PRELIMINARY TITLE

CHAPTER I GENERAL PROVISIONS

ART. 1. NAME OF DECREE Labor Code of the Philippines LABOR LEGISLATION - consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. - body of statutes, rules and doctrines that defines State policies on labor and employment, and governs the rights and duties of workers and employers respecting terms and conditions of employment by prescribing certain standards therefore, or by establishing a legal framework within which better terms and conditions of work could be obtained through collective bargaining or other concerted activity. It is divided into: Labor Standards ( Books I IV ) Labor Relations (Books V VII ) ART. 2. DATE OF EFFECTIVITY The Labor Code took effect on November 1, 1974 (six months after its promulgation on May 1,1974) SEVEN (7) BASIC RIGHTS OF WORKERS AS GUARANTEED BY THE CONSTITUTION: ( Art.13, Sec.3, 2nd par. Consti.) (POWEERSC) 1. Right to Participate in Policy & DecisionMaking Processes affecting their rights and benefits as may be provided by law 2. Right to Organize Themselves 3. Right to Work Under Humane Conditions 4. Right to Engage in Peaceful Concerted Activities including Strike in accordance with law 5. Right to Enjoy Security of Tenure 6. Right to Receive a Living Wage 7. Right to Share in the Fruits of Production 8. Right to Conduct Collective Bargaining or Negotiation with Management CONSTITUTIONAL PROVISIONS THAT GUARANTEE THE RIGHTS OF WORKERS, PROTECT THEIR SPECIAL INTEREST, OR PROMOTE THEIR GENERAL WEFARE:

LABOR STANDARDS - the minimum requirements prescribed by existing laws, rules and regulations relating to : wages hours of work cost-of-living allowance other monetary and welfare benefits, including occupational safety, and health standards. (Maternity Childrens Hospital vs Sec of Labor G.R. No. 78909. June 30,1989) LABOR RELATIONS LAW that which defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. -The law which seeks to stabilize the relation between employers and employees, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration. EMPLOYER - one who employs the services of others; one for whom employees work and who pays their wages or salaries. EMPLOYEE - one who works for an employer; a person working for salary or wages - shall not be limited to the employees of a particular employer; it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of unfair labor practice IF he has not obtained any other 1. Substantially equivalent and 2. Regular employment

1. Protection to Labor (Sec. 3, Article XIII) 2. Right of workers to form unions (Sec.3,
Article XIII, second paragraph, Bill of Rights)

3. Principle of shared responsibility (third

paragraph, Article XIII)

4. Right of employers to profit (last paragraph, 5.

Article XIII, section 3) Employment of women workers (Sec. 14, Article XIII)

RELATED LAWS:

1. CIVIL CODE:
Art. 1700. The relations 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 laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects. Art. 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. Art. 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.

2. REVISED PENAL CODE:

Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing,

a. b. c. d.

just and humane conditions of work self-organization security of tenure collective bargaining CONSTRUCTION IN FAVOR OF

- maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code.

ART. 4. LABOR

The rule is applicable if there is a doubt as to the meaning of the legal and contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms. In interpreting the Constitutions protection to labor and social justice provisions and the labor laws and rules and regulations implementing the Constitutional mandate, the SC adopts the liberal approach which favors the exercise of labor rights.(Meralco vs. NLRC, G.R.No. 78763. Jul.12, 1989) While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute shall be automatically resolved in favor of labor. As held in Colgate Palmolive Philippines vs Ople( G.R.No. 73681. June 30,1988), it is mandated that there be equal protection and respect not only the laborers side but also the management and/or employers side. The law, in protecting the rights of the laborer, authorizes neither oppression nor selfdestruction of the employer. MANAGEMENT PREROGATIVE (SMB vs Ople, G.R.No. 53515. Feb.8,1989) - 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 OF WORK, TOOLS TO BE USED, PROCESSES TO BE FOLLOWED, SUPERVISION OF WORKERS, WORKING REGULATIONS, TRANSFER OF EMPLOYEES, WORK SUPERVISION, LAY-OFF OF WORKERS, AND DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD) MANAGEMENT RIGHTS: [CPST ] C P S T Right to conduct business Right to prescribe rules Right to select and hire employees Right to transfer or discharge employees

3. SPECIAL LAWS:
SSS Law GSIS Law Agrarian Reform Law 13th Month Pay Law Magna Carta for Public Health Workers

AIM, REASON, JUSTIFICATION OF LABOR LAWS: - raison detre : SOCIAL JUSTICE the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be proximated. - constitutional basis: Art.2, Secs.9 &10 Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Section 10. The State shall promote social justice in all phases of national development.

BASIS OR FOUNDATION OF LABOR LAWS: POLICE POWER - "states authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (PASEI vs. Drilon, G.R.No.L-81958. June 30,1988)

ART. 3. DECLARATION OF BASIC POLICY

(1)The State shall: [PEAR] a. promote full employment, b. ensure equal work opportunities
regardless of sex, age or creed, and

ART.5. RULES AND REGULATIONS The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.

c. afford protection to labor, d. regulate the relations between workers

and employers. (2)The State shall assure the right of workers to: [JSSC]

It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. The Labor Code itself vests the Department of Labor and Employment with

rule-making powers in the enforcement whereof. (PASEI vs Drilon) ART. 6. APPLICABILITY The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code. PURPOSE: intended to encourage workers to seek employment in agricultural enterprises instead of migrating to already over crowded urban areas to find work in industrial establishments. - It is important to distinguish if the employee is employed in a GOCC with an original charter or not. ( see discussion in Art. 244) AGRICULTURAL OR FARM WORKER - one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activity performed by a farmer as an incident to or in conjunction with such farming operations.

PRESENT RETENTION LIMITS: - 5 hectares per landowner and 3 hectares per child provided the child is: at least 15 years of age; and actually tilling the land or directly managing the farm LANDS NOT COVERED: livestock and poultry farms those covered by homestead patents residential subdivisions

EMANCIPATION PATENT - the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation of the tenant from the bondage of the soil. PROHIBITION INTENDED TO: AGAINST ALIENATION IS

1. preserve the landholding in the hands of the owner-tiller and his heirs; 2. minimize land speculation; and 3. prevent a return to the regime of land ownership by a few.

- There may be in one employer both

agricultural as well as industrial workers. Agricultural workers receive salaries lower than the prescribed minimum for industrial and commercial employees.

BOOK ONE
PRE-EMPLOYMENT TITLE I RECRUITMENT AND PLACEMENT OF WORKERS CHAPTER I GENERAL PROVISIONS
ART. 13. DEFINITIONS (a) WORKER - any member of the labor force, whether employed or unemployed (b) RECRUITMENT AND PLACEMENT - any act of (CEC-TUHP) canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes (RCPA) referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; PROVIDED, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. - The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates a presumption.(PP vs Panis, G.R. No. L-58674-77. July 11, 1986) ELEMENTS OF ENGAGING IN RECRUITMENT & PLACEMENT ACTIVITIES: These conditions must recruitment & placement. concur to constitute

CHAPTER II EMANCIPATION OF TENANTS (Note: not included as per SC Memo) (amended by RA 6657, CARL)
ARTS. 7-11. Constitutional basis : Art.XIII, Sec.4 The Sate shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities andreasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing. - Share tenancy has been abolished placing in its stead leasehold system.

- Under Art. 8, the land covered by operation

land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in area.

1. The complainant had a distinct impression that the accused had the power to send complainant abroad for work; and 2. The complainant was convinced to part with his money in order to be so employed. (PP vs. Goce, G.R.No.113161. Aug. 29, 1995) ART. 16. PRIVATE RECRUITMENT 1. 2. 3. ENTITIES AUTHORIZED TO RECRUIT: Public employment offices Private recruitment entities Private employment agencies 4.Shipping or manning agents or representatives 5. The POEA 6.Construction contra ctors if authorized by the DOLE and the Construction Industry Authority 7.Members of the diplomatic corps (but hiring must also go thru POEA) 8.Other persons or entities as may be authorized by the DOLE secretary ART. 17. (POEA) The POEA has taken over the functions of the OEDB & NSB. 4 GOVT AGENCIES WHICH ARE GIVEN THE DUTY TO PROMOTE MIGRANT WORKERS WELFARE: 1. DOLE 2. POEA 3. OWWA 4. DFA PRINCIPAL FUNCTIONS OF THE POEA: (FPD) 1. formulation, implementation, & monitoring of overseas employment of Filipino workers 2. protection of their rights to fair and equitable employment practices 3. deployment of Filipino workers through government-to-government hiring REGULATORY FUNCTION OF THE POEA: - regulates private sector participation in the recruitment and overseas placement of workers through its licensing and registration system. ADJUDICATORY FUNCTIONS OF THE POEA: 1.All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and 2.Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting 3. partners and Filipino Migrant Workers GROUNDS FOR DISCIPLINARY (Under the MWA of 1995) : ACTION

4. Drunkenness, especially where the laws of the of the host country prohibit intoxicating drinks; 5. Gambling, especially where the laws of the host country prohibit the same; 6. Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions; 7. Creating trouble at the worksite or in the vessel; 8. Embezzlement of company funds or of money and properties of a fellow 9. worker entrusted for delivery to kins or relatives in the Philippines; 10. Theft or robbery; 11. Prostitution; 12. Vandalism or destroying company property; 13. Gunrunning or possession of deadly weapons; 14. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agencies; and 15. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker. WHERE TO FILE DISCIPLINARY ACTION CASES - Rule VII of Book VII of the POEA Rules provides that complaints for breach of discipline against a contract worker shall be filed with the Adjudication Office or Regional Office of the POEA, as the case may be. The POEA may motu propio undertake disciplinary action against a worker for breach of discipline. It shall establish a system of watchingand blacklisting of overseas contract workers. JURISDICTION TRANSFERRED TO THE LABOR ARBITERS OF THE NLRC (Sec. 10, RA 8042): - 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. VENUE: Money claims or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated, at the option of the complainant.. COMPROMISE AGREEMENT: Consistent with the policy encouraging amicable settlement of labor disputes, Sec 10, RA 8042 allows resolution by compromise of cases filed with the NLRC. RULE ON PREMATURE TERMINATION OF CONTRACT 1. RULE: Termination before the agreed termination date based not on lawful or valid ground, employer will pay employee corresponding to the unexpired portion of the employment contract (Tierra Intl Construction Corp. vs. NLRC) 2. HOWEVER, under R.A. 8042, Cut-off date: JULY 15, 1995 - illegally dismissed employees are entitled to full reimbursement of his placement fee with

1. Commission of a felony punishable by the laws of the Philippines or by the host country; 2. Drug addiction or possession or trafficking of prohibited drugs; 3. Desertion or abandonment;

interest at 12% per annum PLUS salary for unexpired portion of his employment OR for three (3) months for every year of the unexpired term whichever is less - However, SC clarified in the case of Marsaman Manning Agency vs. NLRC (G.R.No. 127195. Aug.25,1999) that a plain reading of section 10 clearly reveals that the choice of which amount to award an illegally dismissed OCW, i.e. whether his salaries for the unexpired portion of his employment contract or 3 months salary for every year of the unexpired term whichever is less, comes into play ONLY when the employment contract concerned has a term of at least 1 year or more. This is evident from the words for every year of the unexpired term which follows the salaries x xxx for three months. - Under Section 10, RA 8042, the claim for unpaid salaries of overseas workers should be whichever is less between salaries for unexpired portion of the contract or 3 months for every year of the remaining unexpired portion of the contract (in case contract is one year or more) (SKIPPERS PACIFIC,INC. VS. MIRA, ET AL. NOV. 21, 2002) - The basis for the award of backwages is the parties employment contract, stipulating the wages and benefits. N.B. SIGNING A SATISFACTION RECEIPT IS NOT A WAIVER! Any agreement to receive less compensation that what the worker is entitled to recover is INVALID (MR Yard Crew Union vs. PNR) RULE ON SIDE AGREEMENTS An agreement that diminishes the employees pay and benefits as contained in a POEA approved contract is void, unless such subsequent agreement is approved by POEA.. (Chavez vs. Bonto-Perez. G.R.No. 109808. Mar.1,1995) MINIMUM REQUIREMENTS OR EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT PRESCRIBED BY POEA :

3.

Free emergency medical and dental treatment and facilities; 4. Just causes for termination of the contract or of the services of the workers; 5. Workmens compensation benefits and war hazard protection; 6. Repatriation of workers remains and properties in case of death to the point of hire, or if this is not possible, the proper disposition thereof; 7. Assistance on remittance of workers salaries, allowances or allotments to his beneficiaries; and 8. Free and adequate board and lodging facilities or compensatory food allowance at prevailing cost of living standards at the jobsite ART. 18. BAN ON DIRECT HIRING GENERAL RULE: Direct hiring of Filipino workers by a foreign employer is NOT allowed.

EXCEPTIONS:
1. Direct hiring by: a. the members of the diplomatic corps; b. international organizations; and c. such other employers as may be allowed by DOLE 2. named hirees individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation or any agency RATIONALE OF THE PROHIBITION Filipino workers hired directly by a foreign employer without government intervention may not be assured of the best possible terms and conditions of work. The foreign employer must also be protected as he may chance upon a Filipino worker who does not possess sufficient knowledge for which he is employed. ART. 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS MANDATORY REMITTANCE REQUIREMENTS: - It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country. -The POEA Rules (Book III, Rule VIII) prescribe the percentages of foreign exchange remittance ranging from 50% to 80% of the basic salary, depending on the workers kind of job.

1.Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the POEA; 2. Free Transportation from point of hire to site of employment and return;

CHAPTER II

NATURE OF JOB Seamen or mariners Workers for Filipino Contractors and Construction Companies Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities All other professionals without board and lodging: Domestic and other service of workers

FOREIGN EXCHANGE REMITTANCE

80% of the basic salary 70% of the basic salary 70% of the basic salary

50% of the basic salary 50% of the basic salary - such as but not limited to those directed to be included in the list of persons and entities issued by POEA pursuant to: a) those certified to have derogatory record
b) c) d) or information by NBI or by the Anti-illegal Recruitment Branch of POEA those against whom probable cause or prima facie finding of guilt or illegal recruitment of other related cases exist those convicted for illegal recruitment or other related cases and /or crimes involving moral turpitude those agencies whose licenses have been previously cancelled or revoked by POEA for violation of RA 8042, PD 442 as amended and their implementing rules and regulations as well as the Labor Codes implementing rules and regulations

REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES

ART. 25. PRIVATE SECTOR PARTICIPA-TION IN THE RECRUITMENT AND PLACE-MENT OF WORKERS QUALIFICATIONS FOR PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM:

1. Citizenship requirement (Art.27,LC)

Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens 2. Capitalization (Art. 28, LC) For single proprietorship or partnership Minimum capitalization of two (2) million in case of For corporations - a minimum paid up capital of 2 million provided that in those with existing licenses shall , within 4 years from effectivity hereof, increase their capitalization or paid-up capital, as the case maybe, to two million pesos at the rate of two hundred fifty thousand pesos (P250,000) every year 3. Those not otherwise disqualified by law or guidelines to engage in the recruitment and placement of workers for overseas employment. THE FF. ARE DISQUALIFIED FROM RECRUITMENT & PLACEMENT OF WORKERS FOR OVERSEAS EMPLOYMENT WHETHER FOR PROFIT OR NOT: (TOCDP2)

5. Persons employed in the Department of

Labor or in other

6. government agencies directly involved in

overseas employment program and their relatives within the 4th degree of consanguinity or affinity; or Those whose license has been previously canceled or revoked( POEA Rules & Regulations governing the Recruitment & Employment of Land-Based Overseas Workers of 2002 ) OF

7.

ART. 29. NON-TRANSFERABILITY LICENSE OR AUTHORITY

1. Travel agencies and sales agencies of

airline companies; (art.26,LC)

- No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. - Licensees or holders of authority or their duly authorized representatives may as a rule, undertake recruitment and placement activities only at their authorized official addresses. (Under existing regulations, they may be allowed to conduct provincial recruitment and/or job fairs only upon written authority from POEA)
- Change of ownership or relationship of single proprietorship licensed to engage in overseas

2. Officers or members of the board of any 3.

corporation or members in a partnership engaged in the business of a travel agency; Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency; (interlocking officers) Persons, partnerships, or corporations which have derogatory records;

4.

employment shall cause the automatic revocation of the license. ART. 31. BONDS - All applicants for license or authority shall post such cash and surety bonds as determined by the Sec. of Labor. PURPOSE: ( GE )

1. To guarantee compliance with prescribed

recruitment procedures, rules and regulations, and terms and 2. conditions of employment as may be appropriate; 3. To ensure prompt and effective recourse against such companies when held liable for applicants or workers claim (Finman General Assurance vs Innocencio. G.R.No. 90273-75. Nov.15,1989) Cash bond filed by applicants for license or authority is not subject to garnishment by a judgment creditor of the agency - POEA: possesses the power to enforce liability under cash or surety bonds ART. 32. FEES TO BE PAID BY WORKERS

- Any person applying with a private feecharging employment agency for employment assistance shall not be charged any fee until he has obtained employment though its efforts or has actually commenced employment.
- Fees paid shall always be covered with the appropriate receipt clearly showing the amount paid. POEA: has the power to : 1. suspend/cancel license 2. order the refund/reimbursement of such fees as may have been illegally collected 3. award damages to repair the injury caused to the victim

designed to liberate the worker from oppressive terms and conditions of employment; 5. To influence 6. or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; 7. To engage in the recruitment or placement of jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; 8. To obstruct inspection by the Secretary of Labor or by his duly authorized representatives; 9. To fail to file reports on the status of employment, placement, vacancies, remittances of foreign exchange earnings, separation from jobs, 10. departures and such other matters or information as may be required by the Secretary of Labor; 11. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; 12. To become an officer or member of the Board of any corporation 13. engaged directly or indirectly in the management of a travel agency; and 14. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. ART. 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

authority - document issued by DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity (Art.13 f, LC) license - a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency.

GROUNDS FOR REVOCATION OF LICENSE: (IVEE)

ART. 34. PROHIBITED PRACTICES

It shall be unlawful for any individual, entity, licensee, or holder of authority:

1. incurring an accumulated three counts of

suspension by an agency based on final and executory orders within the validity period of its license violation/s of the conditions of license; engaging in act/s of misrepresentation for the purpose of securing a license or renewal thereof; engaging in the recruitment or placement of workers to jobs harmful to the public health or morality or to the dignity of the Republic of the Philippines;,(POEA 2000 Rules)

1. 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, or to make a worker pay any amount greater than that actually received by him as a loan or advance; 2. To furnish or publish any false notice or information or document in relation to recruitment or employment; 3. 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 this Code; 4. To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is

2. 3. 4.

GROUNDS FOR SUSPENSION/ CANCELLATION OF LICENSE: (CD2SP)

1. Charging a fee before the worker is

employed or in excess of the authorized amount;

2. Doing recruitment in places outside its 3. Deploying 4. 5.

authorized area; workers without processing through the POEA; and Substituting or altering employment contracts; Publishing job announcements without the POEAs prior approval (Sec.4, Rule2, Book IV ,POEA Rules) f)

g)

NON-LICENSEE OR NON-HOLDER OF AUTHORITY - any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary. (PP vs. Diaz 259 scra 441.1996)

h) i)

The DOLE Secretary and the POEA Administrator exercise concurrent jurisdiction to suspend or cancel a license. (TransAction Overseas Corp.vs Sec. of Labor. G.R.No.109583. Sept.5,1997)

j)

CHAPTER III MISCELLANEOUS PROVISIONS

ART. 38. ILLEGAL RECRUITMENT (as per RA 8042 otherwise known as the Migrant Workers Act of 1995) ILLEGAL RECRUITMENT - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not when undertaken by a non-licensee or non-holder of authority; PROVIDED that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the commission of the following prohibited acts whether committed by a nonlicensee or non-holder of authority or a licensee or holder of authority. (Sec.6, RA 8042) a) 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, or to make a worker pay any amount greater than that b) actually received by him as a loan or advance c) To furnish or publish any false notice or information or document in relation to recruitment or employment; d) 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; e) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed

k)

l) m) n) o) p)

to liberate the worker from oppressive terms and conditions of employment; To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; To engage in the recruitment or placement of jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; To obstruct inspection by the Secretary of Labor or by his duly authorized representatives; To fail to file reports on the status of employment, placement, vacancies, remittances of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor; To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged directly or indirectly in the management of a travel agency; To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations; Failure to actually deploy without valid reason as determined by DOLE; and 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 workers fault.

Recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment.
QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL RECRUITMENT AS AN OFFENSE INVOLVING ECONOMIC SABOTAGE:

When illegal recruitment is committed by a SYNDICATE if it is carried out by a group of three (3) or more persons conspiring and confederating with one another

I. When illegal recruitment is committed in a

LARGE SCALE

if it is committed against three (3) or more persons

1. automatic revocation 2. 3.

These circumstances only qualify the offense. They do not define the offense themselves.

When the labor Code speaks of illegal recruitment committed against three (3) or more persons individually or as a group, it must be understood as referring to the number of complainants in each case who are complainants therein, otherwise, prosecutions for single crimes of illegal recruitment can be cumulated to make out a case of large scale illegal recruitment. In other words, a conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group (PEOPLE VS. SPS KARL AND YOLANDA REICHL, MAR. 7, 2002). (AFC)

of the license or authority(Art.39 e,LC) forfeiture of the cash and surety bonds(Art.39 e,LC) conviction for the crime of estafa provided all the elements of the crime are present (PP vs Calonzo. G.R.No.115150-55. sept.27,1996)

EFFECT OF REPEATED REHIRING OF SEAMEN Still contractual employees despite of repeated rehirings for more than 20 years. They do not become regular employees (MILLARES VS. NLRC, MAR. 14, 2000). VENUE OF ACTIONS ON ILLEGAL RECRUITMENT: RTC of the province or city: 1. where the offense was committed; or 2. where the offended party resides at the time of the commission of the offense at the option of the complainant

CONSEQUENCES OF CONVICTION:

SUMMARY OF RULES ON PRESCRIPTIVE PERIOD & PENALTY: ILLEGAL RECRUITMENT Prescriptive Period Penalty REGULAR 5 years PRISION MAYOR & FINE (not more than 500,000 but not less than 200,000 AS AN ECONOMIC SABOTAGE 20 years LIFE IMPRISONMENT & FINE (not more than 1M but not less than 500,000

N.B. maximum penalty shall be imposed if the person illegally recruited is less than 18 years of age or committed by a nonlicensee or non-holder of authority

The application for an employment permit shall be accompanied by the following: (a) Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and other data showing that he possesses high technical skills in his trade or profession; (b) Contract of employment between the employer and the principal which shall embody the following, among others;
1) That the non-resident alien worker shall

TITLE II EMPLOYMENT OF NON-RESIDENT ALIENS

ART. 40. EMPLOYMENT PERMIT OF NONRESIDENT ALIENS

- No alien seeking employment, whether on

resident or non-resident status, may enter the Philippines without first securing an employment permit from the Department of Labor and Employment (Bureau of Local Employment). - If an alien enters the country under a nonworking visa and wishes to be employed thereafter, he may only be allowed to be employed upon presentation of a duly approved employment permit. Requirements before an alien can work in the Philippines:

comply with all applicable laws and rules and regulations of the Philippines; 2) That the non-resident alien worker and the employer shall bind themselves to train at least two (2) Filipino understudies for a period to be determined by the Secretary of Labor and Employment; and 3) That he shall not engage in any gainful employment other than that for which he was issued a permit.

a) Work permit from DOLE - BLE

b) Working visa from Bureau of Immigration REQUIREMENTS FOR EMPLOYMENT PERMIT APPLICATION (Section 5, LC Implementing Rules)

(c) A designation by the employer of at least two (2) understudies for every alien worker. Such understudies must be the most ranking regular employees in the section or department for which the expatriates are being hired. The employer shall submit a training program for his understudies to the Bureau within thirty (30) days upon arrival of the alien workers. Purpose of understudy : to ensure the actual transfer of technology.

