preference of credits," the same is erroneous for there has been no declaration of bankruptcy or judicial liquidation. Thus, the rules on preference of credits do not apply.
REVIEW QUESTIONS
EXAMPLE: I OWN A COMPANY ENGAGED IN MANUFACTURING BUSINESS. I AM THE PRES & YOU ARE ALL MY EMPLOYEES & MS. AGOT IS MY GEN MANAGER WHO
OVERSEES MY EMPLOYEES & I PAY HER 500K A MONTH. I GET WATER FROM MAYNILAD & ELECTRIC FROM VECO. I WANTED TO BORROW MONEY FROM A BANK, BUT THE
BANK ASKED FOR A COLLATERAL, I GUARANTEED MY PROPERTY. BANK AGREED FOR A REAL ESTATE MORTGAGE. AFTER RELEASE OF MONEY, I WENT TO CASINO & LOST
SUBSTANTIAL MONEY. I HAVE NO MORE MONEY TO PAY THE EMPLOYEES. WORSE, BANK NOTIFIED FORECLOSURE OF THE MORTGAGE. I FAILED TO REDEEM & I WAS
EVICTED & WAS FORCED TO CLOSE MY BUSINESS. I OWE VECO, I OWE MAYNILAD, I OWE THE GOVERNMENT, AND I OWE MY EMPLOYEES.
WOULD YOU CONSIDER YOURSELF AS WORKERS UNDER ART 110?
YES, ART. 110
DO YOU HAVE WORKERS PREFERENCE IN THIS CASE? YES.
IS YOUR WORKERS PREFERENCE LIMITED TO UNPAID WAGES?
ANS: NO. IT ALSO INCLUDES OTHER MONETARY CLAIMS.
CAN YOU SUE YOUR EMPLOYER IN THE LABOR ARBITER? ANS: YES, BECAUSE I HAVE A CAUSE OF ACTION.
WHAT WILL YOU DO IN ORDER TO ASSERT YOUR WORKERS PREFERENCE?
ANS: I WILL FILE A PETITION TO DECLARE MY COMPANY BANKCRUPT IN THE REGULAR COURT. ONCE THE COURT HAS DECLARED THE COMPANY BANKCRUPT THAT IS
THE TIME I CAN EXERCISE MY PREFERENCE. I WILL FILE IN REGULAR COURTS.
WHY DOES THE LAW REQUIRE JUDICIAL DECLARATION OF BANKRUPTCY OR LIQUIDATION?
ANS: INORDER TO GIVE CREDITORS THE OPPORTUNITY TO PRESENT THEIR CLAIMS.
WOULD THE WORKERS PREFERENCE BE SUPERIOR AGAINST BANK MORTGAGE CREDIT?
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UPDATES
2005 Barrayoga , where workers preference under Art.110 is considered an ordinary preferred credit ; it is first priority in order of preference under Art. 2244 of Civil
Code but not over special preferred credits under Art. 2241 & 2242 , like mortgage credit . It cannot apply outside a bankruptcy or judicial liquidation proceeding.
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A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions:
(6)
(7)
he/she represents a legitimate labor organization, as defined under Article 212 and 242 of the Labor Code, as amended, which is
a party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or
initial hearing
1. a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and
Employment attesting that the organization he/she represents is duly registered and listed in the roster of legitimate
labor organizations;
2. a verified certification issued by the secretary and attested to by the president of the said organization stating that
he/she is authorized to represent the said organization in the said case; and
3. a copy of the resolution of the board of directors of the said organization granting him such authority;
(8)
he/she represents a member or members of a legitimate labor organization that is existing within the employer's establishment,
who are parties to the case: Provided, that he/she presents;
4. a verified certification attesting that he/she is authorized by such member or members to represent them in the
case; and
5. a verified certification issued by the secretary and attested to by the president of the said organization stating that
the person or persons he/she is representing are members of their organization which is existing in the employer's
establishment;
(9)
he/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the
Philippines: Provided, that he/she:
6. presents proof of his/her accreditation; and
7. represents a party to the case;
(10) he/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents:
8. a verified certification attesting that he/she is authorized to represent said corporation or establishment; and
9. a copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued
by said establishment, granting him/her such authority.
i)
Appearances of a non-lawyer in contravention of this section shall not be recognized in any proceedings before the Labor Arbiter or the
Commission.
j)
Appearances may be made orally or in writing. In both cases, the complete name and office address of counsel or authorized
representative shall be made of record and the adverse party or his counsel or authorized representative properly notified.
k)
In case of change of address, the counsel or representative shall file a notice of such change, copy furnished the adverse party and counsel
or representative, if any.
l)
Any change or withdrawal of counsel or authorized representative shall be made in accordance with the Rules of Court. (8a)
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MCLE compliance
2008 Atty. Ortiz , involving a petition with the Supreme Court to recover attorneys fees from the employer bases on NLRCs decision after the lawyers clients agreed
to accept settlement of their cases without the lawyers conformity; since award pertains to the employees and not to the lawyer as indemnity for damages, the
former can waive the same and the lawyer has no legal standing (not the real party in interest) to prosecute the same against the employer; even if the lawyers
clients agreed to treat the award of attorneys fees as lawyers fees, the 10 % should be based on the amount that his clients have agreed to accept as settlement , as
this is considered the amount of wages recovered; remedy of lawyer who is aggrieved is to sue his clients; quit claim executed by client does not require conformity
of his counsel to be valid , citing 2005 Danzas Intercontinental , Inc.; award of attorneys fees under Art. 111 does not require proof that employer acted maliciously
or in bad faith
Motion to enforce attorneys lien filed with labor arbiter during execution stage , to recover contingent fee as agreed in writing with client is valid , held in 2009
Masmud; Art. 111 on 10 % limitation applies only to extraordinary attorneys fees and to ordinary attorneys fees
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Omnibus Rules
Section 11. Qualifications of apprentices. - To qualify as apprentice, an applicant shall:
(a) Be at least fifteen years of age; provided those who are at least fifteen years of age but less than eighteen may be eligible for
apprenticeship only in non-hazardous occupations;
(b)
(c)
Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and
(d)
Possess the ability to comprehend and follow oral and written instructions.
Trade and industry associations may, however, recommend to the Secretary of Labor and Employment appropriate educational qualifications for
apprentices in certain occupations. Such qualifications, if approved, shall be the educational requirements for apprenticeship in such occupations
unless waived by an employer in favor of an applicant who has demonstrated exceptional ability. A certification explaining briefly the ground for such
waiver, and signed by the person in charge of the program, shall be attached to the apprenticeship agreement of the applicant concerned.
IMPORTANCE
Article 57. Statement of objectives. This Title aims:
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NATURE
Omnibus Rules
Section 3. Voluntary nature of apprenticeship program. - The organization of apprenticeship program shall be primarily a voluntary undertaking of
employers, except as otherwise provided.
Article 70. Voluntary organization of apprenticeship programs; exemptions.
The organization of apprenticeship program shall be primarily a voluntary undertaking by employers;
When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory
training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as
determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and
Employment as the need arises; and
Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate
apprenticeship programs.
Section 41. Compulsory apprenticeship. (a) When grave national emergencies, particularly those involving the security of the state, arise or particular requirements of economic
development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory
training of apprentices required in a certain trades, occupations, jobs or employment levels where shortage of trained manpower is
deemed critical;
(b)
Where services of foreign technicians are utilized by private companies in apprenticeable trades said companies are required to set up
appropriate apprenticeship programs.
QUALIFIED EMPLOYERS
Article 60. Employment of apprentices. Only employers in the highly technical industries may employ apprentices and only in apprenticeable
occupations approved by the Secretary of Labor and Employment. (As amended by Section 1, Executive Order No. 111, December 24, 1986)
Section 8. Trades to be included in apprenticeship programs. - Only trades and occupations declared apprenticeable by the Secretary of Labor and
Employment may be included in apprenticeship programs.
Section 9. Who may establish programs. - Any entity, whether or not organized for profit may establish or sponsor apprenticeship programs and
employ apprentices.
Section 15. Apprenticeable trades. - The Bureau shall evaluate crafts and operative, technical, nautical, commercial, clerical, technological,
supervisory, service and managerial activities which may be declared apprenticeable by the Secretary of Labor and Employment and shall have
exclusive jurisdiction to formulate model national apprenticeship standards therefor.
APPROVAL OF DOLE
Article 65. Investigation of violation of apprenticeship agreement. Upon complaint of any interested person or upon its own initiative, the appropriate
agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement
pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment.
INCENTIVES OF EMPLOYER
Article 71. Deductibility of training costs. An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses
incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship
program: Provided, That such program is duly recognized by the Department of Labor and Employment: Provided, further, That such deduction shall
not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this
incentive should pay his apprentices the minimum wage.
Article 72. Apprentices without compensation. The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation
whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination.
Section 42. Certification from Apprenticeship Division. - An employer desiring to avail of the tax deduction provided under the Code shall secure from
the Apprenticeship Division a certification that his apprenticeship program was operational during the taxable year concerned. Such certification shall
be attached to the employer's income tax returns for the particular year. Guidelines for the issuance of such certification shall be prepared by the
Bureau and approved by the Secretary of Labor and Employment.
DURATION
Section 19. Apprenticeship period. - The period of apprenticeship shall not exceed six (6) months.
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HOURS OF WORK
SECTION 20. Hours of work. Hours of work of the apprentice shall not exceed the maximum number of hours of work prescribed by law, if any, for a
worker of his age and sex. Time spent in related theoretical instructions shall be considered as hours of work and shall be reckoned jointly with onthe-job training time in computing in the agreement the appropriate periods for giving wage increases to the apprentice.
An apprentice not otherwise barred by law from working eight hours a day may be requested by his employer to work overtime and paid accordingly,
provided there are no available regular workers to do the job, and the overtime work thus rendered is duly credited toward his training time.
ENFORCEMENT OF AGREEMENT
Article 65. Investigation of violation of apprenticeship agreement. Upon complaint of any interested person or upon its own initiative, the appropriate
agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement
pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment.
Article 67. Exhaustion of administrative remedies. No person shall institute any action for the enforcement of any apprenticeship agreement or
damages for breach of any such agreement, unless he has exhausted all available administrative remedies.
SECTION 24. Enforcement of agreement. No person shall institute any action for the enforcement of any apprenticeship agreement or for damages
for breach thereof, unless he has exhausted all available administrative remedies. The plant apprenticeship committee shall have initial responsibility
for settling differences arising out of apprenticeship agreements.
TERMINATION OF APPRENTICESHIP
SECTION 25. Valid cause to terminate agreement. Either party to an agreement may terminate the same after the probationary period only for a
valid cause. The following are valid causes for termination:
By the employer
(a) Habitual absenteeism in on-the-job training and related theoretical instructions;
(b)
(c)
Poor physical condition, permanent disability or prolonged illness which incapacitates the apprentice from working;
(d)
(e)
Poor efficiency or performance on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and
(f)
Engaging in violence or other forms of gross misconduct inside the employer's premises.
By the apprentice
(a) Substandard or deleterious working conditions within the employer's premises;
(b)
(c)
(d)
Personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job; and
(e)
LEARNERS
Article 73. Learners defined. Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and
which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months.
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Learnership agreement. - Any employer desiring to employ learners shall enter into a learnership agreement with them, which
agreement shall include:
(a) The names and addresses of the learners;
(b) The duration of the learnership period, which shall not exceed three (3) months;
(c) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable
minimum wage; and
(d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All
learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if
training is terminated by the employer before the end of the stipulated period through no fault of the learners.
The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized
representative.
ART. 76. Learners in piecework. - Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done.
Article 77. Penalty clause. Any violation of this Chapter or its implementing rules and regulations shall be subject to the general penalty clause
provided for in this Code.
HANDICAPPED WORKERS
Article 78. Definition. Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury.
Article 79. When employable. Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment
opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.
When employable?
1. Employment is necessary to prevent curtailment of employment opportunities
2. When it does not create unfair competition in labor costs or impair or lower working standards.
Article 80. Employment agreement. Any employer who employs handicapped workers shall enter into an employment agreement with them, which
agreement shall include:
The names and addresses of the handicapped workers to be employed;
The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage;
The duration of employment period; and
The work to be performed by handicapped workers.
The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative.
Article 81. Eligibility for apprenticeship. Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or
learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
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Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled
to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled
persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their
employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his
disability, skills and qualifications.
c)
Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an
additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This Section,
however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344.
A minimum of twenty percent (20%) discount on admission fees charged by theaters, cinema houses, concert halls, circuses, carnivals and other similar places
of culture, leisure and amusement for the exclusive use or enjoyment of persons with disability;
(c)
At least twenty percent (20%) discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability;
(d)
At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized
tomography scans and blood tests, in all government facilities, subject to guidelines to be issued by the Department of Health (DOH), in coordination with the
Philippine Health Insurance Corporation (PHILHEALTH);
(e)
At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees, and professional fees of attending doctors in all
private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with the PHILHEALTH;
(f)
At least twenty percent (20%) discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability;
(g)
At least twenty percent (20%) discount in public railways, skyways and bus fare for the exclusive use and enjoyment of persons with disability;
(h)
Educational assistance to persons with disability, for them to pursue primary, secondary, tertiary, post tertiary, as well as vocational or technical education, in
both public and private schools, through the provision of scholarships, grants, financial aids, subsidies and other incentives to qualified persons with disability,
including support for books, learning materials, and uniform allowance to the extent feasible: Provided, That persons with disability shall meet minimum
admission requirements;
(i)
To the extent practicable and feasible, the continuance of the same benefits and privileges given by the Government Service Insurance System (GSIS), Social
Security System (SSS), and PAG-IBIG, as the case may be, as are enjoyed by those in actual service;
(j)
To the extent possible, the government may grant special discounts in special programs for persons with disability on purchase of basic commodities, subject
to guidelines to be issued for the purpose by the Department of Trade and Industry (DTI) and the Department of Agriculture (DA); and
(k)
Provision of express lanes for persons with disability in all commercial and government establishments; in the absence thereof, priority shall be given to them.
The abovementioned privileges are available only to persons with disability who are Filipino citizens upon submission of any of the following as proof of his/her entitlement
thereto:
(I)
An identification card issued by the city or municipal mayor or the barangay captain of the place where the persons with disability resides;
(II)
(III)
Transportation discount fare Identification Card (ID) issued by the National Council for the Welfare of Disabled Persons (NCWDP).
The privileges may not be claimed if the persons with disability claims a higher discount as may be granted by the commercial establishment and/or under other existing
laws or in combination with other discount program/s.
The establishments may claim the discounts granted in sub-sections (a), (b), (c), (e), (f) and (g) as tax deductions based on the net cost of the goods sold or services
rendered: Provided, however, That the cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is
granted: Provided, further, That the total amount of the claimed tax deduction net of value-added tax if applicable, shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code (NIRC), as amended.
REVIEW POINTS
QUALIFICATIONS
A. Apprentices:
(1) Must be fifteen (15) years old or above;
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EMPLOYMENT OF WOMEN
SEC. 14, ART II, CONSTITUTION & SEC. 14, ART. XIII
Art. II, Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of
women and men.
Art. XIII, Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the
service of the nation.
NOTE: Women belong to a vulnerable type of workers. Thats why there is a special law for employment of women.
Q: What specific provision in the Constitution protects women in the workplace?
A: The role of women in nation building (A2S21987Consti)
NOTE: Men and women are equal before the law. If womens rights are violated it is against equal protection clause.
Q: What is the treaty against discrimination of women?
A: The CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION OF WOMEN (1979)
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To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women;
(c)
To establish a nursery in a workplace for the benefit of the women employees therein; and
(d)
To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight
attendants and the like.
The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion
or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may
be charged.
(c)
The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after
the effectivity of this Code.
That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be
transmitted to the SSS in accordance with the rules and regulations it may provide;
(b)
The full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application;
(c)
That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same period for
which daily maternity benefits have been received;
(d)
That the maternity benefits provided under this section shall be paid only for the first four (4) deliveries or miscarriages;
(e)
That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount of maternity benefits advanced to
the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and
(f)
That if an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by
her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the
employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to.
A covered female employee shall be paid a daily maternity benefits equivalent to 100% of her present BASIC SALARY, ALLOWANCE, &
OTHER BENEFITS or the cash equivalent of such benefits for:
7. 60 days normal delivery
8. 78 days caesarian delivery, PROVIDED she:
a. has paid at least 3 monthly maternity contributions in the 12 month period preceding the semester of her childbirth or
miscarriage; AND
b. is currently employed.
Not Part of 13th-Month Pay
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In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and
Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any
establishment or enterprise.
Q: What type of employer would need to provide family planning services in the workplace?
A: Nightclubs, Karaoke, Sauna Bath Parlors, etc.
PROHIBITED DISCRIMINATION
ART. 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and
conditions of employment solely on account of her sex.
The following are acts of discrimination:
(a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as
against a male employee, for work of equal value; and
(b)
Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely
on account of their sexes.
xxxxx
ART. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice:
(e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage
membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union
at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the
recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement:
Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of
the recognized collective bargaining agent;
NOTE: A homosexual cannot claim the privileges under art 135 because the law is only applied for women. There is no law in
protection against discrimination of ones gender (gay, lesbian, male, female); only discrimination between sexes (male & female)
Q: Can an employer dismiss an employee on account of pregnancy?
A: No, because pregnancy is a maternal function of women.
CRIMINAL LIABILITY
ART. 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and
conditions of employment solely on account of her sex.
xxxxx
Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant
to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this
provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for
damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No.
6725, May 12, 1989).
PROHIBITED ACTS
ART. 137. Prohibited acts.
(a) It shall be unlawful for any employer:
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To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the
purpose of preventing her from enjoying any of the benefits provided under this Code.
(2)
To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;
(3)
To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
Illustration:
I AM A WOMAN AND YOU ARE AN OWNER OF A BAR. MY COMPENSATION IS BASED ON PURCHASE OF LADYS DRINKS.
Q: Am I an employee?
A: No, maybe an independent contractor.
Q: So, what will make me an employee then?
A: Your employer should have supervision & control over the means, manner, and method of your work and as to the results thereof.
NOTE: IN THE CASE OF A MAN WORKING IN A BAR, THERE IS NO PROTECTION UNDER THIS CLASSIFICATION BECAUSE THE
PROTECTION ONLY APPLIES TO WOMEN WORKING IN NIGHTCLUBS.
ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDRENS ACT OF 2004 (RA 9262)
SEC. 43. Entitled to Leave. Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves
under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order.
Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code
and Civil Service Rules and Regulations. Likewise, an employer who shall prejudice any person for assisting a co-employee who is a victim under this
Act shall likewise be liable for discrimination.
(b)
(1)
To establish or carry on a business which has for its purpose the matching of Filipino women for marriage to foreign national s either on a mailorder basis or through personal introduction;
(2)
To advertise, publish, print or distribute or cause the advertisement, publication, printing or distribution of any brochure, flier, or any propaganda
material calculated to promote the prohibited acts in the preceding subparagraph;
(3)
To solicit, enlist or in any manner attract or induce any Filipino woman to become a member in any club or association whose objective is to match
women for marriage to foreign nationals either on a mail-order basis or through personal introduction for a fee;
(4)
To use the postal service to promote the prohibited acts in subparagraph 1 hereof.
For the manager or officer-in-charge or advertising manager of any newspaper, magazine, television or radio station, or other media, or of an advertising
agency, printing company or other similar entities, to knowingly allow, or consent to, the acts prohibited in the preceding paragraph.
Section 3. In case of violation of this Act by an association, club, partnership, corporation, or any other entity, the incumbent officers thereof who have knowingly
participated in the violation of this Act shall be held liable.
Section 4. Any person found guilty by the court to have violated any of the acts herein prohibited shall suffer an imprisonment of not less than six (6) years and one (1) day
but not more than eight (8) years, and a fine of not less than Eight thousand pesos (P8,000) but not more than Twenty thousand pesos (P20,000): Provided, That if the
offender is a foreigner, he shall be immediately deported and barred forever from entering the country after serving his sentence and payment of fine.
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Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non-material resources and shall enjoy
equal treatment in agrarian reform and land resettlement programs;
(3)
Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4)
Married women shall have rights equal to those of married men in applying for passport, secure visas and other travel documents, without need to secure the
consent of their spouses.
In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in every respect be equal to those of men under
similar circumstances.
Sec. 8. Voluntary Pag-IBIG, GSIS and SSS Coverage. Married persons who devote full time to managing the household and family affairs shall, upon the working spouse's
consent, be entitled to voluntary Pag-IBIG (Pagtutulungan Ikaw, Bangko, Industriya at Gobyerno), Government Service Insurance System (GSIS) or Social Security System
(SSS) coverage to the extent of one-half (1/2) of the salary and compensation of the working spouse. The contributions due thereon shall be deducted from the salary of
the working spouse.
The GSIS or the SSS, as the case may be, shall issue rules and regulations necessary to effectively implement the provisions of this section.
AN ACT INCREASING MATERNITY BENEFITS IN FAVOR OF WOMEN WORKERS IN THE PRIVATE SECTOR (RA 7322)
SEC. 14-A. 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:
(a)
That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth which notice shall be transmitted to the SSS in
accordance with the rules and regulations it may provide;
(b)
That the payment shall be advanced by the employer in two equal installments within thirty (30) days from the filing of the maternity leave application:
(c)
That in case of caesarian delivery, the employee shall be paid the daily maternity benefit for seventy-eight (78) days;
(d)
That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same compensable period of sixty (60)
days for the same childbirth, abortion, or miscarriage;
(e)
That the maternity benefits provided under this Section shall be paid only for the first four deliveries after March 13, 1973;
(f)
That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount of maternity benefits advanced to the employee by the
employer upon receipt of satisfactory proof of such payment and legality thereof; and
(g)
That if an employee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her employer to
the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages
equivalent to the benefits which said employee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the employee
concerned."
SEC. 2. Nothing in this Act shall be construed as to diminish existing maternity benefits under present laws and collective bargaining agreements.
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in
granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise
adversely affect said employee;
(2)
The above acts would impair the employee's rights or privileges under existing labor laws; or
(3)
The above acts would result in an intimidating, hostile, or offensive environment for the employee.
SECTION 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. It shall be the duty of the employer or the head of the workrelated, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the
resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall:
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Promulgate appropriate rules and regulations in consultation with and joint1y approved by the employees or students or trainees, through their duly
designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued
pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
(b)
Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and
employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment.
It shall also conduct the investigation of alleged cases constituting sexual harassment.
In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the
employees from the supervisory rank, and from the rank and file employees.
in the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, instructors,
professors or coaches and students or trainees, as the case may be.
The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned.
SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. The employer or head of office, educational or training institution shall be
solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of
office, educational or training institution is informed of such acts by the offended party and no immediate action is taken.
REPUBLIC ACT NO. 8042: MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995
(b)
The State affirms the fundamental equality before the law of women and men and the significant role of women in nation-building. Recognizing
the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the
formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of
migrant workers.
xxxxx
(d)
Gender-sensitivity shall mean cognizance of the inequalities and inequities prevalent in society between women and men and a commitment to
address issues with concern for the respective interests of the sexes.
Gender sensitive program and activities to assist particular needs of women migrant workers;
SEC. 32. POEA AND OWWA BOARD; ADDITIONAL MEMBERSHIPS. Notwithstanding any provision of law to the contrary, the respective Boards of the
POEA and the OWWA shall, in addition to their present composition, have three (3) members each who shall come from the women, sea-based and
land-based sectors, respectively, to be appointed by the President in the same manner as the other members.
IMPLEMENTING RULES AND REGULATIONS OF RA 9710 (Philippine Commission on Women Board Resolution No. 1, S. 2010)
SECTION 21. Special Leave Benefits for Women
A.
B.
Any female employee in the public and private sector regardless of age and civil status shall be entitled to a special leave of two (2) months with
full pay based on her gross monthly compensation subject to existing laws, rules and regulations due to surgery caused by gynecological
disorders under such terms and conditions:
1.
She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery;
2.
In the event that an extended leave is necessary, the female employee may use her earned leave credits; and
3.
The Civil Service Commission (CSC), in the case of the public sector including LGUs and other State agencies, and the DOLE, in the case of the
private sector, shall issue further guidelines and appropriate memorandum circulars within sixty (60) days from the adoption of these Rules and
Regulations to operationalize said policy, and monitor its implementation and act on any violations thereof.
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Special leave benefits for women means a female employees leave entitlement of two (2) months with full pay from her employer based on her gross
monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at
least six (6) months for the last 12 months.
ii.