Instances where there is no need for employer to designate understudies: 1. elected board members in multinational companies 2. artists / athletes 3. missionaries 4. lecturers/ instructors / trainors 5. foreign technicians who install equipments Understudy any qualified Filipino citizen designated by a local employer to be trained by a foreign national allowed to work in the country by virtue of an employment permit granted him by the Secretary under an approved understudy training program (Implementing Rules, Book 1, Rule 1, Section 1[1]). ISSUANCE OF EMPLOYMENT (Section 6, LC Implementing Rules) PERMIT

- For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said enterprise. DURATION OF EMPLOYMENT PERMIT (Section 7, LC Implementing Rules)

- Subject to renewal upon showing of good cause, the employment permit shall be valid for a minimum period of one (1) year starting from the date of its issuance unless sooner revoked by the Secretary of Labor and Employment for violation of any provisions of the Code or of these Rules.
PROHIBITION AGAINST EMPLOYMENT OF ALIENS A. GENERAL RULE.

- The Secretary of Labor and Employment may issue an employment permit to the applicant based on: a) Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is competent, able, and willing to do the job for which the services of the applicant are desired at the time of application to perform the services for which the alien is desired. b) His assessment as to whether or not the employment of the applicant will redound to the national interest; c) Admissibility of the alien as certified by the Commission on Immigration and Deportation; d) The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with imperatives of economic developments; and e) Payment of a P100.00 fee.

Foreigners may not be employed in certain nationalized business. Section 2-A of the Anti-Dummy Law prohibits the 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. B. EXCEPTIONS: 1. where the Secretary of Justice specifically authorizes the employment of technical personnel;

2. where the aliens are elected

members of the board of directors or governing body of corporations or association in proportion to their allowable participation in the capital of such entities; (DOJ Opinion No.143)

BOOK TWO
HUMAN RESOURCES DEVELOPMENT TITLE I NATIONAL MANPOWER DEVELOPMENT PROGRAM CHAPTER I NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION
ART. 43. STATEMENT OF OBJECTIVES OF NATIONAL MANPOWER DEVELOPMENT PROGRAM 1. to develop human resources; 2. to establish training institutions; and ART. 44. DEFINITIONS a. MANPOWER - that portion of the nations population which has actual or potential capability to contribute directly to the production of goods and services. b. ENTREPRENEURSHIP - training for selfemployment or assisting individual or small industries within the purview of Title II of the Labor Code. 3. to formulate such integrated plans, policies, & programs that will ensure efficient and proper allocation, development and optimum utilization of the nation's manpower, and thereby promote employment and accelerate economic and social growth.

TITLE II TRAINING AND EMPLOYMENT OF SPECIAL WORKERS CHAPTER I APPRENTICES

Types of Special Workers: 1. Apprentice 2. Learner 3. Handicapped ART. 57. STATEMENT OF OBJECTIVES FOR THE TRAINING & EMPLOYMENT OF SPECIAL WORKERS The promotion, development, and maintenance of apprenticeship programs shall have the following objectives: (a) To help meet the needs or demands of the economy for trained manpower in the widest possible range of employment; (b) To establish a national apprenticeship program through the participation of employers, workers, government, civic and other groups; and (c) To establish apprenticeship standards for the protection of apprentices and

2. 3.

shall be signed in his behalf by the parent or guardian or authorized representative of DOLE] possess vocational aptitude and capacity for appropriate tests; and possess the ability to comprehend and follow oral and written instructions

[ FYI: The apprenticeable age under art. 59 LC is 14 but it is 15 under the Implementing Rules. The question of variance is rendered moot and academic by RA 7610 which explicitly prohibits employment of children below 15 yrs. of age. RA 7610 recognizes certain exceptions, but being an apprentice is not one of the exceptions.]

Trade and industry associations may, 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.

ART. 60. EMPLOYMENT OF APPRENTICES WHO MAY EMPLOY:

upgrading of skills.
ART. 58. DEFINITION OF TERMS

Only employers in highly technical industries may employ apprentices and only in apprenticeable occupations as determined by the Secretary of Labor. FOR A VALID

REQUESITES APPRENTICESHIP:

a. APPRENTICESHIP - practical training on

the job supplemented by related theoretical instruction b. APPRENTICE - a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter c. APPRENTICEABLE OCCUPATION - any trade, form of employment or occupation which requires more than 3 months of practical training on the job supplemented by related theoretical instruction d. APPRENTICESHIP AGREEMENT - an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training e. ON-THE-JOB TRAINING practical work experience through actual participation in productive activities given to or acquired by an apprentice f. HIGHLY TECHNICAL INDUSTRIES a trade, business, enterprise, industry or other activity, which is engaged in the application of advanced technology. ART. 59. QUALIFICATIONS OF APPRENTICES Qualifications of an Apprentice: (15 VA ) 1. at least 15 years of age; [ provided that those who are at least 15 years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations and the apprenticeship agreement

1. Qualifications of the apprentice 2. Apprenticeship agreement duly executed and signed which shall contain the ff: (art.61, LC )
a. the duration of apprenticeship which shall not exceed 6 months b. the wage rates below the legal minimum wage which in no case shall start below 75% of the applicable minimum wage in the place where he is working { i.e. compensation which must not be less than 75% of the applicable minimum wage except on-the-job training (OJT)

3. Apprenticeship program duly approved by

the DOLE ( Nitto Enterprises vs. NLRC. G.R.No. 114337. Sept. 29,1995) [otherwise, theres a possibility that apprentice may become a regular employee] 4. Period of apprenticeship shall not exceed 6 months

ART. 62. AGREEMENT

SIGNING OF APPRENTICESHIP sign the Apprenticeship

Who shall Agreement:

Every apprenticeship agreement shall be signed by the employer or his duly authorized representative and by the apprentice. An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, or if the latter is not available, by an authorized

representative of the Department of Labor and Employment.

2. where services of foreign technicians are utilized by private companies in apprenticeable trades ART. 71. DEDUCTIBILITY OF TRAINING COSTS

ART. 63. PROGRAMS

VENUE OF APPRENTICESHIP

ON-THE-JOB TRAINING OF APPRENTICES MAY BE UNDERTAKEN IN: (a) the plant, shop or premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm; (b) the premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an association of employers, civic group and the like; and (c) DOLE Training Center or other public training institutions with which the Bureau has made appropriate arrangements.

An additional deduction from taxable income of 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: Provided, further, That such deduction shall not exceed ten percent (10%) 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.

ARTS. 65-67. VIOLATION APPRENTICESHIP AGREEMENT

OF

INVESTIGATION OF VIOLATION OF APPRENTICESHIP AGREEMENT: (art.65,LC) - Either party to an agreement may terminate the same after the probationary period only for a valid cause. How action may be Initiated. 1. upon complaint of any interested person 2. upon DOLEs own initiative APPEAL (art.66,LC) decision of authorized agency of DOLE
Within 5 days fr. receipt of decision

REQUISITES FOR TAX DEDUCTIONS IN CASE EMPLOYERS HAVE APPRENTICESHIP PROGRAMS: (PED)

1. the program must be duly recognized by the 2. 3.

Department of Labor; the deduction shall not exceed 10% of direct labor wage; and the employer must pay his apprentices the minimum wage APPRENTICES WITHOUT

ART. 72. COMPENSATION

Secretary of DOLE
[Sec of DOLEs decision is final & executory]

APPRENTICES MAY BE HIRED WITHOUT COMPENSATION WHERE TRAINING ON THE JOB IS: 1. required by the school; 2. required by the Training Curriculum; 3. a requisite for Graduation; or 4. a requisite for Board Examination LIABILITY OF A WORKING SCHOLAR - Under this article the student is not considered an employee. But if he causes injury or damage to a third person, the school may be held liable under the civil code, - There is no employer-employee relationship between students on one hand, and schools, colleges or universities on the other, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement. ( Rule X. Sec. 14, Book III, Implementing Rules) Section 14, Rule X, Book III of the Rules implementing the Labor code was promulgated by the Secretary of Labor only for the purpose of administering and enforcing the provisions of the Labor Code on conditions of employment. In other words, Rule X is merely a guide to the enforcement of the substantive law on labor. The Court, thus, Program

EXHAUSTION OF REMEDIES: (art.67,LC) -

ADMINISTRATIVE

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.

ART. 70. VOLUNTARY ORGANIZATION OF APPRENTICESHIP PROGRAM GENERAL RULE - The organization of apprenticeship program shall be primarily a voluntary undertaking of employers. EXCEPTION (Instances when organization of program is compulsory): 1. when national security or particular requirements of economic development so demand;

makes the distinction and so holds that Section 14, Rule X, Book III of the Rules is not the decisive law in a CIVIL SUIT for damages instituted by an injured person during a vehicular accident against a working student of a school and against the school itself. The present case does not deal with a labor dispute on conditions of employment between an alleged employee and an alleged employer. It invokes a claim brought by one for damages for injury caused by the patently negligent acts of a person, against both doer-employee and his employer. Hence, the APPRENTICESHIP CONCEPT

reliance on the implementing rule on labor to disregard the primary liability of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on labor cannot be used by an employer as a shield to void liability under the substantive provisions of the Civil Code. Filamer Christian Institute vs IAC [G.R. No. 75112. August 17, 1992.]

LEARNERSHIP Hiring of persons as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time. Practical training on the job not to exceed 3 months. With a commitment to employ the learner as regular employee if he desires upon completion of learnership Learner is considered as a regular employee in case of pretermination of contract after 2 mos. of training and the dismissal is without fault of the learner Semi-skilled/ industrial occupations (non-apprenticeable) Does not require Doles prior approval but merely subj. to inspection Exhaustion of adm. remedies is not required 1. no experienced workers are available 2. the employment of learners being necessary to prevent curtailment of employment opportunities, and 3. such employment will not create unfair competition in terms of labor costs nor impair working standards. ART. 75. CONTENTS OF LEARNERSHIP AGREEMENT

Practical training on the job supplemented by related theoretical instruction.

DURATION

Not less than 3 months practical training on the job but not more than 6 months No commitment to hire

ERS COMMITMENT TO HIRE

EFFECT OF PRETERMINATION

In case of pretermination of the apprenticeship agreement, the worker is not considered as a regular employee Highly-skilled or technical industries and only in industrial occupation Agreement requires Doles prior approval for its validity Exhaustion is a precondition for filing action

FOCUS OF TRAINING

DOLES PRIOR APPROVAL

EXHAUSTION OF ADM. REMEDIES IN CASE OF BREACH OF CONTRACT

CHAPTER II LEARNERS
ART. 73. LEARNERS DEFINED LEARNERS - persons hired as trainees in semiskilled 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 3 months. LEARNERSHIP AGREEMENT - refers to the employment and training contract entered into between the employer and the learner. ART. 74. WHEN LEARNERS MAY BE HIRED CONDITIONS FOR HIRING LEARNERS: - Learners may be employed when:

AGREEMENT SHALL INCLUDE : 1. The names and addresses of the employer and the learner; 2. The occupation to be learned and the duration of the training period which shall not exceed three (3) months; 3. The wage of learner which shall be at least 75 percent of the applicable minimum wage; and

4. A commitment to employ the learner, if he so desires, as a regular employee upon completion of training. - A learner who has worked during the first two months shall be deemed a regular employee if training is Terminated by the employer before the end of the stipulated period through no fault of the learner.

CHAPTER III HANDICAPPED WORKERS

ART. 78. DEFINITION HANDICAPPED WORKERS - those whose earning capacity is impaired by age or physical or mental deficiency or injury (table 2) - There must be a link between the deficiency and the work which entitles the employer to lessen the workers wage.

ART. 76. LEARNERS IN PIECEWORK - Learners in piecework/incentive rate jobs are to be paid in full for the work done during the training period.

HANDICAPPED WORKER Art. 78. LC those whose earning capacity is impaired by age or physical or mental deficiency or injury

HANDICAPPED PERSON RA 7277

(Magana Carta for Disabled Persons)

Those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being; 3. The nature of work to be performed by the handicapped worker; and 4. The duration of the employment. ART. 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

ART. 79. WHEN EMPLOYABLE Handicapped workers may be employed when:

1. their employment is necessary to prevent curtailment of employment opportunities 2. it does not create unfair competition in labor costs or impair or lower working standards. Subject to the provisions of the Code, handicapped workers may be hired as regular workers, 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 were hired.

BOOK THREE
CONDITIONS OF EMPLOYMENT TITLE I WORKING CONDITIONS AND REST PERIODS CHAPTER I HOURS OF WORK
ART. 82. COVERAGE Title I, Book III of the Labor Code dealing with hours of work, weekly rest periods, holidays, service incentive leaves and service charges, covers all employees in all establishments, whether for profit or not, except the following employees (GMOFMDPW): 1. Government employees 2. Managerial employees 3. Officers and members of the managerial staff 4. Field personnel 5. Members of the family of the employer who and dependent on him for support 6. Domestic helpers 7. Persons on the personal service of another 8. Workers paid by result REASON WHY NOT COVERED

EQUAL OPPORTUNITY FOR EMPLOYMENT ( SEC.5 RA 7277) - No disable person shall be denied access to opportunities for suitable employment. Qualified disabled employees shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Even a handicapped worker can acquire the status of a regular employee. Duration of employment - no minimum, no maximum. Dependent on agreement but it is necessary that there is a specific duration ART. 80. EMPLOYMENT AGREEMENT CONTENTS OF EMPLOYMENT AGREEMENT An employer who hires a handicapped worker shall enter into an employment agreement with the latter which shall include: 1. The names and addresses of the employer and the handicapped worker; 2. The rate of pay of the handicapped worker which shall not be less than seventy-five (75%) percent of the legal minimum wage; TYPE OF EMPLOYEE

GOVERNMENT EMPLOYEES (those employed in GOCCs not incorporated under the the Corpo.Code) MANAGERIAL EMPLOYEES

because terms and conditions of employment are governed by Civil Service Law, rules and regulations.

because they are employed by reason of their special training, experience or knowledge. The value of their work ca nnot be measured in terms of hours. FIELD because they are on their own in the field and the number of hours of actual work they render cannot be reasonably ascertained; it

NONAGRICULTURAL PERSONNEL

(Union of Filipino Employees vs Vivar. G.R. No. 79255. January 22,1992) MEMBERS OF THE FAMILY of the employer who are dependent upon him for support DOMESTIC HELPERS and persons in the personal service of another Workers who are paid BY RESULTS, such as those on piece rates or task basis

would be grossly unfair to require the employer to pay them benefits such as overtime compensation. the amounts given by the employer by way of support may far exceed the benefits to which the employee is entitled under the provisions of the Title terms and conditions of employment are governed by the provisions of Chapter III, Title III of the present Book. their compensation is based on the work accomplished and not on the time they spend in accomplishing the work.

The aforementioned employees are not entitled to: overtime pay premium pay for rest days and holidays night shift differential pay holiday pay service incentive leave service charges. - Importance of determining the existence of employer-employee relationship: Labor standards and conditions apply only if there is er-ee relationship. ELEMENTS OF EMPLOYER-EMPLOYEE RELATIONSHIP: (Enero vs NLRC. G.R. No. 120969. Jan. 22, 1998) 1. selection and engagement of the employee; 2. the payment of wages; 3. power of dismissal; and 4. control test

EMPLOYEE - A natural person who is hired, directly or indirectly, by a natural or juridical person to perform activity related to the business of the hirer who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the hire. shall not be limited to the employees of a particular employer; it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of unfair labor practice IF he has not obtained any other: 1. Substantially equivalent and 2. Regular employment

ARE SUPERVISORS MANAGERS?

- The main issue presented is whether supervisory employees, as defined in Article 212 (m), Book V of the Labor Code, should be considered as officers or members of the managerial staff under Article 82, Book III of the same Code, and hence are not entitled to overtime rest day and holiday pay. - Article 212 (m) should be made to apply only to the provisions on Labor Relations, while the right of said employees to the questioned benefits should be considered in the light of the meaning of a managerial employee and of the officers or members of the managerial staff, as contemplated under Article 82 of the Code and Section 2, Rule I Book III of the implementing rules. In other words, for purposes of forming and joining unions, certification elections, collective bargaining, and so forth, the union members are supervisory employees. In terms of working conditions and rest periods and entitlement to the questioned benefits, however, they are officers or members of the managerial staff, hence they are not entitled thereto. National Sugar Refinaries vs NLRC. G.R. No. 101761. March 24, 1993.

CONTROL TEST refers to the employers power to control or right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. This last element is the most important index of the existence of the relationship.

MANAGERIAL EMPLOYEES LABOR STANDARDS Article 82

Used only for purposes of Book III

MANAGERIAL EMPLOYEES LABOR RELATIONS Article 212 (m)

Used only for purposes of Book V

those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other members of the managerial staff Supervisors are members of the managerial staff GOVERNMENT EMPLOYEES - refers only to employees of government agencies, instrumentalities or political subdivisions and of government corporations that are NOT incorporated under the Corporation Code, i.e., those which have original charters. WORKERS PAID ON PIECE-RATE BASIS those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. WORKERS PAID BY RESULT - those who are paid based on the work completed and not on the time spent in working. FIELD PERSONNEL - non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer, and whose actual hours of work in the field cannot be determined with reasonable certainty. DOMESTIC HELPERS/ PERSONS RENDERING PERSONAL SERVICES - those who : 1. perform services in the employers home which are usually necessary and desirable for the maintenance or enjoyment thereof, or

one who is vested with powers or prerogatives to lay down and execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. does not include supervisors 2. minister to the personal comfort, convenience or safety of the employer, as well as the members of the employers household.

The existence of employment relationship is determined by law and not by contract.

WHEN NOT DEEMED A DOMESTIC HELPER:

1. House personnel hired by a ranking

company official paid for by the company itself to maintain a staff house provided for the official are not domestic helpers but regular employees of the company. (Cadiz vs. Phil. Sinter Corp. NLRC Case No.71729, July 3,1979) 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 wages and benefits flowing from such status. (Villa vs Zaragosa & Assoc. OP Decision No,0183, Aug. 5,1977)

2.

Whether or not an employer-employee relationship exists between the parties is a question of fact. The findings of the NLRC are accorded not only respect but finality if supported by substantial evidence

MERCIDAR FISHING CORP. VS NLRC [G.R. No. 112574. October 8, 1998.] Fishermen in a fishing voyage are not field personnel. During the entire course of their fishing voyage, fishermen employed by petitioner have no choice but to remain on board its vessel. Although they perform non-agricultural work away from petitioner's business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel's patron or master.

UNION OF FILIPINO EMPLOYEES VS VIVAR [G.R. No. 79256. January 20, 1992.] Outside salesmen are field personnel.

"The reasons for excluding an outside salesman are fairly apparent. Such a salesman, to a greater extent, works individually. There are no restrictions respecting the time he shall work and he can earn as much or as little, within the range of his ability, as his ambition dictates. In lieu of overtime he ordinarily receives commissions as extra compensation. He works away from his employer's place of business, is not subject to the personal supervision of his employer, and his employer has no way of knowing the number of hours he works per day."

Note: Under Rule 25.1 of the Rules Implementing Republic Act No. 8850, otherwise known as the Philippine Fisheries Code of 1998, fishworkers on board any fishing vessel engaged in fishing operations shall be classified as field personnel, as defined under Section 82 of the Philippine Labor Code, as amended, and shall not be subject to the regulations on normal working hours and overtime.

MANAGEMENT PREROGATIVE - Except as otherwise 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 of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers. (SMB vs Ople)

PURPOSES: to safeguard the health and welfare of the laborer and to minimize unemployment by utilizing different shifts NOTES: - It is not prohibited to have normal hours of work of less than 8hours/day. What the law regulates is work hours exceeding eight. 8-hour labor law prescribes the maximum but not the minimum. Therefore, part-time work, or a days work of less than 8 hours is not prohibited. NORMAL HOURS OF WORK OF HEALTH PERSONNEL For health personnel in cities and municipalities with a population of at least 1M or in hospitals and clinics with a bed capacity of at least 100: regular office hours shall be 8 hours a day for five days a week, or 40 hours a week, exclusive of time for meals. in case of exigencies, they may work for 6 days or for 48 hours, but they shall be entitled to an additional compensation of at least 30% of their regular wage for work performed on the 6th day.

recognizes the right of the employer to advance its interest to prescribe standards of work and impose reasonable quotas or work assignments, and failure on the part of the employees to meet the requirement, imposed in good faith, constitutes a just cause for his dismissal. New owner/management group has no obligation to re-employ workers who freely and voluntarily accepted their separation pay and other benefits. A change of ownership in a business concern is not proscribed by law.

ART. 83. NORMAL HOURS OF WORK - The normal hours of work of an employee shall not exceed 8 hours a day Health personnel in government service are excluded from the coverage of Arts.82-96. Their work hours, night shift differential pay, and other employment benefits are specified in RA 7305.

It is possible for an employee to work for 2 calendar days.

e.g. If Xs work schedule is from 5:00 pm of Monday up to 10 a.m of Tuesday, his work day covers 2 calendar days.

WORK DAY
24 hr. period commencing from the time an employee regularly starts to work -

CALENDAR DAY
24 hr. period commencing ending at 11:59 pm at 12 midnight and

ART. 84. HOURS WORKED HOURS WORKED SHALL INCLUDE: 1. all time during which an employee is required to be on duty or to be at a prescribed workplace; 2. all time during which an employee is suffered or permitted to work; and 3. rest periods of short duration during working hours 4. meal period of less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time PRINCIPLES IN DETERMINING HOURS WORKED: (Rule 1, Book II, Implementing Rules) 1. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hour are spent in productive labor or involve physical or mental exertion.