Gynecological disorders refers to disorders that would require surgical procedures such as, but not limited to, dilatation and curettage and those involving
female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician.
For purposes of the Act and the Rules and Regulations of this Act, gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy.
iii.
Gross monthly compensation means the monthly basic pay plus mandatory allowances fixed by the regional wage boards.
iv.
Two (2) months means sixty (6) calendar days pursuant to Article 13 of the NCC
v.
At least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery means that the woman employee should
have been with the company for twelve (12) months, prior to surgery. An aggregate service of at least six (6) months within the said 12-month period is
sufficient to entitle her to avail of the special leave benefit (SLB).
vi.
Employment service includes absences with pay such as use of other mandated leaves, company granted leaves and maternity leave.
vii.
Competent physician means a medical doctor preferably specializing in gynecological disorders or is in the position to determine the period of recuperation of
the woman employee.
Section 2. Conditions to entitlement of special leave benefits. Any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she
has complied with the following conditions:
(a)
She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery.
(b)
She has filed an application for special leave in accordance with Section 3 hereof.
(c)
She has undergone surgery due to gynecological disorders as certified by a competent physician.
Section 3. Application for special leave. The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of
surgery, or within such period as may be provided by company rules and regulations or by collective bargaining agreement.
Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form
within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her
application using the prescribed form.
Section 4. The special leave benefit. The two (2) months special leave is the maximum period of leave with pay that a woman employee may avail of under RA 9710.
For purposes of determining the period of leave with pay that will be allowed to a woman employee, the certification of a competent physician as to the required period of
recuperation shall be controlling.
Section 5. Availment. The special leave shall be granted to the qualified employee after she has undergone surgery.
Section 6. Frequency of availment. A woman employee can avail of the special leave benefit for every instance of surgery due to gynecological disorder for a maximum
total period of two (2) months per year.
Section 7. Special leave benefit vis--vis SSS sickness benefit. The special leave benefit is different from the SSS sickness benefit. The former is granted by the employer in
accordance with RA 9170, as implemented under this Rules. It is granted to a woman employee who has undergone surgery due to gynecological disorder. The SSS sickness
benefit, on the other hand, is administered and given by the SSS in accordance with the SSS law or RA1161 as amended by RA 8282.
Section 8. Special leave benefit vis--vis existing statutory leaves. The special leave benefit cannot be taken from existing statutory leaves (i.e. 5-day Service Incentive
Leave, Leave for victims of VAWC, Parental Leave for Solo Parents). The grant of the special leave benefit under the law is in recognition of the fact that patients with
gynecological disorder needing surgery require a longer period for recovery. The benefit is considered an addition to the leave benefits granted under existing laws and
should be added on top of said statutory leave entitlements.
If the special leave benefit has already been exhausted, the company leave and other mandated leave benefits may be availed of by the woman employee.
Section 9. Special leave benefit vis--vis maternity leave benefit. Where the woman employee had undergone surgery due to gynecological disorder during her
maternity leave, she is entitled only to the difference between the SLB and maternity leave benefit.
Section 10. Crediting of existing or similar benefits. If there are existing or similar benefits under a company policy, practice or collective bargaining agreement (CBA)
providing similar or equal benefits to what is mandated by law, the same shall be considered as compliance, unless the company policy, practice or CBA provides otherwise.
In the event the company policy, practice or CBA provides lesser benefits, the company shall grant the difference.
More liberal existing or similar benefits cannot be withdrawn or reduced by reason of the mandate of RA 9710.
The term similar or equal benefits refers to leave benefits which are of the same nature and purpose as that of the SLB.
Section 11. Mode of payment. The special leave benefit is a leave privilege. The woman employee shall not report for work for the duration of the leave but she will still
receive her salary covering said period. The employer, in its discretion, may allow said employee to receive her pay for the period covered by the approved leave before or
during the surgery. The computation of her pay shall be based on her prevailing salary at the time of the surgery.
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(b)
(c)
If they experience health problems during such an assignment which are not caused by factors other than the performance of night work.
With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers
consent and shall not be used to their detriment.
Art. 156. Mandatory Facilities. Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where
such workers, where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required to provide safe
and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation
from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE.
Art. 157. Transfer. Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a
similar job for which they are fit to work.
If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to
secure employment during such period.
A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers
who are prevented from working for reasons of health.
Art. 158. Women Night Workers. Measures shall be taken to ensure that an alternative to night work is available to women workers who would
otherwise be called upon to perform such work:
(a)
Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;
(b)
For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health
of the mother or child:
(1)
During pregnancy;
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During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall
be determined by the DOLE after consulting the labor organizations and employers.
A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised causes provided for in this Code that are
not connected with pregnancy, childbirth and childcare responsibilities.
ii.
A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night
work position.
Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify
their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work.
The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an
extension of maternity leave.
The provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws.
Art. 159. Compensation. The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional
nature of night work.
Art. 160. Social Services.Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work.
Art. 161. Night Work Schedules. Before introducing work schedules requiring the services of night workers, the employer shall consult the workers
representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to
the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments
employing night workers, consultation shall take place regularly.
IMPLEMENTING RULES AND REGULATIONS OF RA 10151 (DOLE Department Order No. 119-12, Series of 2012, January 20, 2012)
Rule XV
EMPLOYMENT OF NIGHT WORKERS
Section 1. Coverage. This Rule shall apply to all persons who shall be employed or permitted or suffered to work at night, except those employed in
agriculture, stock raising, fishing, maritime transport and inland navigation.
Section 2. Definition. As used herein, night worker means any employed person whose work covers the period from 10 oclock in the evening to 6
oclock the following morning provided that the worker performs no less than seven (7) consecutive hours of work.
Section 3. Health assessment. At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on
how to reduce or avoid health problems associated with their work:
(a)
(b)
(c)
With the exception of a finding of unfitness for night work, the findings of such assessments shall be confidential and shall not be used to their
detriment, subject however to applicable company policies.
Section 4. Mandatory facilities. Mandatory facilities shall be made available for workers performing night work which include the following:
(a)
Suitable first-aid and emergency facilities as provided for under Rule 1960 (Occupational Health Services) of the Occupational Safety and
Health Standards (OSHS);
(b)
(c)
(d)
(e)
Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female works, shall
be provided except where any of the following circumstances is present:
i.
Where there is an existing company guideline, practice or policy, CBA or any similar agreement between management and
workers providing for an equivalent or superior benefit; or
ii.
Where the start or end of the night work does not fall within 12 midnight to 5 oclock in the morning; or
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Where the workplace is located in an area that is accessible twenty-four (24) hours to public transportation;
iv.
Where the number of employees does not exceed a specified number as may be provided for by the SOLE in subsequent
issuances.
Section 5. Transfer. Night workers who are certified by competent physician, as unfit to render night work, due to health reasons, shall be
transferred to a job for which they are fit to work whenever practicable. The transfer of the employee must be to a similar or equivalent position and
in good faith.
If such transfer is not practicable or the workers are unable to render night work for a continuous period of not less than six (6) months upon the
certification of a competent public health authority, these workers shall be granted the same company benefits as other workers who are unable to
work due to illness.
A night worker certified as temporarily unfit for night work for a period of less than six (6) months shall be given the same protection against dismissal
or notice of dismissal as other workers who are prevented from working for health reasons.
Section 9. Compensation. The night workers compensation shall include but not limited to working time, pay and benefits under the Labor Code, as
amended and under existing laws, such as service incentive leave, rest day, night differential pay, 13th month pay, and other benefits as provided for
by law, company policy or CBA.
Section 10. Night work schedules. The employer shall at its own initiative, consult the recognized workers representatives or union in the
establishment on the details of the night work schedules.
In establishments employing night works, consultation shall take place regularly and appropriate changes of work schedule shall be agreed upon
before it is implemented.
Section 11. Penalties. Any violation of this Rule shall be punishable with a fine of not less than Thirty Thousand Pesos (P30,000.00) nor more than
Fifty Thousand Pesos (P50,000.00) or imprisonment of not less than six (6) months or both, at the discretion of the court. If the offense is committed
by a corporation, trust, firm, partnership or association or other entity, the penalty shall be imposed upon the guilty officer or officers of such
corporation, trust, firm, partnership or association, or entity.
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Sec. 3. Definition of Terms. - For purposes of this Act, the following definitions are adopted:
a)
Age of gestation - the length of time the fetus is inside the mother's womb.
b)
Bottlefeeding - the method of feeding an infant using a bottle with artificial nipples, the contents of which can be any type of fluid.
c)
Breastfeeding - the method of feeding an infant directly from the human breast.
d)
e)
Breastmilk substitute - any food being marketed or otherwise represented as partial or total replacement of breastmilk whether or not
suitable for that purpose.
f)
g)
Expressed breastmilk - the human milk which has been extracted from the breast by hand or by breast pump. It can be fed to an infant
using a dropper, a nasogastric tube, a cup and spoon, or a bottle.
h)
Expressing milk - the act of extracting human milk from the breast by hand or by pump into a container.
i)
Formula feeding - the feeding of a newborn with infant formula usually by bottle feeding. It is also called artificial feeding.
j)
Health institutions - are hospitals, health infirmaries, health centers, lying-in centers, or puericulture centers with obstetrical and pediatric
services.
k)
Health personnel - are professionals and workers who manage and/or administer the entire operations of health institutions and/or who
are involved in providing maternal and child health services.
l)
Health workers - all persons who are engaged in health and health-related work, and all persons employed in all hospitals, sanitaria, health
infirmaries, health centers, rural health units, barangay health stations, clinics and other health-related establishments, whether
government or private, and shall include medical, allied health professional, administrative and support personnel employed regardless of
their employment status.
m)
n)
Infant formula - the breastmilk substitute formulated industrially in accordance with applicable Codex Alimentarius standards, to satisfy the
normal nutritional requirements of infants up to six (6) months of age, and adopted to their physiological characteristics.
o)
Lactation management - the general care of a mother-infant nursing couple during the mother's prenatal, immediate postpartum and
postnatal periods. It deals with educating and providing knowledge and information to pregnant and lactating mothers on the advantages
of breastfeeding, the risks associated with breastmilk substitutes and milk products not suitable as breastmilk substitutes such as, but not
limited to, condensed milk and evaporated milk, the monitoring of breastfeeding mothers by health workers and breastfeeding peer
counselors for service patients to ensure compliance with the Department of Health, World Health Organization (WHO) and the United
Nations Children's Fund (UNICEF) on the implementation of breastfeeding policies, the physiology of lactation, the establishment and
maintenance of lactation, the proper care of the breasts and nipples, and such other matters that would contribute to successful
breastfeeding.
p)
Lactation stations - private, clean, sanitary, and well-ventilated rooms or areas in the workplace or public places where nursing mothers
can wash up, breastfeed or express their milk comfortably and store this afterward.
q)
Low birth weight infant - a newborn weighing less than two thousand five hundred (2,500) grams at birth.
r)
Nursing employee - any female worker, regardless of employment status, who is breastfeeding her infant and/or young child.
s)
t)
Non-health facilities, establishment or institution - public places and working places, as defined in subparagraphs (u) and (y), respectively.
u)
Public place - enclosed or confined areas such as schools, public transportation terminals, shopping malls, and the like.
v)
Rooming-in - the practice of placing the newborn in the same room as the mother right after delivery up to discharge to facilitate motherinfant bonding and to initiate breastfeeding. The infant may either share the mother's bed or be placed in a crib beside the mother.
w)
Seriously ill mothers - are those who are: with severe infections; in shock, in severe cardiac or respiratory distress; or dying; or those with
other conditions that may be determined by the attending physician as serious.
x)
Wet-nursing - the feeding of a newborn from another mother's breast when his/her own mother cannot breastfeed.
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Workplace - work premises, whether private enterprises or government agencies, including their subdivisions, instrumentalities and
government-owned and -controlled corporations.
z)
Young child - a child from the age of twelve (12) months and one (1) day up to thirty-six (36) months.
Sec. 4. Applicability. - The provisions in this Chapter shall apply to all private enterprises as well as government agencies, including their subdivisions
and instrumentalities, and government-owned and -controlled corporations.
Upon application to, and determination by, the Secretary of the Department of Labor and Employment for the private sector, and the Chairperson of
the Civil Service Commission for the public sector, all health and non-health facilities, establishments and institutions may be exempted for a
renewable period of two (2) years from Section 6 of this Act where the establishment of lactation stations is not feasible or necessary due to the
peculiar circumstances of the workplace or public place taking into consideration, among others, number of women employees, physical size of the
establishment, and the average number of women who visit.