2. An employee need not leave the premises of the

workplace in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his workplace, to go elsewhere whether within or outside the premises of his workplace.

3. If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked if the work is with the knowledge of his employer or immediate supervisor. 4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminence of the resumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employees own interest.

 RULES ON HOURS OF WORK A. WAITING TIME - considered as hours worked if waiting: 1. is an integral part of his work; or 2. the employee is required or engaged by the employer to wait

3. when employee is required to remain on call

in the employers premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose.

ENGAGED TO WAIT
- when waiting is an integral part of the job, the time spent waiting is compensable
e.g. X works as a driver and his task is to drive a truck to Botolan to load gravel and sand. While gravel is being loaded, he engaged himself in a karaoke session and then slept. Is the time spent singing & sleeping compensable? -Yes. Because he is engaged to wait for waiting is an integral part of the job. e.g. firemen playing cards in the fire station

WAITING TO BE ENGAGED
- idle time is not working time; it is not compensable

e.g. X works as a Victory Liner bus driver. His route is from Manila to Zambales, leaving at 6am & arriving at 12 noon. He is completely relieved from all duty until 6pm, when he again goes on duty for the return trip to manila. Is his idle time working time? -No. Because during his idle time, he is specifically relieved from all duty. He is merely waiting to be enegaged.

WORKING WHILE ON CALL - when employee is required to remain on call in the employers premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose. - However, if he is not required to leave work at his home or with company officials where he may be reached, he is not considered working while on call. B. PRELIMINARY& POSTLIMINARY ACTIVITIES - compensable when: 1. controlled or required by employer and 2. are pursued necessarily and primarily for the employers benefit

TRAVEL FROM HOME TO WORK

Normal travel from home to work which is not work time

TRAVEL THAT IS ALL IN A DAYS WORK

the time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday; Compensable, must be counted as hours worked

TRAVEL AWAY FROM HOME

travel that keeps an employee away from home overnight;

Generally: -Not Compensable Exception: -where the worker is made to work on an emergency call and travel is necessary in proceeding to the workplace, the time spent on travel is compensable

Considered as work time when it cuts across an employees workday (because it substitutes for the hours that the employee should have been in the office.)

N.B. In Travel from home to work, if same is via shuttle service sponsored by the company, travel time is not compensable because service is for the benefit of the employee. In travel away from home, if instruction was given by the employer to the employee to go to a warehouse and to go back to the main office afterwards, the time traveled is considered as hours worked; however, if instead of going back to the office, the employee went home, only the travel to the warehouse is considered as hours worked. D. POWER INTERRUPTIONS -compensable when:

ART. 85. MEAL PERIODS MEAL PERIODS 1. should not be less than sixty (60) minutes, and is time-off/non-compensable 2. under specified cases, may be less than sixty (60) minutes, but should not be less than twenty (20) minutes and must be with full pay. 3. if less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time NOTE: the employee must be completely relieved from duty. Otherwise, it is compensable as hours worked. - Mealtime is not compensable EXCEPT in the ff. cases: 1. where the lunch period or meal time is predominantly spent for the employers benefit or 2. where it is less than 60 minutes. SHORTENED MEAL BREAK UPON EMPLOYEES REQUEST Employees may request that their meal period be shortened so that they can leave work earlier than the previously established schedule.

a. 1st 20 minutes is compensable;

b. succeeding minutes not compensable - but if despite the lapse of the 1st 20 minutes the employees are required to stay in their workplaces, such time is compensable. E. SEMESTRAL BREAK OF TEACHERS - compensable hours worked for it is a form of interruption beyond their control F. LECTURES, MEETINGS, TRAININGS, PROGRAMS not counted as working time if all the following conditions are met: a. attendance is outside of the employees regular working hours; b. attendance is in fact voluntary; and c. employee does not perform any productive work during such attendance. G. WORK HOURS OF SEAMEN - presence on board for more than 8 hours a day is required by the nature of their service

governed by the same rules as land based employees. Thus, they must show sufficient proof that said work is actually performed. Conditions to be satisfied before a seaman be entitled to overtime pay: 1. Actual rendition of overtime work 2. Submission of sufficient proof that said work was actually performed

REQUISITES: writing to a shortened meal period and are willing to waive the overtime pay for such shortened meal The employees voluntarily agree in period; 2. There will be no diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period; 3. The work of the employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks; 4. The value of benefits is equal to the compensation due them for the shortened meal period; 5. Overtime pay will become due and demandable after the new time schedule; and 6. The arrangement is of temporary duration. ( BWC-WHSD Opinion N0.197) 1.

ART. 86. NIGHT SHIFT DIFFERENTIAL ( NSD ) CONCEPT OF NSD

- additional compensation of not less than ten percent (10%) of an employees regular wage for every hour of work done between 10:00 PM and 6:00 AM, whether or not such period is part of the workers regular shift.

NSD Pay

4hrs x P 10

Total wage earned

40 -----------P840

If work done between 10 PM and 6 AM is overtime work, then the 10% night shift differential should be based on the overtime rate.

SAMPLE ILLUSTRATION NO. 2 : Daily Wage : P800 Work Schedule: 8:00am 5:00 pm OT : 5:00pm 12:00 mn

Step 1: get hourly wage rate

- Daily Wage divided by number of hours worked

NOT WAIVABLE Additional compensation for nighttime work is founded on PUBLIC POLICY. (Mercury Drug vs Dayao. G.R. L-30452. Sept. 30,1982) FORMULA %01([ x regular wage per hour) x no. of hours of work performed between 10pm-6am] SAMPLE ILLUSTRATION NO. 1 : Daily Wage : Work Schedule: Step 1: get hourly wage rate
- Daily Wage divided by number of hours worked

e.g. P800 / 8 hrs.

= P100

Step 2: compute wage between 8:00pm -5:00 am e.g. 8hrs x P100 = P800

Step 3: compute OT Premium Pay between 5:00pm - 12mn

- [(25% x Wage per hour) + Wage per hour] x no.of OT hours

P800 6:00pm 2:00 am

e.g. (25% x P100)+100 = P125 x no.of OT hours (5pm-12mn) = 7hrs

-----------P875 Step 4: compute NSD

- (10% of OTwage per hour x no. of hours of work performed between 10pm-6am)

e.g. P800 / 8 hrs.

= P100

Step 2: compute wage between 6:00pm -2:00 am e.g. 8hrs x P100 = P800 Step 3: compute NSD
- (10% of regular wage per hour x no. of hours of work performed between 10pm-6am)

e.g. (10% x P125) x 2 hours COMPUTATION: 8am-5pm 8hrs x P100.00 5pm-12mn 7hrs x P125.00 NSD Pay 2hrs x P 12.50 Total wage earned

P24

e.g. (10% x P100) x 4 hours COMPUTATION: 6am-10pm 4hrs x P100 10pm-2am 4hrs x P100

=P40 P400 400

P800 875 24 -----------P1699

NSD
Payment for work done during the night (10:00pm-6am) 10 % of basic wage
ART. 87. OVERTIME WORK OVERTIME PAY additional compensation for work performed beyond eight (8) hours within the workers 24-hour workday regardless whether the work covers 2 calendar days.

OVERTIME PAY
Payment for the excess of the regular 8-hr work 25% or 30% of basic wage

NOTE: The receipt of overtime pay will not preclude payment of night shift differential pay.

- The minimum normal working hours fixed by law need not be continuous to constitute the legal working day, so long as it is within the work day.
RATIONALE: - The employee is given OT pay because he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. WAIVER OF OVERTIME PAY: - As a rule, no waiver of overtime pay whether express or implied. Any contrary stipulation is null and void, as it is intended to benefit laborers and employees. Exceptions:

PREMIUM PAY
- is additional compensation for work rendered by the employee on days when normally he should not be working such as special holidays and weekly rest days. WORK DAY - the 24-hour period which commences from the time the employee regularly starts to work; e.g., if the worker starts to work 8 am today, the workday is from 8am today up to 8 am tomorrow.

1. when the waiver is made in consideration of

benefits and privileges which may be more than what will accrue to them in overtime pay (Meralco Workers Union vs Meralco.G.R.No.L-11876. May 29,1959) 2. compressed workweek proposed by employees - allowable only under the following CONDITIONS: 1. It is voluntary on the part of the worker; 2. There will be no diminution of the weekly or monthly take-home pay and fringe benefits of the employees; 3. The value of the benefits that will accrue to the employees under the proposed schedule is more than or at least commensurate with the one-hour OT pay that is due them during weekdays based on the employees quantification; 4. The one-hour OT pay will become due and payable if they are made or permitted to work on a day not scheduled for work on the compressed workweek; 5. The work does not involve strenuous physical exertion and employees must have adequate rest periods; and 6. The arrangement is of temporary duration. FACTUAL & LEGAL BASIS FOR CLAIM SUMMARY OF RATES :

- As a Rule: Express instruction from the employer to the employee to render overtime work is not required for the employee to be entitled to overtime pay; it is sufficient that the employee is permitted or suffered to work. - HOWEVER, written authority after office hours during rest days and holidays are required for entitlement to compensation. (Global Incorporated vs Atienza. 143 scra 69 [1986] )
N.B. Meal periods during overtime work is not given to workers performing overtime for the reason that OT work is usually for a short period ranging from one to three hours and to deduct from the same one full hour as meal period would reduce to nothing the employees OT work. BASIS OF OT: - Regular Basic Wage : includes cash wage only, without any deduction on account of facilities provided by the employer (Art.90,LC) RULES: - Work performed beyond 8 hours a day must be paid an additional compensation equivalent to the employees regular wage plus at least 25% thereof.

- Work performed beyond 8 hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate for the first 8 hours on a holiday or rest day plus 30% thereof

OVERTIME DURING
Regular workdays (Normal Premium rate) Legal/regular holidays

RATES
Regular basic wage + 25% of regular basic wage Holiday wage rate + 30% of holiday rate (200%)

Rest days or special holidays

Rest day or special holiday wage rate + 30% of rest day or special holiday wage rate (130%) a special Rest day & special holiday wage rate + 30% of rest day & special holiday wage rate (150%)

Scheduled rest day which is also holiday

Double holidays

Double holiday wage rate + 60% of Double holiday wage rate (400%)

ILLUSTRATION : REGULAR WORKDAYS Regular basic wage + 25% of regular basic wage

- Daily Basic Wage divided by number of hours worked

e.g. P800 / 8 hrs.

= P100

Step 2: compute wage between 8:00pm -5:00 pm e.g. 8hrs x P100 = P800 Step 3: compute OT Premium Pay between 5:00 pm 10pm
- [(25% x Wage per hour) + Wage per hour] x no.of OT hours

Daily Wage : Work Schedule:

P 800 8:00am 5:00 pm

(inclusive of meal break) 1 hour

5:00pm 10:00 pm
Step 1: get hourly wage rate

e.g. (25% x P100)+100 = P125 x no.of OT hours (5pm-10pm) = 5hrs

-----------P625 COMPUTATION: 8am-5pm 8hrs x P100.00 5pm-10pm 5hrs x P125.00 Total Take Home Pay P800 625 -----------P1,425

- [(30% x HWage per hour) + HWage per hour] x no.of OT hours

e.g. (30 % x P130)+130 = P 169 x no.of OT hours (5pm-10pm) = 5hrs

-----------P 845 COMPUTATION: 8am-5pm 8hrs x P130.00 5pm-10pm 5hrs x P169.00 Total Take Home Pay P 1040 845 -----------P1,885

LEGAL OR REGULAR HOLIDAYS Holiday wage rate + 30% of holiday rate (200%) Daily Wage : Work Schedule: OT : P 800 8:00am 5:00 pm (inclusive of 1 hour meal break) June 12 (Independence day) 5:00pm 10:00 pm

SCHEDULED REST DAY WHICH IS ALSO A SPECIAL HOLIDAY Rest day & special holiday wage rate + 30% of rest day & special holiday wage rate (150%) Daily Wage : Work Schedule: OT P 800 8:00am 5:00 pm (inclusive of 1 hour meal break)
June 6 ( Araw ng Caloocan special holiday & employees scheduled rest day) 5:00pm 10:00 pm

Step 1: get hourly wage rate

- Daily Basic Wage divided by number of hours worked multiplied by regular holiday wage rate

e.g. (P800 / 8 hrs.) x 200%

= P200

Step 2: compute wage between 8:00pm -5:00 pm using holiday wage rate e.g. 8hrs x P200 = P1600 Step 3: compute OT Premium Pay between 5:00 pm 10pm
- [(30% x Wage per hour) + Wage per hour] x no.of OT hours

Step 1: get hourly wage rate

- Daily Basic Wage divided by number of hours worked multiplied by rest day & special holiday wage rate

e.g. (P800 / 8 hrs) x 150%

= P150

e.g. (30 % x P200)+200 = P 260 x no.of OT hours (5pm-10pm) = 5hrs

Step 2: compute wage between 8:00pm -5:00 pm using special holiday wage rate e.g. 8hrs x P150 = P1200 Step 3: compute OT Premium Pay between 5:00 pm 10pm
- [(30% x HWage per hour) + HWage per hour] x no.of OT hours

-----------P1300 COMPUTATION: 8am-5pm 8hrs x P200.00 5pm-10pm 5hrs x P260.00 Total Take Home Pay P 1600 1300 -----------P2,900

e.g. (30 % x P150)+150 = P 195 x no.of OT hours (5pm-10pm) = 5hrs

-----------P 975 COMPUTATION: 8am-5pm 8hrs x P150.00 5pm-10pm 5hrs x P195.00 Total Take Home Pay P 1200 975 -----------P2,175

REST DAYS OR SPECIAL HOLIDAYS Rest day or special holiday wage rate + 30% of rest day or special holiday wage rate (130%) Daily Wage : Work Schedule: OT : P 800 8:00am 5:00 pm (inclusive of 1 hour meal break)
June 24 ( Araw ng Makat - special holiday) 5:00pm 10:00 pm

DOUBLE HOLIDAY Double holiday wage rate + 30% of Double holiday wage rate (300%) Daily Wage : Work Schedule: OT : P 800
8:00am 5:00 pm (inclusive of 1 hour meal break) April 9 (Araw ng Kagitingan & at the same time Good Friday) 5:00pm 10:00 pm

Step 1: get hourly wage rate

- Daily Basic Wage divided by number of hours worked multiplied by special holiday wage rate

e.g. (P800 / 8 hrs) x 130%

= P130

Step 2: compute wage between 8:00pm -5:00 pm using special holiday wage rate e.g. 8hrs x P130 = P1040 Step 3: compute OT Premium Pay between 5:00 pm 10pm

Step 1: get hourly wage rate

- Daily Basic Wage divided by number of hours worked multiplied by rest day & special holiday wage rate

e.g. (P800 / 8 hrs) x 300%

= P300

Step 2: compute wage between 8:00pm -5:00 pm using special holiday wage rate

e.g. 8hrs x P300

= P2400

Step 3: compute OT Premium Pay between 5:00 pm 10pm

- [(30% x HWage per hour) + HWage per hour] x no.of OT hours

e.g. (30 % x P300)+300 = P 390 x no.of OT hours (5pm-10pm) = 5hrs

-----------P 1950 COMPUTATION: 8am-5pm 8hrs x P300.00 5pm-10pm 5hrs x P390.00 Total Take Home Pay P 2400 1950 -----------P4,350

5. Where the completion or continuation of the work started before the eight hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; and 6. When it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. in any of the following cases, the employer may require the employee to render OT work provided that the OT work is paid the additional compensation required. ART. 90. COMPUTATION OF ADDITIONAL COMPENSATION

ART. 88. UNDERTIME NOT OFFSET BY OVERTIME RULE : Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation. RATIONALE An employees regular pay rate is lower than the overtime rate. Offsetting the undertime hours against the overtime hours would result in undue deprivation of the employees extra pay for overtime work.

- For purposes of computing overtime and other additional remunerations

- REGULAR WAGE shall include cash wage only, without deduction on account of facilities provided by the employer
CHAPTER II WEEKLY REST PERIOD
ART. 91. RIGHT TO A WEEKLY REST DAY CONCEPT OF REST DAY - Employees should be provided a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days. - Weekly Rest period is within the purview of employers prerogative The employer shall schedule the weekly rest day of his employees subject to collective bargaining agreement. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. But when such preference will prejudice the operations of the undertaking and the employer cannot normally result to other remedial measures, the employer may so schedule the weekly rest day that meets the employees choice for at least two (2) days a month. ART. 92. WHEN EMPLOYER MAY REQUIRE WORK ON A REST DAY GENERAL RULE: It shall be the duty of every employer, whether operating for profit or not to provide a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days to his employees.

ART. 89. EMERGENCY OVERTIME WORK GENERAL RULE : - Generally, employers can not compel his workers to render overtime work against his will. EXCEPTION: Any employee may be required by the employer to perform overtime work in any of the following cases: 1. When the country is at war or when any national or local emergency has been declared by the National Assembly or the Chief Executive; 2. 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; 3. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; 4. When work is necessary to prevent loss or damage to perishable goods;

EXCEPTION: (UPANAC) - The employer may require his employees to work on any day even on a rest day:

1.

In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; 2. To prevent loss or damage to perishable goods;

ART. 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK - this article does not prohibit a stipulation in the CBA for higher benefits SPECIAL HOLIDAYS - List of Special Holidays National; 1.All Saints Day -November 1 2.Last Day of the Year-December 31 3.And all other days declared by law Local: Those declared by law or ordinance (e.g. Manila Day for Manila only) When entitled to premium pay: If worked = regular wage plus 30% premium pay If not worked = no compensation/no premium

3.

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 and property, or imminent danger to public safety; 4. Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and 5. In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; 6. Under other circumstances analogous to the foregoing as determined by the Secretary of Labor. REGULAR HOLIDAY compensable even if unworked subject to certain conditions limited to the 10 enumerated by the Labor Code rate is twice the regular rate if worked

SPECIAL HOLIDAY Not compensable if unworked Not exclusive since a law or ordinance may provide for other special holidays Rate is 130% of the regular wage if worked

ADDITIONAL COMPENSATION FOR WORK ON A REST DAY, SUNDAY OR HOLIDAY: DAY Work on a scheduled rest day No regular workdays and rest days Work on Special Holidays Holiday Work falls on Scheduled Rest Day RATE OF ADDITIONAL COMPENSATION 30% of regular wage 30% of regular wage for work on Sundays & Holidays 30% of regular wage 50% of regular wage

CHAPTER III HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

ART. 94. RIGHT TO HOLIDAY PAY HOLIDAY PAY Also termed as legal holiday A days pay given by law to an employee even if he does not work on a regular holiday. It is limited to the ten (10) regular holidays listed by lawthe employee should not have been absent without pay on the working day preceding the regular holiday PREMIUM PAY additional compensation for work performed on a scheduled rest day or holiday

REGULAR HOLIDAYS [NM-GALIN-CREB]: 1. New Years Day - January 1 2. Maundy Thursday - Movable date 3. Good Friday - Movable date 4. Araw ng Kagitingan - April 9 5. Labor Day - May 1 6. Independence Day - June 12 7. National Heroes Day - Last Sunday of August 8. Bonifacio Day - November 30 9. Christmas Day - December 25 10. Rizal Day - December 30 11. Eidul Fitr movable date (RA 9177. Nov.13,2002) N.B.There must be no distinction between Muslims and non-Muslims as regards payment of benefits for Muslim Holidays; wages and other emoluments are laid down by law and not based on faith or religion. (SMC v. CA) RULE ON COMPENSABILITY - compensable whether worked or unworked subject to certain conditions

- Legal holiday falling on a Sunday does not create an additional workday nor create a legal obligation for the employer to pay extra, aside from the usual holiday pay to its monthly paid employees. DOUBLE HOLIDAY PAY 1. 200% of the basic wage - entitled even if said holiday is unworked - to give employee only 100% would reduce the number of holidays under DO No. 3. 2. 300% if he worked on 2 regular holidays falling on the same day, - e.g., April 9 and Good Friday ILLUSTRATION :

A Single holiday rule: - provided that the employee 1. worked 2. was on leave with pay or 3. was on authorized absence on the day prior to the regular holiday. SUCCESSIVE REGULAR HOLIDAY - If there are two successive regular holidays, e.g., Maundy Thursday and Good Friday, the employee must be present the day before the scheduled regular holiday to be entitled to compensation to both; otherwise, he must work on the first holiday to be entitled to holiday pay on the second regular holiday. (Sec.10, Rule IV, Book III, Implementing Rules) (see table below) FRIDAY REGULAR HOLIDAY REGULAR HOLIDAY REGULAR HOLIDAY ENTITLED TO BE PAID ? YES YES NO YES YES NO ENTITLED PAID? YES BOTH YES BOTH TO BE

WEDNESDAY Present Absent with pay Absent w/out pay Present Absent with pay Absent w/out pay B. Successive holiday rule: WEDNESDAY Present Absent with pay

THURSDAY REST DAY REST DAY REST DAY SPECIAL DAY SPECIAL DAY SPECIAL DAY

THURSDAY REGULAR HOLIDAY REGULAR HOLIDAY

FRIDAY REGULAR HOLIDAY REGULAR HOLIDAY REGULAR HOLIDAY

Absent w/out pay

REGULAR HOLIDAY

NO BOTH

Absent w/out pay

Worked

ART. 95. RIGHT TO SERVICE INCENTIVE LEAVE CONCEPT OF SERVICE INCENTIVE LEAVE (SIL) - five (5) days leave with pay for every employee who has rendered at least one (1) year of service. SIL DOES NOT APPLY TO THOSE WHO ARE: (E4) already enjoying the said benefits; already enjoying vacation leave with pay for at least 5 days; employed in establishments regularly employing less than 10 employees; and employed in establishments exempted from granting this benefit by the Secretary of Labor.