All health and non-health facilities, establishments or institutions which are exempted in complying with the provisions of this Act but nevertheless
opted to comply are entitled to the benefits herein stated: Provided, That they give their employees the privilege of using the same.
Sec. 10. Provision of Facilities for Breastmilk Collection and Storage for Health Institutions. - The health institution adopting rooming-in and
breastfeeding shall provide equipment, facilities, and supplies for breastmilk collection, storage and utilization, the standards of which shall be defined
by the Department of Health. Health institutions are likewise encouraged to set up milk banks for storage of breastmilk donated by mothers and
which have undergone pasteurization. The stored breastmilk will primarily be given to children in the neonatal intensive care unit whose own mothers
are seriously ill.
Sec. 11. Establishment of Lactation Stations. - It is hereby mandated that all health and non-health facilities, establishments or institutions shall
establish lactation stations. The lactation stations shall be adequately provided with the necessary equipment and facilities, such as: lavatory for handwashing, unless there is an easily-accessible lavatory nearby; refrigeration or appropriate cooling facilities for storing expressed breastmilk; electrical
outlets for breast pumps; a small table; comfortable seats; and other items, the standards of which shall be defined by the Department of Health. The
lactation station shall not be located in the toilet.
In addition, all health and non-health facilities, establishments or institutions shall take strict measures to prevent any direct or indirect form of
promotion, marketing, and/or sales of infant formula and/or breastmilk substitutes within the lactation stations, or in any event or circumstances
which may be conducive to the same.
Apart from the said minimum requirements, all health and non-health facilities, establishments or institutions may provide other suitable facilities or
services within the lactation station, all of which, upon due substantiation, shall be considered eligible for purposes of Section 14 of this Act.
Sec. 18. Department of Health Certification. - Any health and non-health facility, establishment or institution satisfying the requirements of Sections 6
and 7 herein relative to a proper lactation station may apply with the local Department of Health office for a 'working mother-baby friendly'
certification. The Department of Health shall promulgate guidelines to determine eligibility for such certification, which shall include an annual
Department of Health inspection to confirm the continued compliance with its standards.
The Department of Health shall maintain a list of 'mother-baby-friendly' establishments, which it shall make available to the public.
Sec. 19. Incentives. - The expenses incurred by a private health and non-health facility, establishment or institution, in complying with the provisions
of this Act, shall be deductible expenses for income tax purposes up to twice the actual amount incurred: Provided, That the deduction shall apply for
the taxable period when the expenses were incurred: Provided, further, That all health and non-health facilities, establishments and institutions shall
comply with the provisions of this Act within six (6) months after its approval: Provided, finally, That such facilities, establishments or institutions shall
secure a "Working Mother-Baby-Friendly Certificate" from the Department of Health to be filed with the Bureau of Internal Revenue, before they can
avail of the incentive.
Government facilities, establishments or institutions shall receive an additional appropriation equivalent to the savings they may derive as a result of
complying with the provisions of this Act. The additional appropriation shall be included in their budget for the next fiscal year.
Sec. 20. Implementing Agency. - The Department of Health shall be principally responsible for the implementation and enforcement of the provisions
of this Act.
Sec. 21. Sanctions. - Any private non-health facility, establishment and institution which unjustifiably refuses or fails to comply with Sections 6 and 7 of
this Act shall be imposed a fine of not less than Fifty thousand pesos (Php50,000.00) but not more than Two hundred thousand pesos (Php200,000.00)
on the first offense.
On the second offense, a fine of not less than Two hundred thousand pesos (Php200,000.00) but not more than Five hundred thousand pesos
(Php500,000.00).
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EMPLOYMENT OF CHILDREN
LABOR CODE PROVISIONS
ART. 139. Minimum employable age. (a) No child below fifteen (15) years of age shall be employed, except when he works directly under the
sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.
(b)
Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as
determined by the Secretary of Labor and Employment in appropriate regulations.
(c)
The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is
hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.
ART. 140. Prohibition against child discrimination. No employer shall discriminate against any person in respect to terms and conditions of
employment on account of his age.
SPECIAL LAWS
REPUBLIC ACT NO. 9231: THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING
STRONGER PROTECTION FOR THE WORKING CHILD
Sec. 12. Employment of Children. Children below fifteen (15) years of age shall not be employed except:
3)
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of
his/her family are employed: provided, however, that his/her employment neither endangers his/her life, safety, health,
and morals, nor impairs his/her normal development: provided, further, that the parent or legal guardian shall provide the
said child with the prescribed primary and/or secondary education; or
4)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio,
television or other forms of media is essential: provided, that the employment contract is concluded by the child's parents
or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of
Labor and Employment: provided, further, that the following requirements in all instances are strictly complied with:
(a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into account
the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such
child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.
For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
Sec. 12-A. Hours of Work of a Working Child. Under the exceptions provided in Sec. 12 of this Act, as amended:
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A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: provided,
that the work shall not be more than four (4) hours at any given day;
(5)
A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day,
and in no case beyond forty (40) hours a week;
(6)
No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in
the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work
between ten o'clock in the evening and six o'clock in the morning of the following day.
Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income. The wages, salaries, earnings and other
income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education
or skills acquisition and secondarily to the collective needs of the family: provided, that not more than twenty percent (20%) of
the child's income may be used for the collective needs of the family.
The income of the working child and/or the property acquired through the work of the child shall be administered by both
parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents
are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income. The parent or legal guardian of a working child below
eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the earnings of the child whose wages and
salaries from work and other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she
shall render a semi-annual accounting of the fund to the Department of Labor and Employment, in compliance with the
provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority.
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. No child shall be engaged in the worst forms of child labor. The
phrase "worst forms of child labor" shall refer to any of the following:
(5)
All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed conflict; or
(6)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for
pornographic performances; or
(7)
The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited under existing laws; or
(8)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to
the health, safety or morals of children, such that it:
(a)
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
(b)
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful
psychologically or may prejudice morals; or
(c)
(d)
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive
power-actuated tools; or
(e)
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing,
physical strength or contortion, or which requires the manual transport of heavy loads; or
(f)
(g)
(h)
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
(i)
Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. No child shall be employed as a model in any
advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or
any form of violence or pornography.
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RULES AND REGULATIONS IMPLEMENTING RA 9231, AMENDING R.A. 7610, AS AMENDED (DO NO. 65-04,
SERIES OF 2004)
SECTION 3. Definition of Terms As used in these Rules, the term:
(a)
(b)
Child labor refers to any work or economic activity performed by a child that subjects him/her to any form of
exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
(c)
when the child is below eighteen (18) years of age, in work or economic activity that is not child
labor as defined in the immediately preceding sub-paragraph, and
ii.
when the child below fifteen (15) years of age, (i) in work where he/she is directly under the
responsibility of his/her parents or legal guardian and where only members of the childs family are
employed; or (ii)in public entertainment or information.
xxxxxx
(h)
Employer refers to any person, whether natural or juridical who, whether for valuable consideration or not,
directly or indirectly procures, uses, avails itself of, contracts out or otherwise derives benefit from the work or
services of a child in any occupation, undertaking, project or activity, whether for profit or not. It includes any
person acting in the interest of the employer.
xxxxxx
(n)
Work permit refers to the permit secured by the employer, parent or guardian from the Department for any
child below 15 years of age in any work allowed under Republic Act No. 9231.
(o)
Hours of work include (1) all time during which a child is required to be at a prescribed workplace, and (2) all
time during which a child is suffered or permitted to work. Rest periods of short duration during working hours
shall be counted as hours worked.
(p)
Workplace refers to the office, premises or worksite where a child is temporarily or habitually assigned.
Where there is no fixed or definite workplace, the term shall include the place where the child actually
performs work to render service or to take an assignment, to include households employing children.
(q)
Public entertainment or information refers to artistic, literary, and cultural performances for television show,
radio program, cinema or film, theater, commercial advertisement, public relations activities or campaigns,
print materials, internet, and other media.
(d)
Forced labor and slavery refers to the extraction of work or services from any person by means of
enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse
of authority or moral ascendancy, debt bondage or deception.
(e)
Child pornography refers to any representation of a child engaged in real or simulated explicit sexual
activities or any representation of the sexual parts of a child for primarily sexual purposes.
All forms of slavery, as defined under the Anti-trafficking in Persons Act of 2003, or practices similar to slavery such as
sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment children
for use in armed conflict.
(f)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic
performances;
(g)
The use, procuring or offering of a child for illegal or illicit activities, including the production or trafficking of dangerous
drugs or volatile substances prohibited under existing laws; or
(h)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health,
safety or morals of children, such that it:
i.
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
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Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or
may prejudice morals; or
iii.
iv.
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
v.
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical
strength or contortion, or which requires the manual transport of heavy loads; or
vi.
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements,
substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious
components and the like, or to extreme temperatures, noise levels or vibrations; or
vii.
viii.
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoa, nematodes and other parasites;
or
ix.
SECTION 6. Prohibition on the Employment of Children in Certain Advertisements No child below 18 years of age shall be
employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and
its byproducts, gambling or any form of violence or pornography.
When the child works under the sole responsibility of his/her parents or guardian, provided that only members of the
childs family are employed.
(d)
When the childs employment or participation in public entertainment or information is essential, regardless of the extent
of the childs role.
The total number of hours worked shall be in accordance with Section 15 of these Rules;
ii.
The employment does not endanger the childs life, safety, health and morals, nor impair the childs normal
development;
iii.
The child is provided with at least the mandatory elementary or secondary education; and
iv.
The employer secures a work permit for the child in accordance with Section 8-12 of these Rules.
SECTION 22. Grounds for Suspension and Cancellation of Work Permit The Regional Director shall suspend or cancel the work
permit issued to a working child under the following instances:
(f)
If there is fraud or misrepresentation in the application for work permit or any of its supporting documents;
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If the terms and conditions set forth in the childs employment contract and/or employers undertaking have been
violated;
(h)
If the employer fails to institute measures to ensure the protection, health, safety, morals, and normal development of the
child as required in Section 7 (b) ii;
(i)
If the employer fails to formulate and implement a program for the education, training and skills acquisition of the child; or
(j)
If a child has been deprived access to formal, non-formal or alternative learning systems of education.
Sec. 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:
(c)
To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext
of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt bondage;
(d)
To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for
under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying,
offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage
Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing,
physical strength, or contortion;
Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a
similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children
or descendants;
Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any
descendant of his under twelve years of age in such dangerous exhibitions;
Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of
age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2
hereof, or to any habitual vagrant or beggar.
If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in
every case be imposed in its maximum period.
In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the
case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of
their parental authority.
Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians,
curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to
accompany any habitual vagrant or beggar.
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EMPLOYMENT OF HOUSEHELPER
SALIENT FEATURES
Q: What are the three distinct features of a househelper?
1. The Employer is the head of the family;
2.
3.
Services are exclusively rendered for the personal comfort and convenience of the employer and members of his family.
COVERAGE
LABOR CODE
ART. 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation.
"Domestic or household service" shall mean service in the employers 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 employers household, including services
of family drivers.
EMPLOYMENT CONTRACT/DURATION
LABOR CODE
ART. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for
such periods as may be agreed upon by the parties.
CIVIL CODE
Art. 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year.
WAGE RATES
LABOR CODE
ART. 143. Minimum wage.
(a)
Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati,
San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Paraaque, Las Pias, Pasig, Marikina, Valenzuela, Taguig and Pateros in
Metro Manila and in highly urbanized cities;
(2)
Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and
(3)
Five hundred fifty pesos (P550.00) a month for those in other municipalities.
Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the
terms and conditions thereof.
Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System
(SSS) and be entitled to all the benefits provided thereunder.
NOTE: THIS IS EXCLUDING LODGING FOODS, & MEDICAL ATTENDANCE W/C SHALL BE PAID BY THE EMPLOYER. THESE ADDITIONAL BENEFITS
CANNOT BE DEDUCTED FROM THE HOUSEHELPERS WAGES.
ART. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the
househelpers in addition to lodging, food and medical attendance.
RA 7655
Sec. 2. Any violation of any provision of this Act shall be punished with an imprisonment of not more than three (3) months or a fine of not more than
Two thousand pesos (P2,000.00) or both, at the discretion of the court.
CIVIL CODE
Art. 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void.
Such compensation shall be in addition to the house helper's lodging, food, and medical attendance.
HOURS OF WORK
Art. 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month,
with pay.
NOTE: THE VACATION LEAVE MAY BE ENJOYED AT ANY DAY BECAUSE THERE IS NO SPECIFIC DAY PROVIDED BY LAW.
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OVERTIME
Househelpers are excluded from the coverage of the law on working conditions if they perform such services in the employers home
which are usually necessary or desirable for the maintenance or the enjoyment thereof, or minister to the personal comfort,
convenience or safety of the employer, as well as the members of the employers houshould
However, house personnel hired by a ranking company official, a foreigner, but paid for by the company itself, to maintain a staff
house provided for the official, are not the latters domestic helpers but regular employees of the company.
Since the rules require that domestic servants must perform their services in the employers home, a family cook, who is later
assigned to work as a watcher and cleaner of the employers business establishment, becomes an industrial worker entitled to
receive the wages and benefits flowing from such status.
Waiters of a hotel do not fall under the term domestic servants and persons in the personal service of another, nor under the terms
farm laborers, laborers who prefer to be paid on piece work basis, and members of the family of the employer working for him;
therefore, they do not fall within any of the exceptions and their work is within the scope of the Eight-hour Labor Law. (Azucena)
Apex Mining Co., Inc vs. NLRC
GR. No. 94951, April 22, 1991
The term househelper as used herein is synonymous to the term domestic servant and shall refer to any person, whether male or female, who renders services in and
about the employers home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal
comfort and enjoyment of the employers family.
The foregoing definition contemplates such househelper or domestic servant who is employed in the employers home to minister exclusively to the personal comfort and
enjoyment of the employers family. Such definition covers family drivers, domestic servants, laundry women, yayas, gardeners, houseboys and other similar househelps.
The definition cannot be interpreted to include househelper or laundry woman working in staffhouses of a company who attends to the needs of the companys guests and
other persons availing of said facilities. By the same token, it cannot be considered to extend to the driver, houseboy, or gardener exclusively working in the company, the
staffhouses and its premises. They may not be considered as within the meaning of a househelper or domestic servant as defined by law.
The criterion is the personal comfort and enjoyment of the family of the employer in the home of said employer. While the nature of the work of a househelper, domestic
servant or laundry woman in a home or in a company staffhouse may be similar in nature, the difference in their circumstances is that in the former instance they are
actually serving the family while in the latter case, whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar
pursuit, service is being rendered in the staffhouses or within the premises of the business of the employer. In such instances, they are employees of the company or
employer in the business concerned entitled to the privileges of a regular employee.
The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business,
as in the staff houses for its guests or even for its officers and employers, warrants the conclusion that such househelper or domestic servant is and should be considered as
a regular employee of the employer and not as a mere family househelper or domestic servant.
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Co vs. Vargas
GR. No. 195167, November 16, 2011
It is clear that petitioner [Lina B. Vargas] is not a househelper or domestic servant of private respondents [Nathaniel Bakeshop and Fernando Co]. The evidence shows
that petitioner is working within the premises of the business of private respondent Co and in relation to or in connection with such business. In the Memorandum of
Appeal filed by private respondents before the NLRC, the place of business of respondent Co and his residence is located in the same place, Brgy. Juliana, San Fernando,
Pampanga. Thus, respondent Co exercised control and supervision over petitioner's functions. Respondent Co's averment that petitioner had the simple task of cleaning
the house and cooking at times and was not involved in the business was negated by the fact that petitioner likewise takes the orders of private respondents' customers.
Even if petitioner was actually working as domestic servant in private respondent's residence, her act of taking orders, whic h was ratiocinated by the NLRC as not leading to
the conclusion that petitioner in fact took the orders, would warrant the conclusion that petitioner should be considered as a regular employee and not as a mere family
househelper or domestic servant of respondent Co.
RIGHTS OF A HOUSEHELPER
LABOR CODE
ART. 145. Assignment to non-household work. No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a
wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein.
ART. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity
for at least elementary education. The cost of education shall be part of the househelpers compensation, unless there is a stipulation to the contrary.
ART. 147. Treatment of househelpers. The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be
used upon the househelper.
ART. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters
as well as adequate food and medical attendance.
NOTE: HOUSEHELPERS HAVE THE RIGHT TO ADEQUATE FOODS, NOT JUST FOODS. THEY MUST ALSO BE TREATED IN JUST & HUMANE MANNER
WITHOUT PHYSICAL VIOLENCE.
CIVIL CODE
Art. 1690. The head of the family shall furnish, free of charge, to the house helper, suitable and sanitary quarters as well as adequate food and
medical attendance.
Art. 1691. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least
elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the contrary.
Art. 1693. The house helper's clothes shall be subject to stipulation. However, any contract for household service shall be void if thereby the house
helper cannot afford to acquire suitable clothing.
Art. 1694. The head of the family shall treat the house helper in a just and humane manner. In no case shall physical violence be used upon the house
helper.
Art. 1696. In case of death of the house helper, the head of the family shall bear the funeral expenses if the house helper has no relatives in the place
where the head of the family lives, with sufficient means therefor.
TERMINATION OF CONTRACT
LABOR CODE
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If the compensation is paid by the day, notice may be given on any day that the service shall end at the close of the following day;
(2)
If the compensation is paid by the week, notice may be given, at the latest on the first business day of the week, that the service shall
be terminated at the end of the seventh day from the beginning of the week;
(3)
If the compensation is paid by the month, notice may be given, at the latest, on the fifth day of the month, that the service shall cease
at the end of the month.
Art. 1699. Upon the extinguishment of the service relation, the house helper may demand from the head of the family a written statement on the
nature and duration of the service and the efficiency and conduct of the house helper.
2.
3.
Work which exposes children to physical, psychological or sexual abuse, such as in:
cabarets
dance halls
escort service
mining
installing and repairing of telephone, telegraph and electrical lines; cable fitters
painting buildings
window cleaning
logging
construction
quarrying
driving or operating havy equipment such as payloaders, backhoes, bulldozers, cranes, pile driving equipment, trailers, road
rollers, tractor lifting appliances scaffold winches, hoists, excavators and loading machines
operating or setting motor-driven machines such as saws, presses, and wood -working machines
stevedoring
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4.
5.
working in warehouses
working in docks
Work in unhealthy environment which may expose children to hazardous processes, to temperatures, noise levels or vibrations damaging
to their health, to toxic, corrosive, poisonous, noxious, explosive, flammable and combustible substances or composites, to harmful
biological agents, or to other dangerous chemicals including pharmaceuticals, such as in:
tanning
pesticide spraying
garbage collecting
handling of animal manure in poultry houses or as fertilizers (compost and other decaying matter included) in farming
welding
working in discotheques
SECTION 4. Applicability of this Guideline to Domestic or Household Service. Persons between 15 and 18 years of age may be allowed to engage in
domestic or household service, subject in all cases to the limitations prescribed in Nos. 1 to 5 of Section 3 herein.
REVIEW QUESTIONS
Q: DO HOUSEHELPERS HAVE THE RIGHT TO EDUCATION?
A: NO, THEY ONLY HAVE THE RIGHT TO THE OPPORTUNITY TO ELEMENTARY EDUCATION TO THOSE BELOW 18 Y/O.
Q: IF A HOUSEHELPER REACHES THE AGE OF 62 AND HE IS EARNING 1OOO A MONTH, IS HIS EMPLOYER REQUIRED TO REPORT TO THE SSS FOR
COVERAGE?
A: NO. HE WILL NOT BE COVERED WITH SSS BECAUSE SSS COVERAGE APPLIES ONLY TO THOSE BELOW 60 Y/O.
Q: IF A HOUSEHELPER REACHES THE RETIREMENT AGE, IS HE ENTITLED TO RETIREMENT BENEFITS?
A: YES, BECAUSE THEY ARE NOT EXCLUDED IN ART 82.
IN CASE OF DEATH OF THE HOUSHELPER, WHO BEARS THE EXPENSES FOR THE FUNERAL?
A: THE EMPLOYER BEARS THE EXPENSES OF THE FUNERAL IF THE HOUSEHELPER HAS NO RELATIVES WITHIN THE PLACE. HOWEVER, IF THERE ARE
RELATIVES, THEY WILL BEAR THE EXPENSES OF FUNERAL.
Q: IF THE HOUSEHELPER RESIGNS, DOES SHE HAVE THE RIGHT TO CERTIFICATE OF EMPLOYMENT?
A: YES.
EMPLOYMENT OF HOMEWORKERS
Q: ARE HOUSEHELPERS THE SAME AS HOMEWORKERS?
A: NO. A HOUSEHELPER WORKS AT ERS HOME WHILE HOMEWORKERS WORK AT EES HOME; HOMEWORKER IS ENGAGED IN
INDUSTRIAL WORK, THE MATERIALS ARE GIVEN BY THE ER WHILE HOUSEHELPER RENDERS SERVICES PERSONALLY IN THE HOUSE
OF THE ER.
LABOR CODE
Art. 153. Regulation of industrial homeworkers. The employment of industrial homeworkers and field personnel shall be regulated by the government
through the appropriate regulations issued by the Secretary of Labor and Employment to ensure the general welfare and protection of homeworkers
and field personnel and the industries employing them.
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Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be
returned or to be disposed of or distributed in accordance with his directions; or
(2)
Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or
fabrication, either by himself or through some other person.
Art. 98. Exemption of Minimum Wage. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective
homes in needle work or in any cottage industry duly registered in accordance with law.
Industrial Homewok is a system of production under which work or an employer or contractor is carried out by a homeworker at his/her
home. Materials may or may not be furnished by the employer or contractor.
It differs from regular factory production principally in that, it is a decentralization form of production where there is ordinary very little
supervision or regulation of methods of work.
(b)
(c)
Home means any room, house, apartment or other premises used regularly, in whole or in part, as dwelling place, except those situated
within the premises or compound of an employer, contractor or subcontractor and the work performed therein is under the active or
personal supervision by or for the latter.
(d)
Employer means any natural or artificial person who, for his own account or benefit, or on behalf of any person residing outside the
Philippines, directly or indirectly, or through any employee, agent, contractor, subcontractor or any other person:
(1)
Delivers or causes to be delivered any goods, articles, or materials to be processed or fabricated in or about a home and
thereafter to be returned or to be disposed of or distributed in accordance with his discretion; or
(2)
Sells any goods, articles or materials for the purpose of having such goods or articles processed in or about a home and then
repurchases them himself or through another after such processing.
xxxxxxx
(f)
Processing means manufacturing, fabricating, finishing, repairing, altering, packing, wrapping or handling in any way connected with the
production or preparation of an article or material.
SECTION 3. Self-Organization. Homeworkers shall have the right to form, join or assist organizations of their own choosing, in accordance with law.
SECTION 6. Payment for homework. Immediately upon receipt of the finished goods or articles, the employer shall pay the homeworker or the
contractor or subcontractor, as the case may be, for the work performed less corresponding homeworkers share of SSS, MEDICARE and ECC premium
contributions which shall be remitted by the contractor/subcontractor or employer to the SSS with the employers share. However, where payment is
made to a contractor or subcontractor, the homeworker shall likewise be paid immediately after the goods or articles have been collected from the
workers.
SECTION 7. Standard rates. At the initiative of the Department or upon petition of any interested party, the Secretary of Labor and Employment or
his authorized representative shall establish the standard output rate or standard minimum rate in appropriate orders for the particular work or
processing to be performed by the homeworkers.
The standard output rates or piece rates shall be determined through any of the following procedures:
(a)
(b)
An individual/collective agreement between the employer and its workers as approved by the Secretary or his authorized representative;
(c)
Consultation with representatives of employers and workers organizations in a tripartite conference called by the Secretary.
The time and motion studies shall be undertaken by the Regional Office having jurisdiction over the location of the premis/s used regularly by the
homeworker/s. However, where the job operation or activity is being likewise performed by regular factory workers at the factory or premises if the
employer, the time and motion studies shall be conducted by the Regional Office having jurisdiction over the location of the main undertaking or
business of the employer. Piece rates established through time and motion studies conducted at the factory or main undertaking of the employer shall
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The homeworker concerned is clearly shown to be responsible for the loss or damage;
(b)
The homeworker is given reasonable opportunity to show cause why deductions should not be made;
(c)
The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage; and
(d)
The deduction is made at such rate that the amount deducted does not exceed 20% of the homeworkers earnings in a week.