YES but only to the holiday pay on Friday ONE (1) YEAR OF SERVICE - service within 12 months, whether continuous or broken, reckoned from the date the employee started working including authorized absences and paid regular holidays unless the number of working days in the establishment, as a matter of practice or policy or as provided in the employment contract, is less than 12 months - SIL is commutable, i.e., convertible to cash; the cash equivalent is aimed primarily at encouraging workers to work continuously and with dedication to the company. Part-time workers are entitled to the full benefit of the yearly 5-days SIL. The reason is that the provisions of Art.95 speak of the number of months in a year for entitlement to said benefit. VACATION AND SICK LEAVE - Not statutorily required; matter of management discretion or a product of collective bargaining agreement -

Benefits are non-cumulative and noncommutative; must be enjoyed by the employee SIL

within 1 year otherwise they are considered waived or forfeited. Exception is when the labor contract or the established practice of the employer provides otherwise. VACATION/ SICK LEAVE
Voluntary - grant results from: employers discretionary policy or from CBA Intended to afford a laborer a chance to get a much needed rest to replenish his worn out energies and acquire new vitality to enable him to meet him to efficiently perform his duties and not merely to give him additional salary Must be demanded in its opportune time, otherwise, silence would equate to waiver same being a mere concession or act act of grace of employer Not commutable

COMPULSORINESS

Mandatory -legally required under Art.95,LC Intended to alleviate the economic condition of the workers for it acts as replacement for regular income that would not be earned during such instance

PURPOSE

WAIVER

Can not be waived

COMMUTABI-LITY

Commutable

MATERNITY AND PATERNITY LEAVE (see discussion in Art. 133 ) ART. 96. SERVICE CHARGES CONCEPT. - All service charges collected by hotels, restaurants and similar establishment shall be distributed: 1. 85% for all covered employees to be equally distributed among them 2. 15% for management - Share of the employees shall be equally distributed among them. The shares referred to herein shall be distributed and paid to employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. The 15% management share shall be for disposition by management to answer for losses and breakages and distribution to employees receiving more than P2,000.00 a month at the discretion of the management in the latter case. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges. COVERAGE - Apply only to hotels, restaurants and similar establishment collecting service charges POOLED TIPS

- Monitored, accounted for, and distributed in the same manner as service charges

TITLE II WAGES

CHAPTER I
PRELIMINARY MATTERS
ART. 97. DEFINITION AGRICULTURE includes farming in all its branches, and, among other things, includes the cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. WAGE - 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 or 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 Sec. of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. FAIR AND REASONABLE VALUE - shall not include any profit to the employer or to any person affiliated with the employer.

FAIR DAYS WAGE FOR A FAIR DAYS LABOR - 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
SALARY - denotes higher degree of employment -subject to execution (Rosario Gaa vs. CA. G.R. No.L-44169. Dec.3,1985)

WAGE - compensation for manual labor - Not subject to execution except for debts incurred for food shelter, clothing and medical attendance-

WHAT DOES WAGE OR SALARY INCLUDE? 1. Commission 2. Facilities 3. Commodities/Supplements THEY ARE DEEMED INCLUDED IN THE SALARY IF THE FF CONDITIONS CONCUR: - The grant thereof is: Unconditional Consistent and deliberate over a period of time Customarily given such that the employee expects to receive the same
(Mabeza vs NLRC G.R.No.118506.Apr.18,1997)

Note. Salary does not include allowances nor gratuities. COMMISSION direct remunerations received by an agent, salesman, executor, broker, or trustee calculated as a percentage on the amount of his transactions or on the profit to the principal FACILITIES shall include all 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 SUPPLEMENTS
- constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings wages - independent of the wage - not wage deductible

FACILITIES
- items of expense necessary for the laborers and his familys existence and subsistence - part of the wage - deductible from the wage

LEGAL REQUIREMENTS BEFORE FACILITIES CAN BE DEDUCTED FROM THE EMPLOYEES WAGES: 1.Proof must be shown that such facilities are customarily furnished by the trade; 2.The provision of deductible facilities must be voluntarily accepted in writing by the employee; and 3.The facilities must be charged at fair and reasonable value. GRATUITY something given freely or without recompense to reward employees who have rendered satisfactory and efficient service to the company.

ART 99. REGIONAL MINIMUM WAGES minimum wage rates for agricultural and nonagricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. MINIMUM WAGE - lowest wage rate fixed by law that an employer can pay his employees.

The employer cannot exempt himself from liability to pay minimum wages because of poor financial condition of the company; the payment of minimum wages is not dependent on the employers ability to pay. (De Racho v. Municipality of Iligan, GR NO. L-23542)

CHAPTER II MINIMUM WAGE RATES

ART. 100. PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS THE NON-DIMINUTION RULE Nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code. benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten.

ART. 98. APPLICATION OF TITLE Title on Wages apply to ALL EMPLOYEES except the following: 1. farm tenancy or leasehold 2. household or domestic helpers 3. homeworkers engaged in needle-work 4. workers employed in any establishment duly registered with the National Cottage Industry 5. workers in duly registered cooperatives

The rule is applicable if it is shown that the grant of the benefit is: 1. based on an express policy, or 2. has ripened into practice over a long period of time, and the practice is consistent and deliberate, and it is not due to an error in the construction/application of a doubtful or difficult question of law. But even in cases of error, it should be shown that the correction is being done soon after the discovery of the error.

Productivity Incentives Act of 1990 (RA 6971, November 22, 1990) kind of bonus that comes from productivity gain aims to institute productivity at company level and the sharing of productivity gain between employers and employees nature of salary bonus is proportionate to increases in current productivity

ART. 101. PAYMENT BY RESULTS CATEGORIES OF PIECE RATE WORKERS (as to presence of control):

BONUS - A supplement or employment benefit given under certain conditions, such as success of the business or greater production or output. As a rule, it is an amount granted voluntarily to an employee for his industry and loyalty which contributed to the success and realization of profits of the employers business. Therefore, from a legal point of view, it is not a demandable and enforceable obligation unless it was promised to be given without any conditions imposed for its payment in which case it is deemed part of the wage. 13TH MONTH PAY (OR ITS EQUIVALENT) (see annex for specific discussion ) - additional income based on wage required by P.D. 851 which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year. - may be given anytime but not later than Dec. 24 COVERAGE: - All rank-and-file employees regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided, that they have worked for at least one (1) month during the calendar year. FORMS: 1. Christmas bonus 2. midyear bonus 3. profit sharing payments; and 4. other cash bonuses amounting to not less than 1/12 of its basic salary.

1. those who work directly under the supervision of

their employer (usually termed as piece rate worker) 2. those who work away from the employers work premises and are not directly supervised by the employer (usually termed as pakiaw or takay) CATEGORIES OF PIECE RATE (as to rate of payment) 1. those who are paid piece rates as prescribed in Piece Rate Orders by the DOLE 2. those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE WORKERS PAID ON PIECE-RATE BASIS those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. BENEFITS PAYABLE TO PIECE-RATE WORKERS WHOSE WORK IS DIRECTLY SUPERVISED BY THE EMPLOYER: 1. Applicable statutory minimum daily rate 2. Yearly service incentive leave of five days with pay 3. Night shift differential pay 4. Holiday pay 5. Meal and rest periods 6. Overtime pay (conditional) 7. Premium pay (conditional) 8. 13th month pay 9. Other benefits granted by law, individual or collective bargaining agreements or company policy or practice.

It must always be in the form of legal tender Difference of opinion on how to compute the 13th month pay does not justify a strike. Free rice, electricity cash and stock dividends, COLA are NOT proper substitutes for the 13th month pay.

CHAPTER III PAYMENT OF WAGES

ART. 102. FORMS OF PAYMENT EMPLOYER CANNOT PAY HIS WORKERS BY MEANS OF: 1. 2. 3. 4. 5. 6. 7. promissory notes; vouchers; coupons; tokens; tickets; chits; or any object other than legal tender

14TH MONTH PAY - a misnomer because it is basically a bonus and gratuitous in character - granting thereof is a management prerogative which can not be forced upon the employer PRODUCTIVITY INCENTIVES

GENERAL RULE: - payment by legal tender EXCEPTIONS: - payment by check or money order may be allowed if the same is: 1. customary on the date of effectivity of the LC; 2. necessary because of special circumstances as determined by the Sec. of Labor; or 3. stipulated in the CBA 4. or where the ff conditions are met:
a) b) there is a bank or other facility for encashment within a radius of 1 kilometer from the workplace; the employer, or any of his agent or representatives, does not receive any pecuniary benefit directly or indirectly from the arrangement; the employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours; and the payment by check is with the written consent of the employees concerned if there is no CBA authorizing the payment of wages by bank checks.

2. When the employer provides for free transportation to the employees back and forth; and 3. Under any other analogous circumstances ABSOLUTE PROHIBITION: - 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. PAYMENT THRU BANKS: REQUISITES: 1. There must be written permission of the majority of the employees concerned in an establishment; 2. The establishment must have 25 or more employees; and 3. The establishment must be located within one kilometer radius to the bank payment through an ATM is allowed ART.105. DIRECT PAYMENT OF WAGES

c)

d)

ART. 103. TIME OF PAYMENT WHEN TO PAY: - at least once every two weeks; or - twice a month at intervals not exceeding 16 days. in case of force majeure or other circumstances beyond the employers control, payment must be made immediately after such occurrence has ceased.

GENERAL RULE: - wages shall be paid directly to the workers to whom they are due EXCEPTIONS: 1. payment through another person - in case of force majeure rendering such payment impossible provided said person is under written authority given by the worker for the purpose; - when authorized under existing law, including payments for insurance premiums of the employee and union dues where the right to check-off has been recognized by the employer in accordance with a CBA or authorized in writing by the individual employees concerned 2. payment through heirs of worker - in case where the worker has died employer may wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. Procedure: 2.1 claimants shall execute an affidavit attesting their relationship to the deceased and the fact that they are his heirs, to the exclusion of all others; 2.2 in case of a minor heir, affidavit shall be executed on his behalf by his natural guardian or next of kin; 2.3 affidavit shall be presented to the employer who shall make payment through the Secretary of Labor or his representative; 2.4 the representative shall act as referee in dividing the amount paid among the heirs; 2.5 payment of wages under this article shall absolve the employer of any

If engaged to perform a task which cannot

be completed in 2 weeks and in the absence of CBA: a. payment shall be made at intervals not exceeding 16 days, in proportion to the amount of work completed; b. that final settlement is made upon completion of the work. ART. 104. PLACE OF PAYMENT WHERE TO PAY: - at or near the place of undertaking EXCEPTIONS (Payment in a place other than workplace): 1. When payment cannot be effected at or near the place of work by reason of deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fire flood or other calamity rendering payment thereat impossible;

further liability with respect to the amount paid. 3. payment through member of workers family SUMMARY OF RULES ON PAYMENT OF WAGES:
WHAT MUST BE PAID WHEN WHERE HOW

- Where the employer is authorized in writing by the employee to pay his wages to a member of his family.

Legal tender; promissory notes, vouchers, coupons, tokens, tickets, chits, or any other object other than legal tender is prohibited. Once every two weeks or twice a month at intervals not exceeding 16 days. At or near the place of undertaking Directly to the employee entitled thereto

ART. 106. SUBCONTRACTOR

CONTRACTOR

OR

TWO TYPES OF CONTRACTORS UNDER THE LAW: a) Labor-only contractor b) Job contractor LABOR ONLY CONTRACTING - where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such persons are performing activities which are directly related to the principal business of such employer. Labor-only contracting is prohibited and the person acting as contractor shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. JOB CONTRACTING an arrangement whereby a principal agrees to put out or farm out with a contractor or series of 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. INDEPENDENT CONTRACTOR - one who carries on a distinct and independent business and undertakes to perform the job or to do a piece of work on its own account and under its own responsibility, according to his own manner and methods and free from the control and direction of the principal in all matters connected

with the performance of the work except as to the results thereof. - A mere statement in a contract with a company that laborers who are paid according to the amount and quality of work are independent contractors does not change their status as mere employees in contemplation of labor laws. ELEMENTS OF JOB CONTRACTING: 1. the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; 2. the contractor or subcontractor has substantial capital or investment; and 3. the agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure and social and welfare benefits WHAT IS SUBSTANTIAL CAPITAL refers to the adequacy of resources actually or directly used by the contractor or subcontractor in the performance or completion of the job, work, service contracted out Substantial capital need not be coupled with investment in tools or equipment. This is clear from the use of the conjunction or.

JOB CONTRACTING EXISTENCE OF ER-EE RELATIONSHIP

No E- E relation-ship exists between the employer and the contractors employee except when the contractor or subcontractor fails to pay the wages of his employees liability is limited (shall be solidarily liable w/ er only when latter fails to comply with requirements as to unpaid wages and other labor standards violations) Permissible requires substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary for the conduct of business

LABOR ONLY CONTRACTING

Employer is treated as direct employer of the person recruited in all instances (contractor is deemed the agent of the employer) . liability extends to all rights duties and liabilities under labor standards laws including the right to self- organization

LIABILITY

LEGALITY CAPITALIZATION

Prohibited by law does not require

WORKING CONDITIONS - refers to the terms and circumstances affecting the employment of an employee, including policies, programs and regulations governing his employment status, work, and work relationships. They are, as a rule, determined by the employer.

equivalent to 10% of the amount of wages recovered. b. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of the wages, attorneys fees which exceed 10% of the amount of wages recovered. ( see discussions in Art.222) Attorneys fees presuppose atty-client relationship.

ART. 110. WORKER PREFERENCE IN CASE OF BANKRUPTCY PRINCIPLE: - Workers shall enjoy first preference as regards their unpaid wages and other monetary claims, any provision of law to the contrary notwithstanding.

CHAPTER IV PROHIBITIONS REGARDING WAGES

ART. 112. NON-INTERFERENCE IN DISPOSAL OF WAGES RELATED Civil Code PROVISIONS: Art. 1705. The laborers wages shall be paid in legal currency. Art. 1706. Withholding of the wages, except for a debt due, shall not be made by the employer Art. 1707. The laborers wages shall be a lien on the goods manufactured or the work done. Art. 1708. The laborers wages shall not be subject to execution or attachment except for debts incurred for food, shelter, clothing, and medical attendance .Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer. PROHIBITIONS REGARDING WAGES: 1. Payment of wages with less frequency than once (1) a month 2. Limitations/Interference by the employer with the employees' freedom to dispose of his wages 3. Forcing, Compelling/Obliging employees to purchase merchandise, commodities or other properties from the employer or from any other person, or to make use of any store or service of such employer or any other person 4. Withholding of wages 5. Deduction of wages as consideration of a promise of employment or retention in employment

Just establishes a preference and not a

lien;

Applicable only to ordinary preferred credit,

hence, must yield to special preferred credits, e.g., secured creditors This Article did not sweep away the overriding preference accorded under the scheme of the Civil Code to tax claims of the government. conditions sine qua non to the operation of the preference accorded to workers under Art. 110: a)formal declaration of insolvency or bankruptcy b)general judicial liquidation proceedings of the employers business c)filing of claims by workers The worker preference is not applicable in case the employer corporation is under rehabilitation (RUBBERWORLD INC. VS NLRC).

ART 111. ATTORNEYS FEES a. In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees

6. Refusal to pay/ Reduction of wages and benefits, discharge/ discrimination against any employee as retaliatory measures against any employee who has filed any complaint or instituted any proceedings against his employer ART. 113. WAGE DEDUCTIONS GENERAL RULE. - Wage deduction is strictly prohibited. EXCEPTIONS (ALLOWABLE DEDUCTIONS): A. WITH EMPLOYEES CONSENT: 1. SSS payments 2. MEDICARE payments 3. Contributions to PAG-IBIG Fund 4. value of meals and other facilities 5. payments to third persons with employees consent 6. deduction of absences B. WITHOUT EMPLOYEES CONSENT: 1. workers insurance acquired by the employer 2. union dues, where the right to check-off has been recognized by the employer 3. cases where the employer is authorized bylaw or regulations issued by the Secretary of Labor 4. debts of the employee to the employer which have become due and demandable ART 114. DEPOSITS FOR LOSS OR DAMAGE GENERAL RULE. - No employer shall require his worker to make deposits for the reimbursement of loss of or damage to material, equipment, or tools supplied by the employer. EXCEPTION. - When the trade, occupation or businesses of the employer recognizes, or considers the practice of making deductions or requiring deposits necessary or desirable. REQUISITES OF DEDUCTION FOR LOSS OR DAMAGE: 1. the employee is clearly shown to be responsible for the loss or damage; 2. the employee is given ample opportunity to show cause why deduction should not be made; 3. the amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage; and 4. the deduction from the employees wage does not exceed 20 percent of the employees wages in a week. 10 COMMANDMENTS FOR THE EMPLOYER: 1. No employer shall interfere with the employees freedom to dispose of his wages; ART 112 NON-INTERFERENCE IN DISPOSAL OF WAGES

commodities or other property from the employer or from any other person, or otherwise make use of any store or services of such employer or any other person; ART 112 NON-INTERFERENCE IN DISPOSAL OF WAGES 3. no employer shall make any deductions from the employees wages except when authorized to do so; ART 113 WAGE DEDUCTION

4.

no employer shall require the worker to make deposits from which deductions shall be made for reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer except when the employer is engaged in such business requiring such deposits as determined by the Secretary of Labor; ART 114 DEPOSITS FOR LOSS OR DAMAGE

5.

no employer shall make any deduction from the employees deposits for the actual amount of the loss or damage unless the employee has been heard thereon and his responsibility has been clearly shown; ART 115 LIMITATIONS

6.

no employer shall withhold any amount from the wages unless authorized to do so; ART 116 WITHHOLDING OF WAGES & KICKBACKS PROHIBITED

7.

no employer shall induce the employee to give up any part of his wages by force, stealth, intimidation, threat or dismissal or by any other means without his (worker) consent; ART 116 WITHHOLDING OF WAGES & KICKBACKS PROHIBITED

8.

no employer shall make deductions as consideration of a promise of employment or retention of employment; ART 117 DEDUCTION TO ENSURE EMPLOYMENT

9.

no employer shall refuse to pay or reduce the wages and benefits or otherwise discharge the employee who has filed any complaint under this Title, or has testified or is about to testify in such proceedings; ART 118 RETALIATORY MEASURES

10.

no employer shall make any statement, report or record knowing such statement, report or record to be false in any material respect. ART 119 FALSE REPORTING

CHAPTER V WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION

ART 122. CREATION OF THE REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARDS WHO MAY SET MINIMUM WAGE:

2.

no employer shall force, compel, or oblige employees to purchase merchandise,

1. Regional Tripartite Wages and Productivity Board (RTWPB) 2. Congress COMPOSITION OF RTWPB: 1. 2. 3. 4. 5. 6. Regional Director of DOLE Regional Director of DOLE Regional Director of DOLE 2 members form the employer sector 2 members form the employee sector Secretariat

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. CORRECTION OF WAGE DISTORTION A. Unionized Establishment 1. Negotiate to correct the distortion 2. Any dispute arising therefrom should be resolved through grievance procedure under their CBA 3. If the dispute remains unresolved, through voluntary arbitration B. Establishments Without Unions 1. The employers and workers shall endeavor to correct the distortion. 2. Any dispute arising therefrom shall be settled through the NCMB and 3. If it remains unresolved after 10 days of conciliation, it shall be referred to the NLRC.

MINIMUM WAGE - The lowest wage rate fixed by law that an employer can pay his employees. ART. 123. WAGE ORDER WAGE ORDER an order issued by the Regional Board whenever the conditions in the region so warrant after investigating and studying all pertinent facts and based on the standards and criteria prescribed by the LC, the Regional Board proceeds to determine whether to issue the same or not. EFFECTIVITY OF A WAGE ORDER it shall take effect after 15 days from the its complete publication in at least one newspaper of general circulation in the region. FREQUENCY OF A WAGE ORDER 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. EXCEPTION: When Congress itself issues a law increasing wages. ART. 124. STANDARDS/CRITERIA MINIMUM WAGE FIXING FOR

NB. Wage distortion is non-strikeable. IS THE EMPLOYER LEGALLY OBLIGED TO CORRECT A WAGE DISTORTION? - It appears so. Article 124 of the Code provides that the employer and the union shall negotiate to correct the distortions. If there is no union, the employer and the workers shall endeavor to correct such distortions. MUST THE PREVIOUS PAY GAPS BE RESTORED? While that is the aim, it need not necessarily be restored to the last peso. An appreciable differential, a significant pay gap should suffice as correction of the distortion.

OTHER RELEVANT FACTORS FOR DETERMINING REGIONAL MINIMUM WAGE RATES: (DACN2IPFEE)

CHAPTER VII ADMINISTRATION AND ENFORCEMENT

ART. 128. VISITORIAL AND ENFORCEMENT POWER VISITORIAL POWER - Power of the Sec. of Labor or any of his duly authorized representative to have access to employers records and premises at any time of the day or night whenever work is being undertaken therein. includes the right to copy therefrom, to question any employee & investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Code and of any labor law, wage order, or rules and regulations duly authorized representative herein is the Regional Director

1. Demand for living wages; 2. Wage Adjustment vis--vis the consumer price 3. 4. 5. 6. 7. 8. 9. 10.
index; Cost of living and changes or increases therein; Needs of workers and their families; Need to induce industries to invest in the countryside; Improvements in standards of living; Prevailing wage levels; Fair Return of the capital invested and capacity to pay of employers; Effects on Employment Generation and Family Income; and Equitable Distribution of Income & Wealth along the imperatives of economic and social development

WAGE DISTORTION a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional

 ENFORCEMENT POWER (as amended by RA 7730) - Power of the Sec. of Labor to compel employer to comply with labor standards upon finding of violations discovered in the course of the exercise of the visitorial power Among the powers are the power to: 1. issue Compliance Orders based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection 2. Issue Writs of Execution for the enforcement of orders except in cases where the employer contests the findings of the said labor officers and raises issues supported by documentary proofs which were not considered in the course of inspection 3. Order Work Stoppage/Suspension of Operations when non-compliance with the law or implementing rules and regulations poses grave & imminent danger to the health and safety of the workers in the workplace. 4. Conduct hearings within 24 hours to determine whether
a. an order for stoppage of work/suspension of operations shall be lifted or not. b. employer shall pay the employees concerned their salaries in case the violation is attributable to his fault

HEARING DECISION MR APPEAL (8-10 days w/ Sec. of labor) WORK STOPPAGE

INSTANCES WHEN ENFORCEMENT POWER MAY NOT BE USED 1. case does not arise from the exercise of visitorial power 2. when er-ee relationship ceased to exist at the time of the inspection 3. if employer contests the finding of the labor regulation officer and such contestable issue is not verifiable in the normal course of inspection. ART. 129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS ADJUDICATORY POWER - the Regional Director or any of his duly authorized hearing officer is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interests. REQUISITES: 1. The claim is presented by an employee or person employed in domestic or household service or househelper; 2. The claim arises from employer-employee relations; 3. The claimant does not seek reinstatement; and 4. The aggregate money claim of each employee or househelper does not exceed P5, 000.00 In the absence of any of the requisites, it is the labor arbiter who shall have exclusive jurisdiction over claims arising from employer employee relations, except claims for employees compensation, sss, medicare and maternity benefits, pursuant to Article 217of the Labor Code.

The Secretary may require employers to keep and maintain Employment Records as may be necessary in aid of his visitorial and enforcement powers (exercised through the regional directors of DOLE).

PROCEDURE:
COMPLAINT or ROUTINE INSPECTION ACTUAL INSPECTION (inspector lists the violation in his checklist) INSPECTORS FINDING OF VIOLATION ISSUANCE OF COMPLIANCE ORDER In case of non-compliance ISSUANCE OF WRIT OF NON-COMPLINACE In case party disagrees with RDs finding

ART 128
NATUREOF POWER Visitorial & enforcement power of the Sec. of Labor /his duly authorized representatives exercised through routine inspections of establishment Requires the existence of ER-EE Relationship Enforcement Power is Offshoot of visitorial power No limit as to amount of claim Appeal is with Sec.of Labor ; period of appeal is 10 calendar days Person exercising the power is the Sec. Of Labor or any of his duly authorized representatives who may or may not be a regional director

ART 129
Adjudicatory Power of the Regional Director or any duly authorized hearing officers( to
hear and decide matters involving the recovery of wages, upon complaint of any interested party)

EXISTENCE OF ER-EE RELS. HOW INITIATED LIMITATIONS AS TO AMT. OF CLAIM APPEAL WHO EXERCISES POWER

ER-EE relationship not necessary since it should not include a claim for reinstatement initiated by sworn complaint filed by the interested party Aggregate claim of each complainant does not exceed P5,000 Appeal with NLRC; period of appeal is 5 calendar days The power is vested upon a regional director or any duly authorized hearing officer of the DOLE. 5. Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; 6. Where the women employees are immediate members of the family operating the establishment or undertaking; and 7. Under other analogous cases exempted by the Secretary of Labor in appropriate regulations. ART 132. FACILITIES FOR WOMEN - The Secretary of Labor may require employers to: 1. Provide seats proper for women and permit them to use the seats when they are free from work or during office hours provided the quality of the work will not be compromised; 2. Establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; 3. Establish a nursery in the establishment; and 4. Determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like ART. 133. MATERNITY LEAVE BENEFITS MATERNITY LEAVE UNDER THE SSS LAW - A female member, who need not be legally married, who has paid for at least three (3) monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credit for 60 days or 78 days, in case of caesarian delivery. - Maternity benefits provided herein shall be paid only for the first four (4) deliveries or miscarriages;

TITLE III WORKING CONDITIONS FOR SPECIAL GROUP OF EMPLOYEES CHAPTER I EMPLOYMENT OF WOMEN
ART. 130. NIGHTWORK PROHIBITION

No woman, regardless of age, shall be

employed or permitted or suffered to work, with or without compensation in any : 1. Industrial undertaking between 10PM and 6AM 2. Commercial/Non-Industrial undertaking between 12 MN and 6AM 3. Agricultural undertaking at nighttime unless she is given a period of rest of not less than 9 consecutive hours ART. 131. EXCEPTIONS The prohibitions prescribed by Article 130 shall not apply in any of the following cases: 1. In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic, or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; 2. In cases of urgent work to be performed on the machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; 3. Where the work is necessary to prevent serious loss of perishable goods; 4. Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare service;

- Maternity benefits like other benefits granted

by the SSS, are granted in lieu of wages and therefore, may not be included in computing the employees 13th month pay for the calendar year. QUALIFICATIONS FOR ENTITLEMENT: 1. The female employee should be employed at the time of the delivery, miscarriage, or abortion; 2. 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; 3. That full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application; 4. That payment of daily maternity benefits have been received; Is it necessary that a woman be impregnated by her legitimate spouse? No. it is immaterial who the father is. OTHER IMPORTANT CONDITIONS: 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 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 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. EXTENSION OF MATERNITY LEAVE ART 133 (b) - the maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, or miscarriage, which renders the woman unfit for work , unless she has earned unused leave credits from which such extended leave may be charged. PATERNITY LEAVE (RA 8187 , July 5,1996) Grants paternity leave of 7 days with full pay, consisting of basic salary, to all married male employees in the public and private sector Available only for the first 4 deliveries of the legitimate spouse with whom the husband is cohabiting; the term delivery includes childbirth, miscarriage or abortion. In the event that such leave was not availed of, said leave shall not be convertible to cash

CONDITIONS FOR ENTITLEMENT: 1. He is an employee at the time of the delivery of his child; 2. He is cohabiting with his spouse at the time she gives birth or suffers a miscarriage; 3. He has applied for paternity leave with his employer; 4. His wife has given birth or suffered a miscarriage; the term wife refers to the lawful wife which means the woman who is legally married to the male employee concerned. APPLICATION OF LEAVE: Must be made: 1. within a reasonable time from the expected date of delivery by the pregnant spouse within such period as may be provided by company rules & regulations or CBA prior application for leave shall NOT be required in case of miscarriage.

ART. 134. FAMILY PLANNING SERVICES - Employers who habitually employ more than two hundred (200) workers in any locality shall provide free family-planning services to their employees and their spouses which shall include but not limited to, the application or use of contraceptive pills and intrauterine devices. 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. ACTS OF DISCRIMINATION:

a. Payment of a lesser compensation for work of

equal value. b. Favoring a male employee over a female employee solely on the account of their sexes. ART. 136. STIPULATION AGAINST MARRIAGE it shall be unlawful for an employer: 1. to require as a condition for employment or continuation of employment that a woman employee shall not get married, 2. to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated 3. to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. ART. 137. PROHIBITED ACTS -It shall be unlawful for an employer : 1. To discharge any woman employed by him for the purpose of preventing such woman from enjoying the maternity leave, facilities and other benefits provided under the Code;

PURPOSE: to enable the husband to lend support to his wife during the period of recovery and/ or in the nursing of the newly born child

2. To discharge such woman employee 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 be pregnant; 4. To discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code; ART. 138. CLASSIFICATION OF CERTAIN WOMEN WORKERS

HAZARDOUS WORKPLACES: 1. where the nature of the work exposes the workers to dangerous environmental elements, contaminants or work conditions; 2. where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing, and mechanized farming; 3. where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products; 4. where the workers use or are exposed to heavy or power-driven machinery or equipment; and 5. where the workers use or are exposed to powerdriven tools,

- Any woman who is permitted to work or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation.
CHAPTER II EMPLOYMENT OF MINORS
(see RA 7610 annex )

CHAPTER III EMPLOYMENT OF HOUSEHELPERS

ARTS. 141-152 RIGHTS OF HOUSEHELPERS: (Articles 1689 1699, NCC) 1.non-assignment to non- household work 2.Reasonable compensation (minimum cash wage) 3.Lodging, food, and medical attendance 4.If under 18 years old, an opportunity for elementary education - cost of which shall be part of househelpers compensation 5.Contract for household service shall not exceed 2 years. - Renewable however from year to year 6.Just and humane treatment 7.Right not to be required to work for more than 10 hours a day - If the househelper agrees to work overtime, and there is additional compensation, the same is permissible 8.Right to four days vacation each month with pay - If the helper does not ask for the vacation, the number of vacation days cannot be accumulated, he is entitled only to its monetary equivalent. 9.Funeral expenses must be paid by the employer if the househelper has no relatives with sufficient means in the place where the head of the family lives 10. Termination only for a just cause. 11. Indemnity for unjust termination of service 12. Employment certification as to nature and duration of service and efficiency and conduct of the househelper. ART. 149. INDEMNITY FOR UNJUST TERMINATION OF SERVICE SUMMARY OF RULES :

ART. 139. MINIMUM EMPLOYABLE AGE GENERAL RULE: No child below 15 shall not be employed. CONDITIONS ON THE EMPLOYMENT OF A CHILD BELOW 15:

1. When the child works directly under the sole

responsibility of his/her parents or legal guardian who employs members of his/her family only under the following conditions:
a. employment does not endanger the childs life, safety, health and morals; b. employment does not impair the childs normal development; and c. the parent/legal guardian provides the child with the primary and/or secondary education prescribed by DECS.

2. Where the childs employment or participation in public entertainment or information through cinema, theater, radio, or television is essential, provided that:
a. employment does not involve advertisements or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products or exhibiting violence; There is a written contract approved by the DOLE; and The conditions prescribed for the employment of minors {above stated} are met.

b. c.

Any person between the ages of 15 and 18 may be employed in any non-hazardous work.

NONHAZARDOUS WORK OR UNDERTAKING one where the employee is not exposed to any risk which constitutes an imminent danger to his safety and health.

If the period for household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity. 1. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. ART. 151. EMPLOYMENT FOR CERTIFICATION - Upon the severance of the household service relationship, the househelper may demand from the employer a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

TITLE I POLICY AND DEFINITIONS

ART. 211. DECLARATION OF POLICY LABOR RELATIONS LAW those intended to stabilize the relations of employees and their employers, adjust differences between them through the encouragement of collective bargaining, and settle labor disputes through conciliation, mediation and arbitration it defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Absent an employer-employee relation, there is no labor relations to speak of. - Collective bargaining process is possible only when there is a labor organization, i.e., (1) labor union or (2) employee association. PARTIES TO LABOR RELATIONS CASES: 1. employees organization, 2. management, and 3. the public The public is always to be considered in disputes between labor and capital, and it has been held that the rights of the general public are paramount. Labor relations policy under the LC is embodied in Section 3 Article XIII of the 1987 Constitution which guarantees to all workers their right among others to: 1. Self-organization, 2. Collective bargaining and Negotiations, 3. Peaceful and concerted activities including the right to strike in accordance with law, and 4. Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

CHAPTER IV EMPLOYMENT OF HOMEWORKERS

ARTS. 153-155 ART. 153. REGULATION OF INDUSTRIAL HOMEWORKERS - Rule shall apply to any homeworker who performs in or about his home any processing of goods or materials, in whole or in part, which have been furnished directly or indirectly by an employer and thereafter to be returned to the latter. ART. 155. DISTRIBUTION OF HOMEWORK EMPLOYER OF HOMEWORKERS : - 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 or articles to be processed in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his direction; or (2) Sells any goods or articles 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.

ART. 212. DEFINITIONS EMPLOYER- one who employs the services of others; one for whom employees work and who pays their wages or salaries. any person acting in the interest of an employer, directly or indirectly. The term does not include a labor organization or any of its officers and agents, EXCEPT when acting as an employer. EMPLOYEE- one who works for an employer; a person working for salary or wages. Shall not be limited to the employees of a particular employer, and it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of unfair labor practice IF he has not obtained any other: 1. Substantially equivalent and 2. Regular employment (212F)

BOOK FIVE
LABOR RELATIONS

 WORKERS ASSOCIATION - any association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective for bargaining. INDEPENDENT UNION - any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration prescribed under Art. 234. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate. FEDERATION - any labor organization with at least 10 locals/chapters or affiliates each of which must be a duly certified or recognized collective bargaining agent. LEGITIMATE WORKERS ASSOCIATION-an association of workers organized for mutual aid and protection of its members of for any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Sections 2-C and 2-D of these rules LABOR MANAGEMENT COUNCIL - Deals with the employer on matters affecting the employees rights, benefits and welfare. Purposes are to:
a. b. c. promote gainful employment improve working conditions and achieve increased productivity (RA 6971)

bargaining, mutual aid, interest, protection, or other lawful purposes.

cooperation,

LEGITIMATE LABOR ORGANIZATION- any labor organization in the private sector registered or reported with the Department in accordance with Rules III and IV of these rules. LABOR DISPUTE includes any controversy or matter concerning:

1.
2.

terms or 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 The test of whether a labor controversy comes within the definition of a labor dispute depends on whether it involves or concerns terms, conditions of employment, or representation

LABOR ORGANIZATION refers to any union or association of employees in the private sector which exists in whole or part for the purpose of collective TYPES OF LABOR DISPUTES: LABOR STANDARDS DISPUTES 1. compensation (e.g., underpayment of minimum wage) LABOR RELATIONS DISPUTES 1. organizational right dispute/unfair labor practice (e.g., coercion, restraint or interference in unionization efforts) 2. representation disputes (e.g., determination of the collective bargaining unit, ULP strike) 3. bargaining disputes (e.g., refusal to bargain)

2. benefits (e.g., nonpayment of holiday pay, overtime pay) 3. working conditions (e.g., unrectified work hazards)

4. contract administration or personnel policy disputes (e.g., noncompliance with CBA provisions) 5. employment tenure disputes (e.g., non regularization of employees)

PARTIES TO A DISPUTE:

TITLE II
employer,

1. PRIMARY PARTIES 2.

employees, union SECONDARY PARTIES voluntary arbitrator, agencies of DOLE (BLR, VAC), NLRC, Sec. of Labor, Office of the President

NATIONAL LABOR RELATIONS COMMISSION CHAPTER I CREATION AND COMPOSITION

 ART. 213. NATIONAL LABOR RELATIONS COMMISSION TRIPARTISM The NLRC is composed of five (5) divisions. Three (3) sectors are represented in the composition of the NLRC. Each division composed of three commissioners will have representatives from the following [choice of the Sec. Of Labor]: 1. from the public sector 2. workers organizations 3. employer and management sector

ITS ADJUDICATORY FUNCTION under Art 129 of the Labor Code THE NLRC ONLY SITS EN BANC FOR PURPOSES OF: promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches, and b. formulating policies affecting its administration and operations. The Commission may only sit en banc for the determination of policies and NOT for purposes of adjudication. (RA 6715)
a.

QUALIFICATIONS OF THE CHAIRMAN AND THE COMMISSIONERS: 1. must be a member of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 5 years; 3. must have experience or exposure in handling labor management relations for at least 15 years; and 4. preferably a resident of the region where he is to hold office. The appointment of the Chairman and the Commissioners of the NLRC are not subject to confirmation by the Commission on Appointments QUALIFICATIONS OF EXECUTIVE LABOR ARBITERS/LABOR ARBITERS: 1. must be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 7 years; and 3. must have experience or exposure in handling labor management relations for at least 3 years. TERM OF OFFICE OF THE CHAIRMAN, COMMISIONERS, AND LABOR ARBITERS: they shall hold office during good behavior until they reach the age of 65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office. A. EXCLUSIVE AND ORIGINAL JURISDICTION OF THE NLRC: Cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263CERTIFIED CASES; INJUNCTION CASES under Art. 218 and 264; AND CONTEMPT CASES EXCLUSIVE APPELLATE JURISDICTION OF THE NLRC:
1.

Adjudication of cases certified to the NLRC, or appealed to it from the decision of its Labor Arbiters are referred to and decided by its five (5) divisions.

-Petitions for certiorari (Rule 65) against decisions of the NLRC should henceforth be initially filed with the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The Court of Appeals is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martins Funeral Homes vs. NLRC G.R. No. 130866) - Findings of facts of a labor tribunal are accorded the utmost respect by the courts and are well-nigh conclusive if supported by substantial evidence. - Labor cases are not subject to Barangay Conciliation since ordinary rules of procedure are merely suppletory in character vis--vis labor disputes which are primarily governed by labor laws.\ - The failure of the petitioner to file a motion for reconsideration of the decision of NLRC before filing a petition for certiorari has in certain instances been held not to be a fatal omission.

CHAPTER II POWERS AND DUTIES

ART. 217. JURISDICTION OF ARBITERS AND THE COMMISSION LABOR

1.

2. 3.

B.

EXCLUSIVE AND ORIGINAL JURISDICTION OF LABOR ARBITERS: - Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within 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 nonagricultural: ULP cases; TERMINATION disputes; If accompanied WITH A CLAIM FOR REINSTATEMENT, those cases that workers may file involving wages, rates of
1. 2. 3.

2.

Cases DECIDED BY LABOR ARBITERS under Art 217b and Sec 10 RA 8012(Migrant Workers Act); and Cases DECIDED BY THE REGIONAL OFFICES OF DOLE IN THE EXERCISE OF

4.

5.

6.

7.

8.

pay, hours of work and other terms and conditions of employment; Claims for actual, moral, exemplary and other forms of DAMAGES arising from employer-employee relations; CASES ARISING FROM ANY VIOLATION OF ART 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 EMPLOYEREMPLOYEE RELATIONS, including those of persons in domestic or household service, involving an amount exceeding P5, 000.00 regardless of whether accompanies with a claim for reinstatement MONETARY CLAIMS OF OVERSEAS CONTRACT WORKERS under the Migrant Workers Act of 1995. Claims of employees against GOCCs if the latter does not have an original charter and has been incorporated under the Corporation Code. Although the provision speaks of EXCLUSIVE AND ORIGINAL JURISDICITION OF labor arbiters, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262. The law prefers voluntary over compulsory arbitration.

e. Power to issue injunctions and restraining orders PROCEDURE FOR THE ISSUANCE OF RESTRAINING ORDER/ INJUNCTION: a. filing of a verified PETITION b. HEARING AFTER DUE AND PERSONAL NOTICE has been served in such manner as the Commission shall direct, to: a. all known persons against whom the relief is sought and b. also to the Chief Executive or other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect the complainants property c. RECEPTION AT THE HEARING OF THE TESTIMONIES OF WITNESSES with opportunity for cross- examination, in support of the allegations of the complaint made under oath as well as testimony in opposition thereto d. FINDING OF FACT of the Commission to the effect that : prohibited or unlawful acts have been threatened and will be committed, or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof. That substantial and irreparable injury to the complainants property will follow That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of the relief than will be inflicted upon the defendants by the granting of the relief That complainants has no adequate remedy at law That public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection. e. Posting of a BOND REQUISITES BEFORE TRO MAY BE ISSUED EX PARTE: The complainant shall ALLEGE THAT, unless a TRO is issued without notice, a substantial and irreparable injury to complaints property will be unavoidable; 2. TESTIMONY UNDER OATH is sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice; 3. The complainant shall first FILE AN UNDERTAKING WITH ADEQUATE SECURITY in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expenses or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorneys fee, and expense of
1.

Cases which must be disposed of by the labor arbiter by referring the same to the grievance machinery and voluntary arbitration: a. Disputes on the interpretation or implementation of CBA and b. those arising from the interpretation or enforcement of company personnel policies. The labor arbiter and the NLRC have no jurisdiction over claims filed by employees against international agencies such as IRRI, WHO etc. unless they expressly waive their immunity. (Lasco vs. UNRFNRE) In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter are null and void. ART. 218. POWERS OF THE COMMISSION POWERS OF THE NLRC: a. Rulemaking power [promulgation of rules & regulations governing disposition of cases before any of its divisions/regional offices] b. Power to issue compulsory processes [administer oaths, summon parties, issue subpoenas] c. Power to investigate matters and hear disputes within its jurisdiction [adjudicatory poweroriginal & appellate jurisdiction over cases] d. Contempt power [218]

defense against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission The TRO shall be effective for no longer than 20 days and shall become void at the expiration of said 20 days counted from the date of the posting of the bond. The procedural and substantial requirements of Art 218 (e) must be strictly complied with before an injunction may issue in a labor dispute. THE FOLLOWING CAN ISSUE INJUNCTIONS/ TRO IN LABOR DISPUTES: 1. President (ART. 263, g) 2. Secretary of Labor (ART. 263, g) 3. Labor Arbiters (ART. 217/RULE XI Sec. 1 of IR&R) 4. NLRC (218) 5. Regional Directors 6. Med- Arbiters ART. 219. OCULAR INSPECTION The Chairman, any Commissioner, labor Arbiter or their duly authorized representatives may, at anytime during working hours: a. Conduct an ocular inspection on any establishment, building, ship, place or premises, including any work, material, implement, machinery, appliance or any object therein; and b. Ask any employee, laborer, or any person as the case may be for any information or date concerning any matter or question relative to the object of the investigation ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT The NLRC may disregard technical rules of procedure in order to give life to the constitutional mandate affording protection to labor. (Principe vs. Philippine-Singapore Transport Services Inc.) RES JUDICATA applies only to judicial or quasi-judicial proceedings and NOT to the exercise of administrative powers. APPROVAL OF AN AMICABLE SETTLEMENT BY A LABOR ARBITER An amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that: a. it was VOLUNTARILY ENTERED into by the parties and
b.

the agreement and certify its validity (PERIQUET VS. NLRC). ART. 222. APPEARANCES AND FEES APPEARANCE OF NON-LAWYERS BEFORE THE COMMISSION: GENERAL RULE: ONLY lawyers can appear before the NLRC or a Labor Arbiter EXCEPTIONS: Non-Lawyers can appear ONLY in the following instances: 1. if they represent themselves; 2. if they represent their organization or members thereof; or 3. if he is a duly accredited member of the legal aid office duly recognized by the DOJ in cases referred thereto by the latter or by the IBP. ATTORNEYS FEES: The maximum amount to be given a lawyer is 10% of the monetary benefits awarded to the employees excluding the award for moral and exemplary This article prohibits the payment of attorneys fees only where the same is effected through forced contributions from the workers form their own funds as distinguished from union funds. Neither the lawyer nor the union itself may require the individual workers to assume the obligation to pay the attorneys fees from their own pockets. Any agreement to the contrary shall be null and void.

Attorneys fees for CBA negotiations and conclusion shall be in the amount agreed upon by the parties to be taken from the union funds and not from individual union members.

CHAPTER III APPEAL

ART. 223. APPEAL GROUNDS FOR APPEAL: 1.If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter 2.If the decision, order or award was secured through fraud or coercion, including graft and corruption; 3.If made purely on questions of law; and 4.If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. PERIODS WITHIN WHICH TO APPEAL: A. decisions of the regional director:

after having EXPLAINED TO THEM THE TERMS AND CONSEQUENCES thereof.

PURPOSE: for the employees protectionbecause the labor arbiter before whom the case is pending would be in a better position than just any other person to personally determine the voluntariness of

within 5 calendar days from receipt of the order [129 LCRecovery of wages and simple money claims].

reinstatement order as it is selfexecutory. (Pioneer Texturizing Co. vs. NLRC) OPTIONS OF THE EMPLOYER IN COMPLYING WITH AN ORDER OF REINSTATEMENT WHICH IS IMMEDIATELY EXECUTORY:

B. decisions of the labor arbiter:

within 10 calendar days from the receipt of the decision. The appeal must be under oath and must state specifically the grounds relied upon and the supporting arguments. Where the 10th day falls on a Saturday, Sunday or legal holiday, the appeal may be filed on the next business day. (Rules of Procedure of NLRC)

1.

He can ADMIT THE DISMISSED employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up, OR He can REINSTATE THE EMPLOYEE MERELY IN THE PAYROLL. Failure to exercise one of the foregoing options may be compelled under pain of contempt and the employer may be made to pay instead the salary of the employee. A petition for relief from the decision of the labor arbiter must strictly comply with 2 reglementary periods:

2.