The employer may require the homeworker to redo the work which has been improperly executed without having to pay the stipulated
rate again.
(b)
An employer, contractor, or subcontractor need not pay the homeworker for any work which has been done on goods and articles which
have been returned for reasons attributable to the fault of the homeworker.
SECTION 10. Enforcement Power. The Regional Director shall have the power to order and administer compliance with the provisions of the law and
regulations affecting the terms and conditions of employment of homeworkers and shall have the jurisdiction in cases involving violations of this Rule.
Complaints for violations of labor standards and the terms and conditions of employment involving money claims of homeworkers in an amount of
not more than P5,000 per homeworker shall be heard and decided by the Regional Director. He shall have the power to order and administer; after
due notice and hearing, compliance with the provisions of this Rule.
In cases where the findings of the Regional Office show that the money claims due a homeworker exceed P5,000, the same shall be endorsed to the
appropriate Regional Arbitration Branch of the National Labor Relations Commission.
Non-compliance with the order issued by the Regional Director can be the subject of prosecution in accordance with the penal provisions of the Labor
Code.
In cases of disagreement between the homeworker and the employer, contractor, or subcontractor on a matter falling under this Rule, either party
may refer the case to the Regional Office having jurisdiction over the workplace of the homeworker. The Regional Office shall decide the case within
ten (10) working days from receipt of the case. Its decision shall be final and executor.
SECTION 11. Duties of employer, contractor and subcontractor. Whenever an employer shall contract with another for the performance of the
employers work, it shall be the duty of such employer to provide in such contract that the employees or homeworkers of the contractor and the
latters subcontractor shall be paid in accordance with the provisions of this Rule. In the event that such contractor or subcontractor fails to pay the
wages or earnings of his employees or homeworkers as specified in this Rule, such employer shall be jointly and severally liable with the contractor or
subcontractor to the workers of the latter, to the extent that such work is performed under such contract, in the same manner as if the employees or
homeworkers were directly engaged by the employer. The employer, contractor or subcontractor shall assist the homeworkers in the maintenance of
basic safe and healthful working conditions at the homeworkers place of work.
SECTION 13. Prohibitions for homework. No homework shall be performed on the following:
(1)
(2)
(3)
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After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of
the Secretary of Labor.
(b)
Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations
shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code.
In addition, the alien worker shall be subject to deportation after service of his sentence.
ART. 42. Submission of list. Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such
nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of
employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit.
ART. 269. Prohibition against aliens; exceptions. All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging
directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized
international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and
Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective
bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by
Section 29, Republic Act No. 6715, March 21, 1989).
Article 270. Regulation of foreign assistance. No foreign individual, organization or entity may give any donations, grants or other forms of
assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit
unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the
Secretary of Labor.
"Trade union activities" shall mean:
organization, formation and administration of labor organization;
negotiation and administration of collective bargaining agreements;
all forms of concerted union action;
organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes;
any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and
other activities or actions analogous to the foregoing.
This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any
employer or employers organization to support any activity or activities affecting trade unions.
The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other
forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or
activities proposed to be supported, and their duration.
EMPLOYMENT OF ALIENS
Article 40 requires only non-resident aliens to secure employment permit. Resident aliens are not so required. For immigrants and
resident aliens what is required is an Alien Employment Registration Certificate (AERC).
Foreigners may not be employed in certain nationalized business. The Anti-Dummy Law prohibits employment of aliens in entities
that own or control a right, franchise, privilege, property or business whose exercise or enjoyment is reserved by law only to Filipinos
or to corporations or associations whose capital should be at least 60% Filipino-owned. Authority to operate a public utility or to
develop, exploit, and utilize natural resources can be granted only to Philippine citizens or to corporations or associations at least 60%
of the capital of which is owned by such citizens. The same 60% requirement applies to financing companies. Under the Philippine
Constitution, Article XVI, Section 11, mass media enterprises can be owned or managed only by Filipinos or by corporations or
associations wholly owned or managed by them.
The Secretary of Justice has rendered an Opinion, however, that aliens may be employed in entities engaged in nationalized activities:
(a) where the Secretary of Justice specifically authorizes the employment of foreign technical personnel; or
(b) where the aliens are elected members of the board of directors or governing body of corporations or associations in
proportion to their allowable participation in the capital of such entities.
Enterprises registered under the Omnibus Investments Code (EO No. 226) may, for a limited period, employ foreign nationals in
technical, supervisory, or advisory positions. (Azucena)
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All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the
Philippine government;
b.
Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses
desiring to work in the Philippines;
c.
Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in
the corporation;
d.
e.
Owners and representatives of foreign principals whose companies are accredited by the Philippine Overseas Employment
Administration (POEA), who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants
for employment abroad;
f.
Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as
visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign
universities or colleges; or between the Philippine government and foreign government; provided that the exemption is on a
reciprocal basis; and
g.
All applications for AEP shall be filed and processed at the DOLE Regional Office or Field Office having jurisdiction over the intended
place of work.
Only applications with the following complete documentary requirements shall be received and acted upon by the Regional Office:
1.
2.
Photocopy of passport with visa, or Certificate of Recognition for Refugees or Stateless Persons
3.
4.
Photocopy of Mayors Permit to operate business or in case of locators in economic zones, Certification from the PEZA or the
Ecozone Authority that the company is located and operating within the ecozone.
b.
In the case of foreign nationals to be assigned in related companies, they may file their application with the Regional Office having
jurisdiction over any of the applicants intended places of work.
c.
Additional position of the foreign national in the same company or subsequent assignment in related companies during the validity or
renewal of the AEP will be subject for publication requirement and payment of publication fee. A change of position or employer shall
require an application for new AEP.
Section 4. Fees. Upon filing of application, the applicant shall pay a fee of P8000 for an AEP with a validity of one year. In case the period of
employment is more than 1 year, an additional P3000 shall be charged for every additional year or fraction thereof. In case of renewal, the applicant
shall pay a fee of P3000 for each year of validity or fraction thereof.
A courier free of P200 shall be charged to the foreign national upon the implementation of the AEP online application system.
Any change of information or entries in the AEP shall be subject to payment of P750 for AEP replacement. In case of loss of AEP, request for
replacement shall be supported by an Affidavit of Loss. All fees covered by official receipt issued by the Regional Office are non-refundable.
Section 5. Publication. The Regional Office shall publish all applications for new AEP, additional position in the same company or subsequent
assignment in related companies within two working days upon receipt of application. Any objection or information against the employment of the
foreign national may be filed with the Regional Office within thirty (30) days after publication.
Section 6. Processing period. Applications for new AEP shall be processed and an AEP shall be issued within twenty-four (24) hours after publication
and payment of required fees and fines, if there is nay. Applications for renewal of AEP shall be processed within twenty-four (24) hours after receipt.
Section 8. Effect of denial/cancellation or recovation of AEP. A foreign national whose AEP has been denied/cancelled/revoked shall not be allowed
to reapply in any of the DOLE Regional Offices, unless said foreign national has provided proof that the ground for denial/cancellation/revocation has
been corrected.
Section 9. Renewal of AEP An application for renewal of AEP shall be filed before its expiration.
In case of corporate officers, whose election or appointment takes place before expiration of AEP, the application shall be filed not later than fifteen
(15) working days after election or appointment or before expiration of the AEP.
In case the election or appointment will take place after the expiration of the AEP, the application for renewal shall be filed before the expiration of
the AEP, and shall be renewed for one year. In case the foreign national is not re-elected or re-appointed, the AEP shall be automatically revoked.
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b.
c.
the foreign national has been convicted of a criminal offense or a fugitive from justice; or
d.
availability of a Filipino who is competent, able and willing to do the job intended for the foreign national
Denial of application for AEP shall cause the forfeiture of the fees paid by the applicant.
Section 11. Validity of AEP. The AEP shall be valid for the position and the company for which it was issued for a period of one year, unless the
employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed five years.
Section 12. Suspension of AEP. The AEP may be suspended by the issuing Regional Director, based on any of the following grounds, and after due
process:
a.
The continued stay of the foreign national may result in damage to the interest of the industry or the country;
b.
The employment of the foreign national is suspended by the employer or by order of the Court.
Petitions for suspension of AEP issued shall be resolved within thirty (30) days from receipt thereof.
Section 13. Cancellation/revocation of AEP. The Regional Director may, motu proprio or upon petition, cancel or revoke an AEP after due process,
based on any of the following grounds:
a.
Non-compliance with any of the requirements or conditions for which the AEP was issued;
b.
c.
d.
e.
The foreign national has been convicted of a criminal offense or a fugitive from justice; or
f.
Section 14. Appeal. Any aggrieved party may file an appeal with the Secretary within ten (10) days after receipt of the copy of
denial/suspension/cancellation/revocation order.
The decision of the Secretary shall be final and executor unless a motion for reconsideration is filed within ten (10) days after receipt of the decision of
the Secretary. No second motion for reconsideration shall be entertained.
Section 15. Fines for working without AEP. The Regional Director shall be impose a fine of Ten Thousand Pesos (P10,000.00) for every year or a
fraction thereof on foreign nationals found working without an AEP or with an expired AEP.
Newly hired, elected or appointed officers may file application for new AEP without penalty within fifteen (15) working days after signing of contract,
election or appointment, or before the start of actual term of office.
RULES GOVERNING THE ISSUANCE OF SPECIAL WORK PERMIT (SWP); PROVISIONAL PERMIT TO WORK (PPW), and PRE-ARRANGED
EMPLOYMENT VISA UNDER SECTION 9(G)
Section 1. Coverage. The following provisions and rules on SWP shall apply to non-resident aliens who will be employed in the Philippines for less
than six (6) months and who are not performing artists or journalists. The provisions and rules on PPW shall apply to non-resident aliens who intend to
work in the country for a period of more than six (6) months but not more than one (1)year. The provisions and rules on the approval and issuance of
9(g) visa shall apply to all non-resident aliens who intend to work as pre-arranged employees in the country and comply with the requisites stated in
Section 20(a) of the Philippine Immigration Act, as amended.
Section 2. Validity of the Special Work Permit. The maximum period of validity for a SWP is six (6) months. Qualified applicants shall be granted SWP
for an initial validity of three (3)months. Those who intend to work for a longer period shall be given a final extension of another (3) months.
Section 3. Who may avail of the Provisional Permit to Work; Validity. Holders of SWP who intend to work in the country for a longer period than six
(6) months shall apply for a PPW with the Bureau of Immigration. Non-holders of SWP who intend to work in the country for a period of more than six
months shall likewise apply for a PPW. Applicants for a 9(g) working visa who commence employment while their applications are still pending must
secure a PPW.
A PPW shall be valid for a maximum period of one (1) year.
Section 4. Alien Employment Permit not a requirement for Provisional Permit to Work. An AEP shall not be required for the issuance of a PPW. In lieu
thereof, proof of application for an AEP shall suffice.
Section 5. Requirements for the 9(g) working visa. A working visa application under Section 9(g) of the Philippine Immigration Act shall be accepted
upon submission of the minimum requirements, as follows:
a)
duly accomplished and notarized general application form showing that applicant has no derogatory record with the Bureau;
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petition or application letter signed by the authorized representative of the petitioning company or entity;
c)
d)
AEP together with the documents submitted to DOLE for the issuance thereof. All applications shall be subject to the evaluation and
verification of the assigned Legal Officer. Additional documents may be required of the applicant if the need therefor arises.
Section 6. Validity of the 9(g) working visa. An approved application for a 9(g) working visa shall be Valid for a period of three (3) years or for a
period co-terminus with the AEP issued by the DOLE, whichever is shorter.
The foreigner shall actually, directly or exclusively engage in a viable and sustainablecommercial investment/enterprise in the
Philippines, exercises/performs management acts or has the authority to hire, promote and dismiss employees;
b.
c.
d.
The foreigners commercial investment/enterprise must provide actual employment to at least ten (10) Filipinos in accordance with
Philippine labor laws and other applicable special laws.
The above mentioned requirements must be continually satisfied by the foreigner for him/her to continue to be a holder of the SVEG.
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Substantial Investment is an amount of investment which is sufficient to maintain at least ten (10) full-time Filipino workers or
employees on a regular basis, taking into consideration the amount of wages or salary and duration of work as reflected in their
employment contacts.
b.