PERIOD TO APPEALNOT EXTENDIBLE It is the policy of the state to settle expeditiously labor disputes. The perfection of an appeal within the statutory/reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgment of the RDs and LAs. (Aboitiz Shipping Employees Association vs. Trajano)

1.

REQUISITES FOR THE PERFECTION OF AN APPEAL TO THE NLRC: Filing of A VERIFIED MEMORANDUM OF APPEAL within the required period of appeal; 2. In case of monetary award, the employer should file a BOND corresponding to the monetary award excluding awards for moral and exemplary damages and attorneys fees. Where the employer failed to post a bond to perfect its appeal, the remedy of the employee is a motion to dismiss the appeal, NOT a petition for mandamus. The intention of the lawmakers is to make the bond an indispensable requisite for the perfection of an appeal by the employer. Appeal fee of P150; 4. Proof of service - furnish the other party with a copy of the memo of appeal.
1.

The petition must be filed within 60 days from knowledge of the judgment; and 2. The petition must be filed within a fixed period of 6 months from entry of such judgment. Petitions filed beyond said period will no longer be entertained. APPEAL FROM THE DECISION OF THE NLRC: No law allows an appeal from a decision of the Secretary of Labor, or the NLRC, or of a voluntary arbitrator. In these cases, the special civil action of certiorari, prohibition or mandamus under Rule 65 of the Rules of Court may be lodged with the Court of Appeals. (St. Martins Funeral Home vs. CA)

ART 224. EXECUTION OF DECISIONS, ORDER, OR AWARDS The decision of the Secretary of Labor, the Commission, the Bureau or Regional Director the Labor Arbiter, the Med-Arbiter or the Voluntary Arbitrator shall be final and executory after 10 calendar days from receipt thereof by the parties. The foregoing may, upon its own initiative or on motion of any interested party, issue a writ of execution on a judgment within 5 years from the date it becomes final and executory. The immediate execution of judgment should be undertaken only when the monetary award had been carefully and accurately determined by the NLRC and only after the employer is given the opportunity to be heard and to raise objections to the computation.

3.

Failure to give a copy of the appeal to the appellee within 10 days is not fatal IF the latter was not prejudiced by the delay in the service of said copy of the appealtechnical rules must yield to the broader interest of substantial justice. (Modern Fishing Gear Labor Union vs. Noriel) EXECUTION PENDING APPEAL - the decision of the labor arbiter ordering the reinstatement of a dismissed or separated employee shall be immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution. There is no need for the arbiter to issue a writ of execution on the

TITLE III BUREAU OF LABOR RELATIONS

i. ART. 226. BUREAU OF LABOR RELATIONS Pursuant to E.O. 126, the NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB) has absorbed the conciliation, mediation and voluntary arbitration functions of the BLR. Jurisdiction over labor-management problems or disputes is also exercised by other offices such as the DOLE regional offices, and the Office of the Secretary, NLRC, POEA, OWWA, SSS-ECC, the regional wage and productivity boards, NWPC, and even the regular courts over intra-corporate disputes.

EXCLUSIVE AND ORIGINAL JURISDICTION OF THE BLR -to act at its own initiative or upon the request of either or both parties on all:

opposition to application for union and CBA registration; j. violations of or disagreements over any provision in a union or workers association constitution and by-laws; k. disagreements over chartering or registration of labor organizations and CBAs; l. violations of the rights and conditions of union or workers association membership; m. violations of the rights of legitimate labor organizations, except interpretation of CBAs; n. such other disputes or conflicts involving the rights to self-organization, union membership, and collective bargaining 1. between and among legitimate labor organizations 2. between and among members of a union or workers association EXTENDED COVERAGE (Section 2 Rule XI DO 4003) Other related labor relations disputes shall include any conflict between a labor organization and the employer or any individual, entity, or group that is not a labor organization or workers association. This includes: 1. cancellation of registration of unions and workers associations; and 2. a petition for interpleader SPECIAL REQUIREMENTS AS TO THE FILING OF CASES: A. INVOLVING ENTIRE MEMBERSHIP 1.The complaint must be signed by at least 30% of the entire membership of the union and 2.It must also show exhaustion of administrative remedies. B. INVOLVING A MEMBER ONLY - In such case only the affected member may file the complaint.

1. 2. 3.

INTRA- union conflicts INTER- union conflicts all DISPUTES, GRIEVANCES OR PROBLEMS arising from or affecting labor- management relations in all workplaces whether agricultural or nonagricultural. The parties may however, by agreement, settle their differences by submitting their case to a voluntary arbitrator rather than taking the case to the BLR. CASES WHERE THE BLR HAS NO JURISDICTION: Those arising from the implementation or interpretation of collective bargaining agreements which shall be subject of grievance procedure and/or voluntary arbitration. INTRA-UNION DISPUTES refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the unions constitution and by-laws, or disputes arising from chartering or affiliation. COVERAGE OF INTER/INTRA-UNION DISPUTES (Sec. 1 Rule XI DO 40-03) a. cancellation of registration of a labor organization filed by its members or by any other labor organization; b. conduct of election of union and workers association officers/nullification of election of union and workers association officers; c. audit/accounts examination of union or workers association funds; d. deregistration of CBA; e. validity/invalidity of union affiliation or disaffiliation; f. validity/invalidity of acceptance/nonacceptance for union membership; g. validity/invalidity of impeachment/ expulsion of union and workers association officers; h. validity/invalidity of voluntary recognition;

Redress must first be sought within the union itself in accordance with its constitution and by-laws EXCEPT under any of the following circumstances:
a. futility of intra-union remedies b. improper expulsion procedure c. undue delay in appeal as to constitute substantial injustice d. the action is for damages e. lack of jurisdiction of the investigating body f. action of the administrative agency is patently illegal, arbitrary, and oppressive g. issue is purely a question of law h. where the administrative agency had already prejudged the case i. where the administrative agency was practically given the opportunity to act on the case but it did not.

Imposition of fees by the union affects the entire membership, therefore it requires that the complaint should be signed by at least 30% of the membership of the union.

 INTER-UNION DISPUTES -refers to any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions. EFFECTS OF FILING/PENDENCY OF INTER/INTRA-UNION DISPUTE AND OTHER LABOR RELATIONS DISPUTES (Section 3 Rule XI DO 40-03) - The rights, relationships and obligations of the parties litigants against each other and other parties-

in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-in-interest shall be governed by the decision so ordered. - The filing or pendency of any inter/intra-union disputes is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election.

SUMMARY OF RULES ON INTRA/INTER-UNION DISPUTES (Rule XI DO 40-03) 1. For grounds under Sec. 1: WHO

WHERE FILED

FORMAL REQUIREME NTS

a. any LLO b. member(s) thereof specially concerned 2. For grounds under Sec. 2any party-in-interest 1. Regional Office that issued its certificate of registration or certificate of creation of chartered local- If it involves labor unions with independent registrations, chartered locals, workers association, its officers or members 2. Directly with the BureauIf it involves a Federation/National Unions/Industry Unions, its officers or members 1. in writing 2. verified under oath 3. contains the following averments a. name, address and other personal circumstances of the complainant(s) or petitioner(s); b. name, address and other personal circumstances of the respondent(s) or person(s) charged; c. nature of the complaint or petition; d. facts and circumstances surrounding the complaint or petition; e. cause(s) of action or specific violation(s) committed; f. a statement that the administrative remedies provided for in the constitution and by-laws -have been exhausted or -such remedies are not readily available to the complainant(s) or petitioner(s) through no fault of his/their own or -compliance with such administrative remedies does not apply to complainant(s) or petitioner(s); g. relief(s) prayed for; h. certificate of non-forum shopping; and i. other relevant matters

MODES OF APPEAL IN INTRA/INTER-UNION DISPUTES (Rule XI DO 40-03) 1. Under oath HOW (formal 2. Consist of a memorandum of appeal requirements)

PERIOD TO WHOM APPEALABLE WHERE FILED

3. Based on either of the following grounds: a. Grave abuse of discretion b. Gross violation of the Rules 4. With supporting arguments and evidence Within 10 days from receipt of decision 1. Bureau of Labor Relationsif the case originated from the Med Arbiter/Regional Director 2. Sec. Of Laborif the case originated from the Bureau Regional Office or to the BLR, where the complaint originated (records are transmitted to the BLR or Sec. Within 24 hours from receipt of the memorandum of appeal)

DETERMINATION OF EMPLOYER-EMPLOYEE RELATIONSHIP: - Since the BLR has the original and exclusive jurisdiction to decide, inter alia, all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, necessarily, in the exercise of this jurisdiction over labor-management relations, the Med-Arbiter has the authority, original and exclusive, to determine the existence of an employeremployee relationship. (MY San Biscuits, Inc. vs. Laguesma G.R. No. 9511, 22 April 1991) In cases where there is overlapping of jurisdiction, determine the principal issue. The agency that has jurisdiction thereon may decide on the incidental issues.

ADMINISTRATIVE FUNCTIONS OF THE BLR:

1.

The REGULATION OF REGISTRATION of the labor unions; 2. The KEEPING OF A REGISTRY of labor unions; and 3. The maintenance of a FILE OF CBAS.

ART. 227. COMPROMISE AGREEMENTS REQUIREMENTS: a. must be freely entered into, b. must not be contrary to law, morals or public policy, and c. must be approved by the authority before whom the case is pending [see discussion on

article 221approval of labor arbiter of an amicable settlement in a case before him. May be effected at any stage of the proceedings and even when there is already a final executory judgment (2040 NCC). Cannot be entered into when the final judgment is already in the process of execution. (Jesalva vs. Bautista)

2. It must be WITH THE ASSISTANCE of the

Bureau of Labor Standards, Bureau of Labor Relations or any representative of the DOLE; and The CONSIDERATION MUST BE REASONABLE (required only when entered without the assistance of DOLE) Dire necessity is not an acceptable ground for annulling the releases, especially in the absence of proof that the employees were forced to execute them. (Veloso vs. DOLE)

3.

REQUIREMENTS OF A VALID QUITCLAIM:

1. The

quitclaim must be VOLUNTARILY ARRIVED at by the parties; WITH vs. WITHOUT ASSISTANCE OF DOLE-COMPROMISE AGREEMENTS Without assistance of DOLE With the assistance of DOLE a. VALIDITY/BINDING EFFECT - Valid and binding upon the parties b. REPUDIATION - Can be repudiated by the parties by going to the Commission NOTE: ULP compromise. cases are not subject to

- Valid and binding upon the parties - Can no longer be repudiatedbecomes final and binding upon the parties upon execution EXCEPT a. in case of non compliance with the compromise agreement; or b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion

WAIVER OF REINSTATEMENT like waivers of money claims, a waiver of reinstatement must be regarded as a personal right which must be exercised personally by the workers themselves. (Jag & Haggar Jeans and Sportswear Corp. vs. NLRC) ART 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE AGREEMENT The CBA is more than a contract, it is highly impressed with public interest for it is an essential instrument to promote industrial peace. Must be filed directly with the Bureau or the Regional Offices of DOLE within thirty (30) days from execution. An UNREGISTERED CBA does not bar certification election [contract bar rule will not apply in the absence of registration. [See discussion on Arts. 253 & 253-A]

LABOR ORGANIZATIONS CHAPTER I REGISTRATION AND CANCELLATION

ART. REGISTRATION 234. REQUIREMENTS OF

ART 233. PRIVILEGED COMMUNICATION - Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials may not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.

LABOR ORGANIZATION - Any union or association of employees which exists in whole or in part for the purpose of: a. collective bargaining or b. of dealing with employees concerning terms and conditions of employment. It is the agent of the employees PRINCIPLE OF AGENCY APPLIED Principal employees Agent local/chapter Agent of agent federation LEGITIMATE LABOR ORGANIZATION any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. Not every legitimate labor organization can act as bargaining representative and be certified as such. This is true only of a union that has won in a consent or certification election or has been voluntarily recognized by the employer. PURPOSE OF FORMATION OF LABOR UNIONS:

TITLE IV

for securing a fair and just wages and good working conditions for the laborers; and for the protection of labor against the unjust exactions of capital MODES OF ACQUIRING LABOR ORGANIZATIONS LEGITIMACY FOR

1.Registration with the BLR (Independent Union 2.Affiliation with a legitimate labor federation REGISTRATION REQUIREMENTS FOR LABOR ORGANIZATIONS (as amended by DO 40-03) 3.Application for registration 4.Attachments a.name of the applicant labor union, its principal address; b.the name of its officers and their respective addresses; c. approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union; d.the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); e.the name of all its members comprising at least 20% of the employees in the bargaining unit; f. the annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application;

g.the applicants constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of he organizational meeting(s). The application for registration of labor unions xxx, shall be certified under oath by its Secretary or Treasurer, as the case may be, and attested by its president. The attachments must now be in one(1) original copy and two (2) duplicate copies which shall accompany the application or notice, and submitted to the Regional Office or the Bureau. A prescribed registration fee must be paid before the issuance of the certificate of registration Where to file application for registration: 1. For registration of independent labor unions, chartered locals, workers associations shall be filed with the Regional office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional office. 2. Applications for registration of federations, national unions or workers associations operating in more than one region shall be filed with the bureau or the regional offices, but shall be processed by the bureau.

APPLICATION FOR REGISTRATION OF LABOR ORGANIZATION

WHERE TO FILE

Regional Office

Bureau

(Action within 10 days from receipt of application) Denial Ground: Failure to comply with requirements

Approval - Issuance of certificate of registration

Notify applicant in writing to complete requirements within 30 days from receipt; otherwise, application shall be denied without prejudice to filing a new application MINISTERIAL DUTY OF THE BLR COMPELLABLE BY MANDAMUS- to review the application for registration and not the issuance of a Certificate of Registration.

- After a labor organization had filed the necessary papers and documents for registration, it becomes mandatory for the BLR to check if the requirements under Article 234 have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a labor organization should be denied recognition as a legitimate labor organization. (Progressive Development Corporation-Pizza Hut vs. Laguesma et al., GR No. 115077, April 18, 1997) PURPOSE OF REGISTRATION - Registration with the BLR is the operative act that gives rights to a labor organization. It is the fact of being registered with the DOLE that makes a labor organization legitimate in the sense that it is clothed with legal personality to claim representational and bargaining rights enumerated in Article 242 or to strike or picket under Article 263. The requirement of registration is NOT a curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the rights and privileges granted by law to labor organizations.

A valid exercise of police power since the activities in which labor organizations, associations, or unions of workers are engaged affect public interest, which should be protected. (PAFLU vs. Sec. Of Labor)

FEDERATION- any labor organization with at least 10 locals/chapters or affiliates each of which must be a duly certified or recognized collective bargaining agent. REQUIREMENTS BEFORE A FEDERATION CAN BE ISSUED A CERTIFICATE OF REGISTRATION: Aside from the application, which must be accompanied with the requirements for registration of a labor registration, the application should also be accompanied by the following: 1. Proof of affiliation of at least 10 locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; 2. The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.

Difference between Independent Union and a National Union Federation.

INDEPENDENT UNION Documentation Requirements: a. b. c. d. names, addresses, union offices address L.O. minutes organization and list of participants list of members, at least 20% of the employees in an appropriate bargaining unit e. constitution, by-laws, minutes, adoption, ratification, participants Financial a. union existing more than 1 year, annual report b. fees 50.00 Note: The books of account are not anymore a mandatory requirement. NATIONAL FEDERATION All documents/ financial requirements of an independent union PLUS a. proof of affiliation of at least 10 local chapters, each duly recognized and support the registration b. names, addresses of the company where local/chapters operate, list of members in each company

A LOCAL UNION MAY AFFILIATE WITH A FEDERATION - The procedure of affiliation would depend on whether the union is independently registered or not. REQUIREMENTS OF AFFILIATION (as amended by DO 40-03) 1. Report of affiliation of independently registered labor union 2. Attachments: a. resolution of the labor unions board of directors approving the affiliation; b. minutes of the general membership meeting approving the affiliation; c. the total number of members comprising the labor union and the names of members who approved the affiliation; d. the certificate of affiliation issued by the federation in favor of the

independently registered labor union; and e. written notice to the employer concerned if the affiliating union is the incumbent bargaining agent. A union of supervisory employees may affiliate with a national federation of labor organizations of rank and file employees PROVIDED that:

a.

the federation is not actively involved in union affairs in the company; and

b.

the rank and file employees are not directly under the control of the supervisors ONCE AFFILIATED, A LOCAL UNION MAY DISAFFILIATE FROM THE FEDERATION WHEN TO DISAFFILIATE

GENERAL RULE: A labor union may disaffiliate from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. EXCEPTION: DISAFFILIATION BY MAJORITY This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBAs expiration date.

grounds as may be specified in its constitution or bylaws. The revocation shall divest the local chapter of its legal personality upon receipt of the notice by the Bureau, unless in the meantime the local chapter has acquired independent registration (Rule VIII Section 5 of the IRR)

ART. APPEAL

236.

DENIAL

OF

REGISTRATION;

LIMITATION: disaffiliation should be in accordance with the rules and procedures stated in the Constitution and by-laws of the Federation. A prohibition to disaffiliate in the Federations constitution or by-laws is valid intended for its own protection.

- Decisions of the BLR denying the registration of a labor organization is appealable to the Secretary of Labor within 10 calendar days from receipt of the decision, on grounds of: a. grave abuse of discretion; or

b. gross incompetenceEven before the

onset of the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the union members in the bargaining unit.

REVOCATION OF CHARTER BY THE FEDERATION - by serving the local/chapter a verified notice of revocation, copy furnished the Bureau on the ground of disloyalty or such other RULES ON AFFILIATION/DISAFFILIATION INDEPENDENTLY REGISTERED a. HOW TO AFFILIATE -by signing a contract of affiliation

UNREGISTERED

-by application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau accompanied by the following: a. Copies of its constitution and by-laws b. Statement of the set of officers and Books of accounts, all of which must be certified by the Secretary/Treasurer and attested to by the President. In such case, the union becomes a local chapter of the Federation. upon severance, it would cease to be a legitimate labor organization and would no longer have legal personality and the rights and privileges granted by law to legitimate organization, unless the local chapter is covered by a duly registered collective bargaining agreement. In the latter case, the local or chapter will not lose its legal personality until the expiration of the CBA. After the CBA expires it will lose its legal personality unless it registers as an independent union. The CBA would continue to be valid. The local chapter will not lose its personality until the expiration of the CBA. After the CBA expires the local union looses its personality, unless it registers anew. - union dues may no longer be collected as

b. EFFECT OF DISAFFILIATION TO THE UNION [local] - would not affect its being a legitimate labor organization and therefore it would continue to have legal personality and to possess all the rights and privileges of a legitimate labor organization.

c. EFFECT OF DISAFFILIATION TO THE CBA - an existing CBA would continue to be valid as the labor organization can continue administering the CBA d. ENTITLEMENT TO UNION DUES AFTER

DISAFFILIATION - labor organization is entitled to the union dues and not the federation from which the labor organization disaffiliated.

there would no longer any labor union that is allowed to collect such union dues from the employees. Note: Follow the principle of agency between federation and local. Principal employees Agent local/chapter Agent of agent federation

MODES OF APPEAL
DENIAL BY:

Regional Office (transmit records within 24 hours from receipt of Memo of Appeal)

APPEAL BY MEMO OF APPEAL WITHIN 10 DAYS FROM RECEIPT OF NOTICE

GROUNDS: 1. Grave abuse of discretion; 2. Violation of rules as amended

Bureau (transmit records within 24 hours from receipt of Memo of Appeal)

Bureau (decision within 20 days from receipt of records)

Secretary of DOLE (decision within 20 days from receipt of records)

Supreme Court Rule 65

Supreme Court Rule 65

ART. 238. CANCELLATION REGISTRATION; APPEAL

OF 2. Violation of any of the provisions of Art. 239 (grounds for cancellation of union registration) of the Code 3. Commission of any of the acts enumerated under Art. 241 (rights and conditions of membership) of the code- No petition for cancellation based on this ground may be granted unless supported by at least 30% of all the members of the respondent labor organization or workers association. A pronouncement as to the illegality of the strike is not within the meaning of Art. 239 of the Code which provides for the grounds for cancellation of union registration.

The certificate of registration of any legitimate labor organization shall be cancelled by the BLR if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements prescribed by law. GROUNDS FOR CANCELLATION: 1. Failure to comply with any of the requirements prescribed under Arts. 234 (requirements for registration of a labor union) & 237 (addl reqts federation registration) of the Code.

CANCELLATION OF REGISTRATION
WHERE TO FILE

FOR: 1. Legitimate Individual labor Union 2. Chartered Local 3. Workers Association

FOR: 1. Federations 2. National or Industry Unions 3. Trade Union Centers

Regional Director who has jurisdiction over the place where respondent principally operates (30 days to decide)

Bureau Director (30 days to decide)

WHO MAY FILE

Any party in interest, if ground is: 1. Failure to comply with any of the requirements under Articles 234, 237, and 238, LC 2. Violation of any provision under Art. 239, LC - Take note of cancellation proceedings if violation is D and J of art. 239, LC

Only the members of the Labor organization concerned if grounds are actions involving violations of Art. 241, subject to the 30% rule

MODES OF APPEAL CANCELLATION BY:

Regional Director

Appeal within 10 days from receipt of decision GROUNDS: 1. Grave abuse of discretion; 2. Violation of rules

Bureau

Bureau

Secretary of DOLE

EFFECT OF CANCELLATION OF Rule 65 REGISTRATION IN THE COURSE OF PROCEEDINGS - Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will be binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. [Principle of Agency applied the employees are the principals, and the labor organization is merely an agent of the former, consequently, the cancellation of the unions registration, would not deprive the consenting member-employees of their right to continue the case as they are the considered as the principals]

Supreme Court

ART 239. GROUNDSRule 65 FOR CANCELLATION OF UNION REGISTRATION GROUNDS FOR CANCELLATION OF UNION REGISTRATION: A. FRAUDULENT ACTS

Supreme Court

1. Misrepresentation, False statement or Fraud in

connection with CONSTI/BY-LAWS]: [RATIFICATION OF

a.

the ADOPTION OR RATIFICATION of the constitution and bylaws or amendments thereto, b. the MINUTES of ratification, and c. the LIST OF MEMBERS who took part in the ratification.

2. Misrepresentation, false statement or fraud in

connection with the [ELECTION PAPERS]: a. ELECTION of officers, b. MINUTES of the election of officer and the list of voters, or c. failure to submit these documents together with the list of the newly elected/appointed officers and their postal addresses within 30 days from election B. INACTION OR OMISSION 1. Failure to submit the following documents [RATIFICATION OF CONSTI/BY-LAWS]: a. the adoption or ratification of the constitution and by-laws or amendments thereto, b. the minutes of ratification, and the list of members who took part in the ratification Within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. 2. Failure to submit THE ANNUAL FINANCIAL REPORT to the Bureau within 30 days after the closing of every fiscal year and misrepresentation, false entries and fraud in the preparation of the financial report itself; 3. Failure to submit a LIST OF INDIVIDUAL MEMBERS of the Bureau once a year or whenever required by the Bureau; and 4. Failure to comply with the REQUIREMENTS UNDER ARTICLES 237. C. UNLAWFUL ACTS 1. Acting as a labor contractor or engaging in the CABO SYSTEM, or otherwise engaging in any activity prohibited by law; 2. Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standard established by law [CBA-BELOW MINIMUM STANDARDS];

3. Asking for or ACCEPTING ATTORNEYS FEES OR NEGOTIATION FEES from the employers; 4. Other than for mandatory activities under this Code, checking off special assessment or any other fees without duly signed individual written authorization of the members [UNLAWFUL ASSESSMENTS]; REPORTING REQUIREMENTS OF LABOR UNIONS AND WORKERS ASSOCIATIONS (Rule V DO 40-03) - It shall be the duty of every legitimate labor union and workers association to submit to the Regional Office or Bureau which issued its certificate of registration or certificate of creation of chartered local, as the case may be, two (2) copies of each of the following documents: a. any amendment to its constitution and bylaws and the minutes of adoption or ratification of such amendments, within 30 days from its adoption or ratification; b. annual financial reports within 30 days after the close of each fiscal or calendar year; c. updated list of newly-elected officers, together with the appointive offices or agents who are entrusted with the handling of funds, within 30 days after each regular or special election of officers, or from the occurrence of any change in the officers of agents of the labor organization or workers association d. updated list of individual members of chartered locals, independent unions and workers associations within 30 days after the close of each fiscal year; and e. updated list of its chartered locals and affiliates or member organizations, CBAs executed and their effectivity period, in the case of federations or national unions, within 30 days after the close of each fiscal year, as well as the updated list of their authorized representatives, agents or signatories in the different regions of the country.

RULES ON ADMINISTRATIVE CANCELLATION OF CERTIFICATE OF REGISTRATION OF LLOs DUE TO NON-COMPLIANCE WITH THE REPORTORIAL REQUIREMENTS: WHEN PROPER Failure to comply with its legal duty to submit the documents required to be submitted under Rule V of DO 40-03 for 5 consecutive years 1. Motu-propio by the Bureau 2. Any party-in-interest

WHO MAY FILE THE PETITION FOR CANCELLATION

THREE-NOTICE REQUIREMENT

1st Notice Bureau shall send by registered mail with return card notice for compliance indicating the documents it failed to submit and the corresponding period in which they were required, with notice to comply with the said reportorial requirements and to submit proof thereof to the Bureau within 10 days from receipt thereof 2nd Notice Where no response is received by the Bureau within 30 days from the release of the 1st notice, another notice for compliance shall be made by the Bureau, with warning that failure on its part to comply with the reportorial requirements within the time specified shall cause the continuation of the proceedings for the administrative cancellation of its registration 3rd Notice Where no response is again received by the Bureau within 30 days from release of the 2nd notice, the Bureau shall cause the publication of the notice of cancellation of registration of the labor organization in 2 newspapers of general circulation. When no response is received by the Bureau within 30 days from the date of publication or when the Bureau has verified the dissolution of the labor organization, it shall order the cancellation of registration of the labor organization AND cause its de-listing from the roster of legitimate labor organizations

CHAPTER II RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION

ART. 241. RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION GENERAL GROUPINGS OF THE RIGHTS OF THE UNION MEMBERS:

1. Political right - the right to vote and be voted

for, subject to lawful provisions on qualifications and disqualifications.

2. Deliberative and Decision-Making Right - the

right to participate in deliberations on major policy questions and decide them by secret ballot.

Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau. PERSONS WHO ARE PROHIBITED FROM BECOMING MEMBERS/OFFICERS OF A LABOR ORGANIZATION UNDER THE LABOR CODE (see also notes under Art. 243 on persons who are not granted the right to self-organization): 1. Subversives or those engaged in subversive activities [Art.241 (e)] 2. Persons who have been convicted of a crime involving moral turpitude shall not be eligible for election as union officer or for appointment to any position in the union. [Art. 241 (f)] In general, a union is free to select its own members, and no person has an absolute right to membership in a union.

3. Rights Over Money Matters - the right of the

members: a. against imposition of excessive fees; b. right against unauthorized collection of contributions or unauthorized disbursements; c. to require adequate records of income and expenses; d. to access financial records; e. to vote on officers compensation; f. to vote on special assessment; g. to be deducted a special assessment only with the members written authorization.

LIMITATIONS [see discussion on union security arrangements under Art. 248]: a. The labor org. cannot compel employees already member of rival union. b. persons mentioned in Art. 241(e) [subversives] of the labor code are prohibited from becoming a member a labor organization. c. members of religious organization whose religion forbade membership in labor organization could not be compelled into union membership. REQUIREMENTS IN MAKING SPECIAL ASSESSMENTS or OTHER EXTRAORDINARY FEES (Art. 241 [n]): 1. there must be a WRITTEN RESOLUTION 2. the resolution must have BEEN APPROVED BY A MAJORITY of all the members

4. Right to Information - the right to be informed

about: 5. a. the organizations constitution and bylaws, b. the collective bargaining agreement, and labor laws.

3.

the approval must be AT A GENERAL MEMBERSHIP MEETING DULY called for that purpose The secretary of the organization shall record the minutes of the meeting including: a. the list of all members present, b. the votes cast, and c. the purpose of the assessment or fees The record shall be attested by the President. Substantial compliance to the aforementioned procedure is not enough the requirements must be strictly complied with in view of the fact that the special assessment will diminish the compensation of union members. (Palacol et. al vs. FerrerCalleja et. al) CHECK-OFF - a method of deducting from an employees pay at prescribed period, the amounts due to the union for fees, fines or assessments. CHECK-OFF VS. AGENCY FEE CHECK-OFF

NATURE AND PURPOSE OF CHECK-OFF: to facilitate the collection of dues necessary for the unions life and sustenance. Union dues are the lifeblood of the union. REQUIREMENTS WITH REGARD TO CHECKOFFS (Art. 241 [o]): NO special assessment, attorneys fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee WITHOUT an individual written authorization duly signed by the employee. The authorization should specifically state the: a. amount b. purpose and c. beneficiary of the deduction.

AGENCY FEE
- non-members of the bargaining agent (union) for the enjoyment of the benefits under the CBA. - May be deducted from the salary of employees without their consent.

a. DEDUCTED FROM - members of a union for the payment of union dues. b. CONSENT - May not be deducted from the salaries of the union members without the written consent of the workers affected

Union agency fee cannot be imposed on employees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. (NABAILU vs. San Miguel Brewery Inc) EXCEPTION TO THE REQUIREMENT OF INDIVIDUAL WRITTEN AUTHORIZATION: 1. For mandatory activities provided under the Code; and 2. When non-members of the union avail of the benefits of the CBA. SPECIAL ASSESSMENT vs. CHECK-OFF
SPECIAL ASSESSMENTS
a. HOW APPROVED -by written resolution approved by majority of all the members at a meeting duly called for that purpose

- said non-members may be assessed union dues equivalent to that paid by members - only by a Board Resolution approved by majority of the members in a general meeting called for the purpose Will the employees-members of another union not be considered as free riders? No since when the union bids to be the bargaining agent it voluntarily assumes the responsibility of representing all the employees in the appropriate bargaining unit.

CHECK-OFF
-by obtaining the individual written authorization duly signed by the employee which must specify: a. amount b. purpose and c. beneficiary of the deduction. -not necessary if: 1. For mandatory activities provided under the Code; and 2. When non-members of the union avail of the benefits of the CBA. Said non-members may be assessed union dues equivalent to that paid by members only by a Board Resolution approved by majority of the members in a general meeting called for the purpose.

b. EXCEPTION TO SUCH REQUIREMENT -no exceptionwritten resolution is mandatory at all instances.

CHAPTER III RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS

1. 2. 3. 4. 5.

ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS RIGHTS OF A LEGITIMATE ORGANIZATION [USERFOE]: LABOR

Undertake activities for benefit of members Sue and be sued Exclusive representative of all employees Represent union members Furnished by employers of audited financial statements 6. Own properties 7.Exempted from taxes

TITLE V COVERAGE
ART. 243. COVERAGE AND EMPLOYEES RIGHT TO SELFORGANIZATION PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF COLLECTIVE BARGAINING: 1. All persons employed in commercial, industrial and agricultural (CIA) enterprises, and 2. In religious, charitable, medical or educational (RCME) institutions whether operating for profit or not PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION (AIRSIW): Ambulant, Intermittent, Rural, Self-employed people Itinerant workers and Workers without any definite employers, PERSONS/EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELF-ORGANIZATION: (HEMACEN)

3. Managerial employees
whose functions are normally considered as policy-making or managerial whose duties are of a highly confidential or highly technical in nature (212 LC) Members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards (E.O. 180 Sec. 4); Confidential employees (Metrolab vs. Confesor) Employees of cooperatives who are members (Benguet Elec. Coop. vs Calleja) Non-Employees (Rosario Bros. vs Ople)

4. 5. 6. 7.

Foreigners validly working in the Philippines [with permit from DOLE] can form labor organizations, provided the same right to form, join or assist in the formation of labor unions is also given to Filipinos in their country of origin. This embodies the principle of reciprocity. MAY SECURITY GUARDS FORM A LABOR ORGANIZATION? YES. Under RA 6715, they may now freely join a labor organization of the rank-and-file or that of the supervisory union, depending on their rank. (Meralco vs. Secretary of Labor) EXTENT OF THE ORGANIZATION RIGHT TO SELF-

1. 2. 3. 4. 5. 6.

a. To form, join and assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and b. To engage in lawful concerted activities for the same purpose- for their mutual aid and protection.

1. High-level government employees (E.O. 180

Sec. 3)

2. Employees of international organizations with

immunities (ICMC vs. Calleja) ART. 244. RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE GOVERNMENT OWNED OR CONTROLLED GOVERNMENT OWNED OR CONTROLLED CORPORATIONS WITH A CHARTER CORPORATIONS WITHOUT CHARTER
a. LAW - Employees cannot stage strikes since they are governed by the Civil Service Law. They are enjoined by Civil Service Memorandum Circular No. 6, under pain of administrative sanctions from staging strikes, demonstrations, mass leaves, walkouts and other concerted activities. b. BARGAINING RIGHTS - Corporations with original charters cannot bargain with the government concerning the terms and conditions of their employment. However, they can negotiate with the government on those terms and conditions of employment which are not fixed by law. Thus, they have limited bargaining rights. c. PURPOSE OF ORGANIZATION - Can only form, join or assist labor organization for purposes not contrary to law. - The GOCC is created under Corporation Code, then employees are covered by the Labor Code. Therefore the employees have the same rights as those as employees of private corporations, one of which is the right to strike.

- The GOCC is created under Corporation Code, being governed by the Labor Code, they can bargain with the government concerning the terms and conditions of their employment. Thus, they have unlimited bargaining rights.

- Can form, join or assist labor organization for purposes of CBA, etc.

THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCC WITH ORIGINAL CHARTER: 1. 2. schedule of vacation and other leaves work assignment of pregnant women

3. 4. 5. 6.

personnel growth and development communication system lateral and vertical provision for protection and safely provision for facilities for handicapped personnel

7.

provision for first-aid medical services for married women 8. annual medical/physical examination 9. recreational, social, athletic and cultural activities and facilities (Rules implementing WO 180) THE FOLLOWING ARE CONSIDERED NOT NEGOTIABLE:

h. distribution of work load i. external communication linkages Government employees and employees of government-owned and controlled corporations with original charters may bargain, however, such bargaining power is limited.

1. Those which require appropriation of funds, such

as: a. increase in salary emoluments and other allowance not presently provided for by law b. facilities requiring capital outlays c. car plan d. provident fund e. special hospitalization, medical and dental services f. rice/sugar/other subsidies g. travel expenses h. increase in retirement benefits

NOTE: The Public Sector Labor Management Council (PSLMC), created by E.O. 180 has jurisdiction to hear charges of ULP filed by government employees against their employer. REASONS WHY EMPLOYEES IN GOCCs INCORPORATED UNDER THE CORPORATION CODE ARE ALLOWED TO ORGANIZE: 1. they are not involved in public service 2. terms of employment are not fixed by law 3. they are governed by the provisions of the Labor Code not by the Civil Service Law ART. 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES. MANAGERIAL EMPLOYEE - one who is vested with powers or prerogatives to lay down and execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

2. Those that involve the exercise of management

prerogatives, such as: a. appointments b. promotion c. assignments/details d. reclassification/upgrading of position e. revision of compensation structure f. penalties imposed as a result of disciplinary actions g. selection of personnel to attend seminar, trainings, study grants MANAGERIAL EE UNDER LS AND LR Managerial Employees under Labor Standards a. POWERS/DUTIES - primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof b. EXTENT - includes the officers and members of the managerial staff c. PURPOSE OF DEFINITION - to determine w/n certain employees are covered by Book III of the LC on Conditions of Employment. Reason for ineligibility in the collective bargaining process, managerial employees are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees are union members. In the same manner, the labor union might not be assured of their loyalty to the union in view of the evident conflict of interest. The union can also become companydominated with the presence of managerial employees in Union Membership (Bulletin Publishing Co. Inc. vs. Hon. Augusto Sanchez).

Managerial Employees under Labor Relations - See definition above

- does not include the managerial staff since they are classified as supervisory employees [who may/may not be eligible to join a labor union with the rank and file employees] - to determine an employees eligibility in joining/forming a labor union. SUPERVISORY EMPLOYEES - those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely

routinary or clerical in nature but requires the use of independent judgment. MAY SUPERVISORY EMPLOYEES FORM, ASSIST, JOIN A LABOR ORGANIZATION? YES, on their own and NOT with the rank-and-file employees (RA 6715).

The TEST IS: Do they exercise independent judgment which is not subject to evaluation of other department heads/other superiors? If in the affirmative, then they may-must form a labor organization of their own [separate from the rank and file employees] If their responsibilities do not inherently require the exercise of discretion and independent judgment [or merely routinary/clerical in nature] then they may join the union composed of the rank and file employees.

without having gained the confidence of the appointing authority. But not every confidential employee is managerial; he may be a supervisory or even a rank-and-file employee. ART. 246. NON-ABRIDGEMENT OF THE RIGHT TO SELF-ORGANIZATION THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE ABRIDGED MEANS: It shall be unlawful for any person to: a. restrain, b. coerce, c. discriminate against, or d. unduly interfere - with employees and workers in their exercise of the right to self-organization. Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called unfair labor practice.

NOTE: It is the nature of the employees functions and not the nomenclature or title given to his job which determines whether he has a rank and file or managerial status. (Engineering Equipment, Inc. vs. NLRC) MAY THEY AFFILIATE WITH A FEDERATION OF LABOR ORGANZATIONS OF RANK AND FILE EMPLOYEES? YES. Provided that: a. s the federation is not actively involved in union affairs in the company; and b. the rank and file employees are not directly under the control of the supervisors (Adamson vs. Adamson) CONFIDENTIAL EMPLOYEES - by the very nature of their functions, they assist and act in a confidential capacity to, or, have access to confidential matters of persons who exercise managerial functions in the field of labor relations. Therefore, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. (Philips Industrial Devt Inc. Vs. NLRC) - they are entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employers property. Under the doctrine of necessary implication, confidential employees are similarly disqualified under Article 245. (Republic Planters Bank vs. Torres) NOTE: The phrase in the field of labor relations is important. It stresses labor nexus, i.e., confidentiality of the position is related or linked to labor relations matters. Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, will not render an employee a confidential employee. (SMC Supervisors & Exempt Union vs. Hon. Laguesma, et al.) Confidentiality is not a matter of official rank, it is a matter of job content and authority. It is not measured by closeness to or distance from top management, but by the significance of the jobholders role in the pursuit of corporate objectives and strategies. Every managerial position is confidential because one does not become a manager

TITLE VI UNFAIR LABOR PRACTICES CHAPTER I CONCEPT

ART. 247. UNFAIR LABOR PRACTICES NATURE OF UNFAIR LABOR PRACTICES:

1. VIOLATE THE CONSTITUTIONAL RIGHT of 2.

workers and employees to self-organization; are INIMICAL TO THE LEGITIMATE INTERESTS of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect DISRUPT INDUSTRIAL PEACE; and 4. hinder the promotion of healthy and stable labor-management relations and mutual respect [LABOR-MNGT RELATIONS-UNSTABLE];

3.

2 ELEMENTS OF UNFAIR LABOR PRACTICE: 1. employer-employee relationship between the offender and the offended 2. act done is expressly defined in the Code as an act of unfair labor practice

NOTE: Prohibited acts are all related to the workers' self-organizational right and the the observance of a CBA, except Art. 248 (f) dismissing or prejudicing an employee for giving testimony under the Code. ULP has a technical meaning. It refers to acts opposed to workers' right to organize. Without this, the act, no matter how unfair, is not ULP. It commonly connotes anti-unionism.

 2 ASPECTS OF UNFAIR LABOR PRACTICE: CIVIL CASE

A. PERSONS LIABLE 1. 2. Officers and agents of employer or Labor organization, officers and agents
1.

CRIMINAL CASE
Agents and officers who participated or authorized or ratified the act. 2. Agents, representatives, members of the government board, including ordinary members -MTC/RTC as the case may be.

B. JURISDICTION -Labor Arbiters of the NLRC C. QUANTUM OF PROOF NEEDED - substantial evidence

-beyond reasonable doubt [subject to prosecution and punishment] - one year from the accrual of the ULP act, however it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality. Final judgment in the administrative proceeding finding that ULP has been committed is a prerequisite in filing a criminal case for ULP NOTE: Final judgment in the administrative proceedings shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirements prescribed by the Code.

D. PRESCRIPTIVE PD. - one year from the accrual of the ULP act.

CHAPTER II UNFAIR LABOR PRACTICES OF EMPLOYERS

ART 248. ULP THAT MAY BE COMMITTED BY AN EMPLOYER (1-10) 1. To INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES - in the exercise of their right to selforganization; INTERFERENCE Examples: - outright and unconcealed intimidation - interrogation 1. employer must communicate to the employee the purpose of questioning 2. assure him that no reprisal would take place 3. obtain employee participation voluntarily 4. must be free from employer hostility to union organization 5. must not be coercive in nature -intimidating expressions of opinion by employer TEST OF INTERFERENCE OR COERCION whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of the employees' right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of selforganization and collective bargaining. 2. To require as a condition for employment that a person or an employee - shall not join a labor organization or

- shall withdraw from one to which he belongs; YELLOW DOG CONTRACT - A promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. It is null and void because: - It is contrary to public policy for it is tantamount to involuntary servitude. - It is entered into without consideration for employees in waiving their right to selforganization - Employees are coerced to sign contracts disadvantageous to their family. Does Art. 248 (3) mean that an employer cannot contract out work? NO. Contracting out services is not ULP per se. It is ULP only when the following conditions exist: 1. the service contracted- out are being performed by union members; and 2. such contracting-out interferes with, restrains, or coerce employees in the exercise of their right to selforganization. HOWEVER, when the contracting-out is being done to minimize expenses, then it is a valid exercise of management prerogative. 3. To CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY UNION MEMBERS when such will interfere with, restrain or coerce employees in the exercise of their right to selforganization; To INITIATE, DOMINATE, ASSIST OR OTHERWISE INTERFERE - with the formation or administration of any labor organization,

4.

including the giving of financial or other support to it or its organizers or officers;

5. 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. TEST OF DISCRIMINATION- whenever benefits or privileges given to one is not given to the other under similar or identical conditions when directed to encourage or discourage union membership (see more discussions below) 6. To DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR DISCRIMINATE against an employee for having given or being about to give testimony under this Code; DISCRIMINATION BECAUSE OF TESTIMONY TEST: the subject matter of the testimony can be anything under the Code what is ULP is the employer's retaliatory act regardless of the subject of employee's complaint or testimony 7. To violate the duty to bargain prescribed by this Code; collectively as

the union represents majority of the employees 4.supervisory assistance by soliciting membership, permitting union activities during work time or coercing employees to join the union by threats of dismissal or demotion. DISCRIMINATION FOR OR AGAINST UNION MEMBERSHIP TEST OF DISCRIMINATION: That the discharge of an employee was motivated by his union activity. Such inference must be based on evidence, direct or circumstantial, not upon mere suspicion. CONSTRUCTIVE DISCHARGE - ULP where employer prohibits employees from exercising their rights under the Code, on pain of discharge, and the employee quits as a result of the prohibition THREE COMPONENTS (DISCRIMINATION): OF ART. 248(5)

1.It prohibits discrimination in terms and

conditions of employment in order to encourage or discourage membership in the union; 2.It gives validity to union security agreements; 3.It allows an agency shop arrangement whereby agency fees may be collected from non-union members. SECURITY ARRANGEMENTS - stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. PRINCIPLES ARRANGEMENTS: OF UNION SECURITY

8. To pay negotiation or attorneys fees to the union or its officers or agents as part of the settlement of any

issue in collective bargaining or any other disputes; or 9.

To VIOLATE A COLLECTIVE BARGAINING AGREEMENT. - the violation must be gross and with respect to the economic provision of the CBA All the aforementioned acts (Nos. 1-9) must have a relation to the employees exercise of their to self-organization. Anti-union or antiorganization motive must be proved because it is a definitional element of ULP. RUNAWAY SHOP - an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws or to discriminate against employees at the old plant because of their union activities. COMPANY UNIONISM 1. Initiation of the company union idea by: a. outright formation by employer or his representatives b. employee formation on outright demand or influence by employer c. managerially motivated formation by employees 2. financial support to the union by: a. employer defrays union expenses b. pays attorney's fees to the attorney who drafted the Constitution or by laws of the union 3. employer encouragement and assistance by immediate granting of exclusive recognition as bargaining agent without determining whether

Protection - To shield union members from whimsical and abusive exercise of management prerogatives. 2. Benefits An additional membership will insure additional source of income to the union in the form of union dues and special assessment. 3. Self-preservation- It strengthens the union through selective acceptance of new members on the basis of commitment and loyalty. DIFFERENT KINDS OF UNION SECURITY ARRANGEMENTS:

1.

1. CLOSED-SHOP AGREEMENT - the employer

undertakes not to employ any individual who is not a member of the contracting union and the said individual once employed must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment. EXCEPTIONS: a. employees belonging to any religious sect which prohibit affiliation of their members with any labor organization are not covered by such agreementThe free exercise of religious belief

is superior to contract rights (Victoriano vs. Elizalde Rope Workers). b. members of the rival union are not covered by such arrangement.