Viable and sustainable investment is any business activity, investment, enterprise or industry in the Philippines, not prohibited to
foreign nationals by any law, rules and regulations, and which provides employment to at least (10) full-time Filipino workers or
employees on a regular basis.
c.
Household workers are those who render services in the foreign nationals 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
household of the foreign national.
d.
Rehabilitation of a business, enterprise or industry is any act by a foreign national of infusing substantial investment that enabled a
business, enterprise or industry in financial distress to continue its business activities.
Section 4. Nature of Employment of Filipino Workers. Under these Rules, the employment of at least ten (10) Filipino workers shall be for
managerial, executive, professional, technical, skilled or unskilled positions in a business activity, investment, enterprise or industry in the Philippines,
excluding personal employees of the foreign national such as household workers and the like.
OTHER SPECIAL LAWS: SPECIAL ECONOMIC ZONE ACT OF 1995 (RA 7916)
RA 7916
SECTION 40. Percentage of Foreign Nationals. - Employment of foreign nationals hired by ECOZONE enterprises in a supervisory, technical or advisory
capacity shall not exceed five percent (5%) of its workforce without the express authorization of the Secretary of Labor and Employment.
Name of the foreign national and his field of specialization as prescribed in the program;
b.
c.
Number
of
hours
of
actual
training
for
each
understudy
and
specific
subject(s)
d. Reasons why Filipino understudies cannot yet take over the work of the foreign national, if such be the case.
covered;
and
SECTION 4. Spouse and Unmarried Minor Children The spouse and unmarried children under twenty one (21) years of age of the foreign nationals
employed under the provisions of the Act shall be permitted to enter and reside in the Philippines during the period of employment of such foreign
national in the ECOZONE Enterprise.
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Exception
However, for the purposes of torts and damages employer-employee relationship exists.
Page 206
Work Appreciation Program (WAP) The WAP shall develop the values of work appreciation and ethics among college and high school
students by providing them with apprenticeship and actual work opportunities in private establishments. The Program shall involve
various private sector groups and employers federations and shall be coordinated by the Department of Labor and Employment
(DOLE);
b.
Special Program for Employment of Students (SPES). The objective of SPES is to develop the intellectual capacities of children of poor
families and harness their potentials for the country's development. Specifically, the Program aims to help poor but deserving
students pursue their education by providing income or augment their income by encouraging their employment during summer
and/or Christmas vacations;
xxxxxx
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2008 MANUAL OF REGULATIONS FOR PRIVATE HIGHER EDUCATION (CHED Memorandum Circular No. 40, Series of 2008)
Academic personnel includes all school personnel who are formally engaged in actual teaching service or in research assignments,
either in full time or part time basis.
Academic support personnel are those who perform certain prescribed academic functions directly supportive of teaching such as
registrars, librarians, guidance counselors, researchers and other persons performing similar functions including institution officials
responsible for academic matters and affairs.
Non-academic personnel means the rank-and-file employees of the institution engaged in administrative functions and
maintenance of higher education institution.
NOTE: In any case, Academic personnel are governed by the Manual of Regulations while Non-academic personnel are governed by
the Labor Code.
Who possesses at least the minimum academic qualifications prescribed under this Manual for all academic personnel;
2)
Who is paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the
Commission and the institution;
3)
Who devotes not less than eight (8) hours of work a day to the school;
4)
Who have no other remunerative occupation elsewhere requiring regular hours of work, except when permitted by the higher
education institution; and
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All faculty or academic personnel who do not meet the foregoing qualifications are considered part-time.
Except when permitted by the higher education institution, all faculty or academic personnel who are at the same time holding positions in the
government, whether appointive or elective, shall also be considered part-time.
Employment
Senior citizens who have the capacity and desire to work, or be re-employed, shall be provided information and matching services to enable
them to be productive members of society. Terms of employment shall conform with the provisions of the Labor Code, as amended, and other
laws, rules and regulations.
Private entities that will employ senior citizens as employees, upon the effectivity of this Act, shall be entitled to an additional deduction from
their gross income, equivalent to fifteen percent (15%) of the total amount paid as salaries and wages to senior citizens, subject to the provision
of Section 34 of the NIRC, as amended: Provided, however, That such employment shall continue for a period of at least six (6) months:
Provided, further, That the annual income of the senior citizen does not exceed the latest poverty threshold as determined by the National
Statistical Coordination Board (NSCB) of the National Economic and Development Authority (NEDA) for that year.
The Department of Labor and Employment (DOLE), in coordination with other government agencies such as, but not limited to, the Technology
and Livelihood Resource Center (TLRC) and the Department of Trade and Industry (DTI), shall assess, design and implement training programs
that will provide skills and welfare or livelihood support for senior citizens.
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EMPLOYMENT OF DRIVERS AND CONDUCTORS IN THE PUBLIC UTILITY BUS TRANSPORT INDUSTRY
DOLE DO No. 118-12, Series of 2012
Definition of Terms
Public utility bus driver refers to a professional-licensed driver hired or paid to drive a public utility bus.
Public utility bus conductor refers to a person hired or paid to serve as conductor in a public utility bus.
Public utility bus operator refers to a person issued a Certificate of Public Convenience to operate a public utility bus by the Land
Transportation Franchising and Regulatory Board.
Fixed and Performance-based Compensation Scheme refers to compensation scheme for bus drivers and conductors wherein the
fixed component shall be based on an amount mutually agreed upon by the owner/operator and the driver/conductor, which shall in
no case be lower than the applicable minimum wage. The performance based component shall be based on safety performance,
business performance and other related parameters.
RULE II
TERMS AND CONDITIONS OF EMPLOYMENT
SECTION 1. Employment Agreement for Drivers and Conductors. There shall be an agreement in writing between the public utility bus
owner/operator and the public utility bus driver and/or conductor which shall include the following terms:
a)
Driver or conductors full name, date of birth or age, address, civil status, and SSS ID no.;
b)
c)
Place where and date when the employment agreement is entered into;
d)
Amount of the drivers or conductors fixed wage and formula used for calculating the performance based compensation in accordance
with Rule III;
e)
Hours of work;
f)
Wages and wage-related benefits such as overtime pay, holiday pay, premium pay, 13th month pay and leaves;
g)
h)
i)
The public utility bus owner/operator shall provide the public utility bus driver/conductor the signed and notarized original copy of the agreement.
SECTION 3. Hours of Work and Hours of Rest. The normal hours of work of a driver and conductor shall not exceed eight (8) hours a day.
If the driver/conductor is required to work overtime, the maximum hours of work shall not exceed twelve (12) hours in any 24-hour period, subject to
the overriding safety and operational conditions of the public utility bus.
Drivers and conductors shall be entitled to rest periods of at least one (1) hour, exclusive of meal breaks, within a 12-hour shift.
RULE III
COMPENSATION
SECTION 1. Fixed and Performance Based Compensation Scheme. Bus owners and/or operators shall adopt a mutually-agreed upon part-fixed, partperformance based compensation scheme for their bus drivers and conductors.
SECTION 2. Method of Determining Compensation. Bus owners and/or operators, in consultation with their drivers and conductors shall determine
the following:
a)
The fixed component shall be based on an amount mutually agreed upon by the owner/operator and the driver/conductor, which shall
take into account minimum ridership requirement and in no case be lower than the applicable minimum wage for work during normal
hours/days. They shall also be entitled to wage related benefits such as overtime pay, premium pay, and holiday pay, among others.
b)
The performance-based component shall be based on safety performance and business performance such as ridership,
revenues/profitability, and other related parameters.
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"Work place" means the office, premises or work site where the workers are habitually employed and shall include the office or place
where the workers who have no fixed or definite work site regularly report for assignment in the course of their employment.
(c)
"First-aider" means any person trained and duly certified as qualified to administer first aid by the Philippine National Red Cross or by any
other organization accredited by the former.
Nature of Undertaking
1.) From 10 to 50
2.) More than 50 but
not more than 200
Requirement
* Hazardous
- a graduate first-aider who may be one of the workers in the workplace and who has immediate
access to the first-aid medicines in the workplace (Rule 1, Sec. 4(a), Bk IV, IRR)
- Full-time registered nurse
* Non-hazardous
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c. An emergency clinic
a. Full-time physician and full-time dentist
*Hazardous workplace = Full-time physician and full-time dentist should stay in the premises
for at least eight (8) hours.
*Non-hazardous workplace = physician and dentist may be engaged on retained basis
subject to regulations by the SOLE. (Art. 157, LC)
= employer may engage the services of a part-time physician and a part-time
dentist who shall have the same responsibilities as those provided under number 3 (b)
above. (Sec. 4 (d), Rule I, Bk IV, IRR)
*Additional requirements under the Implementing Rules for Workplaces with more than one
workshift a day:
- The physician and dentist shall be at the workplace during the workshift which has
the biggest number of workers and shall be subject to call at anytime during the other workshifts
to attend to emergency cases.
- A full-time first-aider must be provided for each workshift. (Sec. 4, (d) & (e), Bk IV,
Rule 1, IRR)
b. Full-time registered nurse
c. Dental Clinic
d. Infirmary or emergency hospital with one bed capacity for every 100 employees.Exceptions (IRR,
Sec. 5, Bk IV, Rule 1.):
In Urban Area: where there is a hospital or dental clinic which is not more than five (5)
kilometers away from the workplace.
In Rural Area: where a hospital or dental clinic can be reached by motor vehicle in twenty-five
(25) minutes.
In both cases, the employer should have readily available facilities for transporting a worker to
the hospital or clinic in case of emergency. Provided, further, that the employer shall enter into a
written contract with the hospital or dental clinic for the use thereof in the treatment of workers in
case of emergency
DISSECTED:
In Urban Area: where there is a hospital or dental clinic which is not more than five (5) kilometers away from the workplace.
In Rural Area: where a hospital or dental clinic can be reached by motor vehicle in twenty-five (25) minutes.
In both cases, the employer should have readily available facilities for transporting a worker to the hospital or clinic in case of
emergency.
ASSISTANCE OF EMPLOYER
ART 161. Assistance of employer. It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate
medical and dental attendance and treatment to an injured or sick employee in case of emergency.
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Workmens Compensation is a general and comprehensive term applied to those laws providing for compensation for loss
resulting from the injury, disablement, or death of workmen through industrial accident, casualty, or disease. (Azucena)
Compensation, under the workmens compensation statute, means the money relief afforded according to the scale established
under the statute, as differentiated from compensatory damages recoverable in an action at law for breach of contract or for a tort.
(Azucena)
ECC RULES, Rule I. COVERAGE
Sec. 1. Nature. Coverage shall be compulsory.
Sec. 2. Scope
(a) Every employer shall be covered.
(b) Every employee not over 60 years of age shall be covered.
(c) An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both Systems.
ART. 167 (k), (LC). Injury means any harmful change in the human organism from any accident arising out of and in the course of
employment.
Under Bk IV, Rule III, Sec. 1 (a), Implementing Rules
(a) For the injury and the resulting disability or death to be compensable, the injury must be the result of an employment
accident satisfying all of the following grounds:
1.
The employee must have been injured at the place where his work requires him to be;
2.
The employee must have been performing his official functions; and
3.
If the injury is sustained elsewhere, the employee must have been executing an order for the employer.
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Intoxication or Drunkenness under this Article consists in being under the influence of intoxicating liquor to the extent that one is
not entirely himself or so that his judgment is impaired and his act, words, or conduct is visibly impaired.
Self-inflicted Injuries must be intentionally self-inflicted, that is, there must be a deliberate intent on the part of the employee, not
a failure on his part to realize the probable consequences to himself of his foolish act.
Notorious Negligence is something more than simple contributory negligence. It signifies a deliberate act of the employee to
disregard his own personal safety.
ART. 173 (LC). EXTENT OF LIABILITY.
Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the
employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, RA
No. 1161, as amended, Commonwealth Act No. 186, as amended, Republic Act No. 610, as amended, and other laws whose benefits are administered
by the System, or by other agencies of the government.
Page 214
Employer LIABLE if the cause of death or personal injury arose out of and in the course of Employment, even if the event was
purely accidental or fortuitous.
b.
Employer NOT LIABLE if the cause of death or personal injury was due to the employees own notorious negligence, or
voluntary act or drunkenness.
c.
Compensation EQUITABLY REDUCED if the cause was partly due to the employees lack of due care.
d.
Employer SOLIDARILY LIABLE with guilty fellow worker if the cause was due to the negligence of a fellow worker
e.
Employer LIABLE - if the cause was due to the intentional or malicious act of a fellow worker, UNLESS the employer can prove
that he exercised due diligence in selecting and supervising said fellow worker, in which case, only said fellow worker will be held
liable.
NOTE: THERE SHOULD BE NO REDUCTION FROM EMPLOYEES WAGES AS HIS CONTRIBUTION FOR ECC ON ACCOUNT THAT THE
CONTRIBUTION MUST BE GIVEN BY HIS EMPLOYER.
b)
2)
3)
4)
5)
prescription drugs and biologicals; subject to the limitations stated in Section 37 of this Act;
6)
Outpatient care:
1)
2)
3)
4)
prescription drugs and biologicals, subject to the limitations described in Section 37 of this Act;
c)
d)
Such other health care services that the Corporation shall determine to be appropriate and cost-effective: Provided, That the Program,
during its initial phase of implementation, which shall not be more than five (5) years, shall provide a basic minimum package of benefits
which shall be defined according to the following guidelines:
1)
the cost of providing said packages is such that the available national and local government subsidies for premium payments of
indigents are sufficient to extend coverage to the widest possible population.
2)
the initial set of services shall not be less than half of those provided under the current Medicare Program I in terms of overall
average cost of claims paid per beneficiary household per year.
3)
the services included are prioritized, first, according to its cost-effectiveness and, second, according to its potential of providing
maximum relief from the financial burden on the beneficiary: Provided, That, in addition to the basic minimum package, the
Program shall provide supplemental health benefit coverage to beneficiaries of contributory funds, taking into consideration the
availability of funds for the purpose from said contributory funds: Provided, further, That the Program progressively expand the
basic minimum benefit package as the proportion of the population covered reaches targeted milestone so that the same
benefits are extended to all members of the Program within five (5) years after the implementation of this Act. Such expansion
will provide for the gradual incorporation of supplementary health benefits previously extended only to some beneficiaries into
the basic minimum package extended to all beneficiaries: and Provided, finally, That in the phased implementation of this Act,
there should be no reduction or interruption in the benefits currently enjoyed by present members of Medicare.
SEC. 11. Excluded Personal Health Service. The benefits granted under this Act shall not cover expenses for the services enumerated hereunder
except when the Corporation, after actuarial studies, recommend their inclusion subject to the approval of the Board:
a)
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c)
d)
cosmetic surgery;
e)
f)
optometric services;
g)
h)
SEC. 12. Entitlement to Benefits. A member whose premium contributions for at least three (3) months have been paid within six (6) months prior to
the first day of his or his availment, shall be entitled to the benefits of the Program: Provided, That such member can show that he contributes thereto
with sufficient regularity, as evidenced in his health insurance ID card: and Provided, further, That he is not currently subject to legal penalties as
provided for in Section 44 of this Act.
The following need not pay the monthly contributions to be entitled to the Programs benefits:
a)
Retirees and pensioners of the SSS and GSIS prior to the effectivity of this Act;
b)
Members who reach the age of retirement as provided for by law and have paid at least one hundred twenty (120) contributions; and
c)
Enrolled indigents.
SEC. 13. Portability of Benefits. The Corporation shall develop and enforce mechanisms and procedures to assure that benefits are portable across
Offices.
SEC. 17. Quasi-Judicial Powers. The Corporation, to carry out its tasks more effectively, shall be vested with the following powers:
a)
to conduct investigations for the determination of a question, controversy, complaint, or unresolved grievance brought to its attention,
and render decisions, orders, or resolutions thereon. It shall proceed to hear and determine the case even in the absence of any party who
has been properly served with notice to appear. It shall conduct its proceedings or any part thereof in public or in executive session;
adjourn its hearings to any time and place; refer technical matters or accounts to an expert and to accept his reports as evidence; direct
parties to be joined in or excluded from the proceedings; and give all such directions as it may deem necessary or expedient in the
determination of the dispute before it;
b)
to summon the parties to a controversy, issue subpoenas requiring the attendance and testimony of witnesses or the production of
documents and other materials necessary to a just determination of the case under investigation;
c)
to suspend temporarily, revoke permanently, or restore the accreditation of a health care provider or the right to benefits of a member
and/or impose fines after due notice and hearing. The decision shall immediately be executory, even pending appeal, when the public
interest so requires and as may be provided for in the implementing rules and regulations. Suspension of accreditation shall not exceed
twenty-four (24) months. Suspension of the rights of the members shall not exceed six (6) months.
The Dept. of Labor shall be solely responsible for the administration and enforcement of occupational safety and health laws,
regulations and standards in all establishments and workplaces wherever they may be located; however, chartered cities may be
allowed to conduct industrial safety inspections of establishments within their respective jurisdictions where they have adequate
facilities and competent personnel for the purpose as determined by the Department of labor and subject to national standards
established by the latter
(b)
The Secretary of Labor may, through appropriate regulations, collect reasonable fees for the inspection of steam boilers, pressure
vessels and pipings and electrical installations, and test and approval of plans for such materials, equipment and devices. The fee so
collected shall be deposited in the national treasury to the credit of the occupational safety and health fund and shall be expended
exclusively for the administration and enforcement of safety and other labor laws administered by the Department of Labor.
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In the pursuit of an independent foreign policy and while considering national sovereignty, territorial integrity, national interest and the right to
self-determination paramount in its relations with other states, the State shall, at all times, uphold the dignity of its citizens whether in country
or overseas, in general, and Filipino migrant workers, in particular, continuously monitor international conventions, adopt/be signatory to and
ratify those that guarantee protection to our migrant workers, and endeavor to enter into bilateral agreements with countries hosting overseas
Filipino workers. (As amended by RA 10022)
(b)
While recognizing the significant contribution of Filipino migrant workers to the national economy through their foreign exchange remittances,
the State does not promote overseas employment as a means to sustain economic growth and achieve national development. The existence of
the overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of the Filipino
citizens shall not, at any time, be compromised or violated. The State, therefore, shall continuously create local employment opportunities and
promote the equitable distribution of wealth and the benefits of development.
(c)
The State affirms the fundamental equality before the law of women and men and the significant role of women in nation-building. Recognizing
the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the
formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of
migrant workers.
(d)
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any persons by reason of poverty. In this
regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in
general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded.
(e)
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. In this
regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in
general, and Filipino migrant workers, in particular, whether regular/documented or irregular/undocumented, are adequately protected and
safeguarded. (As amended by RA 10022)
(f)
The State recognizes that the ultimate protection to all migrant workers is the possession of skills. Pursuant to this and as soon as practicable,
the government shall deploy and/or allow the deployment only to skilled Filipino workers.
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The State recognizes that the most effective tool for empowerment is the possession of skills by migrant workers. The government shall provide
them free and accessible skills development and enhancement programs. Pursuant to this and as soon as practicable, the government shall
deploy and/or allow the deployment only of skilled Filipino workers. (As amended by RA 10022)
(h)
The State recognizes non-governmental organizations, trade unions, workers associations, stakeholders and their similar entities duly
recognized as legitimate, are partners of the State in the protection of Filipino migrant workers and in the promotion of their welfare. The State
shall cooperate with them in a spirit of trust and mutual respect. The significant contribution of recruitment and manning agencies shall from
part this partnership. (As amended by RA 10022)
Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based by local service contractors and manning agencies
employing them shall be encouraged. Appropriate incentives may be extended to them.
Q: IS IT THE POLICY OF THE STATE TO PROMOTE EMPLOYMENT OVERSEAS?
A: NO. THE LAW ONLY PROVIDES PROTECTION FOR THE EES OVERSEAS.
It has existing labor and social laws protecting the rights of migrant workers;
(b)
It is a signatory to multilateral conventions, declaration or resolutions relating to the protection of migrant workers;
(c)
It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and
(d)
SEC. 5. Termination or ban on deployment - Notwithstanding the provisions of Section 4 hereof, the government, in pursuit of the national interest or
when public welfare so requires, may, at any time, terminate or impose a ban on the deployment of migrant workers.
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To 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;
(b)
To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c)
To give any false 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, which include the act of reprocessing
workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different
employer whether registered or not with the POEA;
(d)
To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is
designed to liberate a worker from oppressive terms and conditions of employment;
(e)
To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his
agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;
(f)
To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the
Philippines;
(h)
To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from
jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;
(i)
To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and
Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the
approval of the Department of Labor and Employment;
(j)
For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in
travel agency or to be engaged directly or indirectly in the management of travel agency;
(k)
To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other
reasons, other than those authorized under the Labor Code and its implementing rules and regulations;
(l)
Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in
cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or
in large scale shall be considered an offense involving economic sabotage; and
(n)
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one
another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:
(1)
Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and
allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated
checks in relation to the said loan;
(2)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically
designated institutions, entities or persons;
(3)
Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely
terminated through no fault of his or her own;
(4)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from
specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is
shouldered by the principal/shipowner;
(5)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or
schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by
principals/shipowners where the latter shoulder the cost of such trainings;
(6)
For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers'
applications; and
(7)
For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the
payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance
coverage.
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having
ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible
employees/agents thereof shall be liable.
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Direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of the diplomatic corps and
others mentioned in this Article. Also excepted are name hires or those individual workers who are able to secure contracts for
overseas employment on their own efforts and representation without the assistance or participation of any agency. Their hiring,
nonetheless, has to be processed through the POEA. (Azucena)
ART. 26. Travel agencies prohibited to recruit. Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of
recruitment and placement of workers for overseas employment whether for profit or not.
In addition to those mentioned in this article, the POEA Rules also disqualify persons with derogatory records such as those convicted
for illegal recruitment or other crimes involving moral turpitude. The same prohibition extends to any official or employee of DOLE,
POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 or any of their relatives
within the fourth civil degree. (Azucena)
Q: IF THRU FACEBOOK A FRIEND OFFERED YOU A JOB IN CANADA, CAN YOU BE EMPLOYED THIS WAY?
A: YES, AS A NAME HIRE. I AM NOT PROTECTED BY FOREIGN EMPLOYMENT LAW BECAUSE IT ONLY APPLIES TO EMPLOYMENT
COURSED THROUGH POEA.
MONEY CLAIMS
SEC. 10. MONEY CLAIMS. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the priginal and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including
claims for actual, moral, exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and
several. This provisions shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The
performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that
may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case
may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
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The salary of any such official who fails to render his decision or resolutions within the prescribed period shall be, or caused to be,
withheld until the said official complies therewith;
(b)
(c)
Dismissal from the service with disqualifications to hold any appointive public office for five (5) years.
Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official may have incurred
under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.
NOTE: Serrano vs. Gallant Maritime Services et al., G.R. No. 167614, March 24, 2009 En Banc Par 5, Sec. 10, RA 8042 declared unconstitutional
insofar as it limits the award to three months for every year of the unexpired term, whichever is less, stating that an OFW who is unjustly dismissed
is entitled to his salaries for the unexpired portion of his employment contract. It violates the equal protection clause: it creates a sub-layer of
discrimination among OFWs whose contract periods are for more than one year: (i) those with less than one year left in their contracts -- entitled to
their salaries for the entire unexpired portion, while (ii) those with one year or more remaining in their contracts -- their monetary benefits limited to
their salaries for three months only (the three (3) months salary cap applies when the term of the contract is fixed at one (1) year or longer).
Q: WHAT COULD BE A VALID REASON OF FAILURE TO DEPLOY AN APPLICANT?
A: WAR
Q: WHAT IS THE UNAUTHORIZED INTEREST ON LOANS?
A: MORE THAN 8%
Q: MR SAYSON WAS GIVEN 2YRS CONTRACT IN CANADA, AFTER 6 MOS THE ER TERMINATED HIS EMPLOYMENT. HE WAS REPATRIATED.WAS HE
ILLEGALLY DIMISSED? YES. WHAT ARE HIS RELIEFS?
A: MONEY CLAIMS REPRESENTING FULL REIMBURSEMENT OF PLACEMENT PAY AT 12% PER ANNUM, PLUS HIS SALARIES FOR THE UNEXPIRED
PORTION OF HIS EMPLOYMENT CONTRACT.
NOTE: The Overseas Workers Welfare Administration (OWWA), in coordination with appropriate international agencies, shall undertake the
repatriation of workers in cases of war, epidemic, disaster or calamities, natural or man-made, and other similar events without prejudice to
reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs
attendant to repatriation shall be borne by the OWWA.
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