4.

2. UNION

3.

SHOP AGREEMENT -stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA [take note of the exceptions in the preceding number.] MAINTENANCE OF MEMBERSHIP CLAUSE the agreement DOES NOT require nonmembers to join the contracting union BUT provides that those who are members thereof at the time of the execution of the CBA and those who may thereafter on their own volition become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the CBA.

The termination of the services of the employee is not automatic upon the request of the union. It cannot be applied to employees who are already MEMBERS OF THE RIVAL UNION or to the employees based on their religious beliefs.

CHAPTER III UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
a.

4. PREFERENTIAL SHOP AGREEMENT an

agreement whereby the employer merely agrees to give preference to the members of the bargaining union in hiring or filing vacancies and retention in case of lay-off. The employer has the right to hire from the open market if union members are not available.
b.

c.

5.

AGENCY SHOP AGREEMENT - an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. This is directed against FREE RIDER employees who benefit from union activities without contributing support to the union, to prevent a situation of non-union members enriching themselves at the expense of union members. Employee members of another/rival union are not considered free riders since when the union [agent] bids to be the bargaining agent, it voluntarily assumed the responsibility of representing all the employees in the appropriate bargaining unit.

d.

e.

f.

To RESTRAIN OR COERCE employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; To CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE, including discrimination To VIOLATE THE DULY OR REFUSE TO BARGAIN COLLECTIVELY with the employer provided that it is the representative of the employees; TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR DELIVER OR AGREE TO PAY OR DELIVER ANY MONEY or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for a fee for union negotiations; To ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEYS FEES FROM EMPLOYERS as part of the settlement of any issue in collective bargaining or any other dispute; or To VIOLATE A COLLECTIVE BARGAINING AGREEMENT. The violation must be gross and must be with respect to economic provisions of the CBA.

PERSONS CIVILLY LIABLE FOR ULP: 1. Officers and agents of employer 2. Labor organization, officers and agents 3. Agents and officers who participated or authorized or ratified the act. FEATHERBEDDING - refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latters requirements. It is not featherbedding if the work is performed no matter how unnecessary or useless it may be.

REQUIREMENTS FOR A VALID TERMINATION BY THE EMPLOYER OF THE SERVICES OF AN EMPLOYEE PURSUANT TO A UNION OR CLOSED-SHOP AGREEMENT:

1. The agreement must be expressed in a CLEAR

AND UNEQUIVOCAL way so as not to leave room for interpretation because it is a limitation to the exercise of the right to self-organization. Any doubt must be resolved against the existence of a closed-shop agreement. The agreement can only have PROSPECTIVE APPLICATION and cannot be applied retroactively. It can only be exercised by giving the employee his right to DUE PROCESS. The employer has the right to satisfy himself that there are sufficient bases for the request of the union.

2. 3.

TITLE VII

COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS

ART. 250. PROCEDURE IN COLLECTIVE BARGAINING

5. RATIFICATION by the majority of all the

workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) 6. REGISTRATION Process Requisites for registration: a. mandatory provisions b. payment of P1, 000 c. 5 copies of CBA d. proof of ratification 7. ADMINISTRATION Process the CBA shall be jointly administered by the management and the bargaining agent for a period of 5 years 8. INTERPRETATION AND APPLICATION Process 1. 2. 3. 4. 5. 6. 7. MANDATORY PROVISIONS OF THE CBA: wages hours of work grievance machinery voluntary arbitration family planning rates of pay mutual observance clause In addition, the Bureau requires that the CBA should include a clear statement of the terms of the CBA.

COLLECTIVE BARGAINING negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work and other terms and conditions of employment and the settlement of disputes by negotiation between an employer and the representative of his employees. Negotiation towards a collective agreement.
The mechanics of collective bargaining is set in motion only when the following JURISDICTIONAL PRECONDITIONS are present: 1. POSSESSION OF THE STATUS OF MAJORITY representation by the employees representative in accordance with any of the means of selection or designation provided for by the Labor Code; 2. proof of MAJORITY REPRESENTATION; and 3. a DEMAND TO BARGAIN under Article 250 (a) of the Labor Code. (Kiok Loy vs. NLRC) COLLECTIVE BARGAINING AGREEMENT (CBA) - a negotiated contract between a legitimate labor organization and the employer concerning: a. wages, b. hours of work, and c. all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries. PROCEDURE IN COLLECTIVE BARGAINING

ART. 252. MEANING OF DUTY TO BARGAIN COLLECTIVELY

DUTY TO BARGAIN COLLECTIVELY - the performance of a mutual obligation:

a. to MEET AND CONVENE promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and b. EXECUTING A CONTRACT incorporating such agreements if requested by either party.

1. 2.

Written NOTICE with statement of proposals REPLY by the other party within 10 calendar days 3. In case of differences, either party may REQUEST FOR A CONFERENCE which must be held within 10 days from receipt of request. 4. If not settled NCMB MAY INTERVENE AND ENCOURAGE the parties to submit the dispute to a voluntary arbitrator 5. If not resolved, the parties may go to where they want AND RESORT TO ANY OTHER LAWFUL MEANS [either to settle the dispute or submit it to a voluntary arbitrator]. During the conciliation proceeding in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes (250[d] LC). 8 STAGES IN THE NEGOTIATION FOR A COLLECTIVE BARGAINING AGREEMENT: 1. PRELIMINARY process - written notice for negotiation which must be clear and unequivocal 2. NEGOTIATION Process 3. EXECUTION Process signing of the agreement 4. PUBLICATION for at least 5 days before ratification

LIMITATIONS: 1. the duty to bargain collectively does not compel any party to: a. agree to a proposal; or b. make a concession. 2. the parties cannot stipulate terms and conditions of employment which are below the minimum requirements prescribed by law (Meaning of duty to bargain when there exists a CBA, see discussion under Art. 253) Collective bargaining does not end with the execution of the agreement. It is a continuous process. The duty to bargain imposes on the parties during the term of their agreement the mutual obligation to meet and confer promptly and expeditiously and in good faith for the purpose of adjusting any grievances or question arising under such agreement. (Republic Savings Bank vs. CA)

 FOUR (4) FORMS OF ULP IN BARGAINING: a. failure or refusal to meet and convene b.evading the mandatory subjects of bargaining c. bad faith in bargaining, including failure or refusal to executive the CBA, if requested d. gross violation of the CBA Do economic exigencies justify refusal to bargain? An employer has been held not guilty of refusal to bargain by adamantly rejecting the union's economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively. ACTS NOT DEEMED REFUSAL TO BARGAIN: 1. adoption of an adamant bargaining position in good faith 2. refusal to bargain over demands for commission of ULP 3. refusal to bargain during period of illegal strike 4. there is no request for bargaining 5. union seeks recognition for an inappropriately large unit 6. union seeks to represent some persons who are excluded from the Code 7. the rank-and-file unit includes supervisors or inappropriate otherwise 8. the demand for recognition and bargaining is made within the year following a certification election in which the clear choice was no union and no ad interim significant change has taken place in the unit 9. the union makes unlawful bargaining demands BARGAINING TO THE POINT OF DEADLOCK OR IMPASSE: 1. over a mandatory subject - party may insist on bargaining and will not be construed as bargaining in bad faith REASON: convening duty to bargain requires meeting and on the terms and conditions of

employment but does not require assent to the other party's proposals. 2. over a non-mandatory subject - party may not insist on bargaining to the point of impasse, otherwise, he will be construed as bargaining in bad faith. EXAMPLE: The employer's insistence that the union should change its negotiator before bargaining can proceed to the employees' wage and benefits is an instance of bad-faith bargaining because the composition of the negotiating panel is not a mandatory subject of bargaining. Hence, if Party A insists on first settling a nonmandatory subject before tackling a mandatory subject, Party B may complain that Party A's posture is just an excuse to avoid bargaining on the mandatory, essential subjects of bargaining; thus, Party B can charge that Party A is bargaining in bad faith or is evading bargaining on terms and conditions of employment - in short, Party A is committing ULP. NOTE: What the rule forbids is the posture of making settlement of a non-mandatory subject a precondition to the discussion or settlement of a mandatory subject. ART. 253. DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT GENERAL RULE: When there is an existing CBA, the duty to bargain collectively shall also mean that neither party shall TERMINATE nor MODIFY such agreement during its lifetime. It is the duty of both parties to: a. keep the status quo and b. to continue in the full force and effect the terms and conditions of the existing CBA EXCEPTION: during the 60-day period prior to its expiration, upon service of a written notice to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the CBA.

DUTY TO BARGAIN COLLECTIVELY UNDER 253 AND 253-A/256 253 A.FREEDOM PERIOD -the notice or proposal period comes towards the end of the two/three year term of non-representation provisions of the CBA B. WHAT MAY BE CHANGED DURING THE 60-DAY FREEDOM PERIOD -re-negotiable provisions of the CBA particularly the non-representation aspect AUTOMATIC RENEWAL CLAUSE Art. 253 provides that the CBA shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them.

253-A/256

- comes on the fifth (5th) year of the CBA

- representation aspectit may be resolved by holding a consent or certification election

WHAT MAY BE DONE DURING THE 60-DAY

FREEDOM PERIOD: a. A labor union may DISAFFILIATE from the mother union to form a local or independent union only during the 60-day freedom period immediately preceding the expiration of the

CBA. [take note of the limitation-see discussions on registration of labor unions] b. either party can serve a written notice to TERMINATE OR MODIFY the agreement at least 60 days prior to its expiration period [on renegotiable/non-representation aspect of the CBAsee discussion on 253] c. a petition for CERTIFICATION ELECTION may be filed ART. 253A. TERMS OF A COLLECTIVE BARGAINING AGREEMENT DURATION OF THE CBA:

WHAT IS THE MEANING OR EXTENT OF THE WORKERS RIGHT TO PARTICIPATE IN POLICY AND DECISION-MAKING PROCESSES? Such right refers ONLY to participation in grievance procedures and voluntary modes of settling disputes and NOT to formulation of corporate programs and policies. NOTE: An employer may solicit questions, suggestions and complaints from employees eventhough the employees are represented by a union, provided: 1. the collective bargaining representative executes an agreement waiving the right to be present on any occasion when employee grievances are being adjusted by the employer and 2. employer acts strictly within the terms of this waiver agreement. ONE-UNION, ONE-COMPANY POLICY - the proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to self-organization for purposes of collective bargaining. EXCEPTION: - supervisory employees who are allowed to form their own unions apart from the rank-and-file employees - the policy should yield to the right of employees to form unions for purposes not contrary to law, selforganization and to enter into collective bargaining negotiations. two companies cannot be treated into a single bargaining unit even if their businesses are related. subsidiaries or corporations formed out of former divisions of a mother company following a reorganization may constitute a separate bargaining unit.

1. With respect to the representation aspect, the

same lasts for 5 years

2. With respect to other provisions [economic

provisions], the same may last for a maximum period of 3 years after the execution of the CBA RULE ON RETROACTIVE AGREEMENT PROVISIONS: EFFECTS OF

a. Those made within 6 months after the date of expiry of the CBA - Any agreement on such other provisions of the CBA made within 6 months after the date of expiry of the CBA is subject to AUTOMATIC RETROACTION to the day immediately following such date of expiry. b. Those not made within 6 months the parties may agree to the DATE OF RETROACTION. This rule applies only if there is an EXISTING AGREEMENT. If THERE IS NO EXISTING AGREEMENT, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement. NOTE: Article 253-A on retroaction does not apply if the provisions were imposed by the Secretary of Labor by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties. ART. 254. NO INJUNCTION RULE No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 (Powers of the Commission/NLRC) and 264 (Prohibited Activities) of this Code. REASON: injunction contradicts the constitutional preference for voluntary modes of dispute settlement

LABOR MANAGEMENT COUNCILS - deal with the employer on matters affecting employees rights, benefits and welfare. They may be formed even if there is already a union in the company.

In cases of strikes/picketing, third parties or innocent bystanders may secure a court (regular court) injunction to protect their rights. (PAFLU vs. CLORIBEL)

ARTS. 256-259 CERTIFICATION ELECTION

PETITION

FOR

ART. 255. EXCLUSIVE BARGAINING REPRESENTATION AND WORKERS PARTICIPATION IN POLICY AND DECISIONMAKING

BARGAINING UNIT- a group of employees of a given employer, comprised of all or less that all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.

 CERTIFICATION YEAR - refers to the period wherein collective bargaining should begin, which is within 12 months following the determination and certification of employees' exclusive bargaining representative. FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT:

1. similarity in the scale and manner of determining earnings 2. similarity in employment benefits, hours of work and other terms and conditions of employment 3. similarity in the kinds of work performed 4. similarity in the qualifications, skills and training of the employees 5. frequency of contract or interchange among the employees 6. common supervision and determination of laborrelations policy 7. history of previous collective bargaining 8. desires of the affected employees 9. extent of union organization MODES OF CHOOSING THE EXCLUSIVE BARGAINING UNIT: 1. SELECTION - certification election 2. DESIGNATION - voluntary recognition A. CERTIFICATION ELECTION the process of determining by secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining

1. the EXPRESS WILL OR DESIRE of the

employees (Globe Doctrine); the desires of all the employees are relevant to the determination of the appropriate bargaining unit. The relevance of the wishes of the employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right to self organization AND MUTUALITY

2. the

SUBSTANTIAL INTEREST factor;

3. prior collective bargaining HISTORY; and 4. EMPLOYMENT STATUS, such as

a. temporary b. seasonal, and c. probationary employee THINGS TO CONSIDER IN DETERMINING THE COMMUNITY OF INTEREST DOCTRINE:

CERTIFICATION vs. CONSENT ELECTION CERTIFICATION ELECTION

CONSENT ELECTION

A. NATURE - separate and distinct from a consent election B. PURPOSE - to determine the sole and exclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining;

- a separate and distinct process and has nothing to do with the import and effect of a certification election - to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit

DIRECT CERTIFICATION - the process whereby the Med-Arbiter directly certifies a labor organization of an appropriate bargaining unit of a company after a showing that such petition is supported by at least a majority of the employees in the bargaining unit. IT IS NO LONGER ALLOWED. (EO 111) EFFECT OF VOLUNTARY RECOGNITION BY THE EMPLOYER - through voluntary recognition by the employer, the labor organization is recognized by the employer as the exclusive bargaining agent which may collectively bargain with such employer.

VOLUNTARY RECOGNITION the process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least a majority of the employees in the bargaining unit.

C.E. IN AN ORGANIZED AND AN UNORGANIZED ESTABLISHMENT

ORGANIZED A. WHEN MANDATORY ON THE PART OF BLR - upon the filing of a verified petition by a legitimate labor organization questioning the majority status of the incumbent bargaining agent within the 60-day freedom UNORGANIZED

Upon: a. the filing of a verified petition by a legitimate labor organization; or b. upon the filing of a petition by the employer when such

period before the expiration of a CBA. - The petition must be supported by the written consent of at least 25% of ALL THE EMPLOYEES IN THE APPROPRIATE BARGAINING UNIT. - the employer cannot file a petition for certification election; only a legitimate labor organization can file such petition. B. PERIOD FOR FILING THE PETITION a. when there is a CBA, the labor organization can file a petition for certification election within the 60-day freedom period (CONTRACT-BAR RULE) b. when there is no CBA, then the labor organization can file a petition for certification election at any time, subject to the Deadlock Bar Rule.

employer is requested by the employees to bargain collectively.

- any time, subject however to the ONE-ELECTION-PERYEAR RULE.

REQUISITES BEFORE A LABOR UNION CAN BE DECLARED A WINNER (DOUBLE MAJORITY RULE):

(a) a VALID ELECTION took place because (b)

majority of the CBU members voted [FIRST MAJORITY]; the said election presented at least THREE CHOICES, e.g., Union One, Union Two, and No Union (Take Note: No Union shall not be a choice in the run off election); NOT ONE OF THE CHOICES OBTAINED THE MAJORITY (50%+1-SECOND MAJORITY) of the valid votes cast; the TOTAL VOTES FOR THE UNIONS IS AT LEAST 50% of the votes cast; there is NO UNRESOLVED CHALLENGED VOTES or election protest which if sustained can materially alter the results

1. Majority of the eligible voters cast their votes

AND 2. Majority of the valid votes cast is for such union. HOW TO DETERMINE MAJORITY RULE: THE DOUBLE

(c) (d) (e)

1. In determining the eligible votes cast [FIRST MAJORITY], include spoiled ballots 2. In determining valid votes [SECOND MAJORITY], eliminate spoiled ballots but include challenged votes RUN-OFF ELECTION: A run-off election is proper if the following conditions exist namely:

Who will participate in the run off? The unions receiving the highest and second highest number of votes cast.

Re Run Election vs. Run off Election RE RUN ELECTION Held in two instances: 1. if one choice receives a plurality of vote and the remaining choices results in a tie; 2. if all choices received the same number of votes; In both instances, the NO UNION is also a choice RULES WHICH PREVENT THE HOLDING OF A CERTIFICATION ELECTION [DONC]: 1. Deadlock bar rule 2. One year bar rule 3. Negotiation bar rule 4. Contract bar rule 1. CONTRACT-BAR RULE - while a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union. REQUIREMENTS IN ORDER CONTRACT-BAR RULE: TO INVOKE

RUN OFF ELECTION Conducted when none of the choices, including the choice of No Union, receives a majority of the valid vote cast. This presupposes no less than three competing choices. In this situation, an election is conducted between the union choices receiving the largest and the second largest number of the valid votes cast.

2. It must contain THE TERMS AND CONDITIONS

of employment.

3. Covered employees in an appropriate bargaining 4. 5. 6. 7.

unit [ABU EES COVERED]. It is for a REASONABLE PERIOD or duration. It must be RATIFIED. It must be REGISTERED with the Bureau. The violation of the contract bar rule or the existence of a duly registered CBA must be specifically IMPLEADED AS A DEFENSE.

1. Agreement is in WRITING AND SIGNED by all

contracting parties.

EFFECT OF AN INVALID AND UNREGISTERED CBA- there is no bar and therefore a certification election may be held. NOTE: Registration of CBA only puts into effect the contract bar rule but the CBA itself is valid and binding even if unregistered.

 1. 2. 3. 4. 5. 6. 7.

EXCEPTIONS TO THE CONTRACT-BAR RULE: CBA is not registered CBA deregistered CBA was hastily concluded way ahead of the freedom period CBA is incomplete in itself CBA does not foster industrial peace because of schism CBA was concluded in violation of an order enjoining the parties from entering into a CBA until the issue of representation is resolved Petition is filed during the 60-day freedom period

2. the deadlock is the subject of a valid notice of strike or lockout 3. NEGOTIATION BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, the duly recognized or certified union has commenced negotiations with the employer in accordance with Art. 250 of the Labor Code. 4. CERTIFICATION YEAR RULE no petition for certification election may be filed within one year from the date of a valid certification, consent, or runoff election or from the date of voluntary recognition EXAMPLES OF BAD FAITH BARGAINING:

SUCCESSOR-IN-INTEREST DOCTRINE When an employer with an existing CBA is succeeded by another employer, the successor-in-interest who is a buyer in good faith has no liability to the employees in continuing employment and the collective bargaining agreement because these contracts are in personam EXCEPT: a. when the successor-in-interest expressly assumes the obligation or b. the sale is a device to circumvent the obligation or c. the sale or transfer is made in bad faith SUBSTITUTIONARY DOCTRINE where there occurs a shift in the employees union allegiance after the execution of a collective bargaining contract with the employer, the employees can change their agent (the labor union) but the collective bargaining contract which is still subsisting continues to bind the employees up to its expiration date. They may, however, bargain for the shortening of said expiration date.

1. Surface Bargaining occurs when employer 2.

constantly changes its positions over the agreement. Boulwarism occurs: a. when the employer directly bargains with the employee disregarding the union. The aim was to deal with the Union through the employees, rather than with the employees through the union. b. Employer submits its proposals and adopts a take it or leave it stand. This is not negotiation because the take it or leave it stand implies threat.

3.

Side Bar Technique

The employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The new agent must respect the contract. (Benguet Consolidated, Inc. vs. Employees and Workers Union-PAFLU) LIMITATION AS TO ITS APPLICATION it cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings of the former agentlike the no strike clause in the CBA executed by the latter (Benguet Consolidated Inc. vs. BCI Employees and Workers Union-PAFLU).

TITLE VII- A (as incorporated by RA 6715) GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION GRIEVANCE MACHINERY - a mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA and the interpretation or enforcement of company personnel policies GRIEVANCE - arises when a dispute or controversy arises over the implementation or interpretation of a CBA or from the implementation or enforcement of company personnel policies, and either the union or the employer invokes the grievance machinery provision for the adjustment or resolution of such dispute or controversy. NATURE OF GRIEVANCE PROCEDURE - It is a must provision in any CBA and no collective agreement can be registered in the absence of such procedure. It is a part of the continuous process of collective bargaining intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace.

2. DEADLOCK BAR RULE - a petition for certification election cannot be entertained if, before the filing of the petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. DEADLOCK arises when there is an impasse, which presupposes reasonable effort at good faith bargaining which, despite noble intentions, did not conclude in an agreement between the parties. INDICATIONS OF A GENUINE DEADLOCK: 1. the submission of the deadlock to a third party conciliator or arbitrator

 VOLUNTARY ARBITRATION - contractual proceedings where parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination. All grievances not settled within 7 days from the date of its submission to the grievance machinery shall automatically be referred voluntary arbitration prescribed in the CBA.

The disputes the parties may submit to a Voluntary Arbitrator can include any or all the disputes mentioned in Art. 217 which otherwise fall under the exclusive jurisdiction of a labor arbiter. Voluntary arbitration may be viewed as a master procedure to prevent or resolve labor disputes

Although the provision mentions parties to a collective bargaining agreement, it does not mean that a grievance machinery cannot be set up in a CBAless enterprise. In any work place where grievance can arise, a grievance machinery (regardless of name) can be established. In a unionized company, Art. 255 allows an employee, union member or not, to raise a grievance directly to the employer.

GROUNDS FOR JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS: Lack of jurisdiction 1. Grave abuse of discretion 2. Violation of due process 3. Denial of substantial justice 4. Erroneous interpretation of the law A voluntary arbitrator is a quasi-judicial instrumentality (Sec 9 BP129 as amended by RA 7902); hence, a petition for certiorari under Rule 65 of the Rules of Court will lie where a grave abuse of discretion or an act without or in excess of jurisdiction of the voluntary arbitrator is shown, which may be filed with the Court of Appeals.

ARBITRATION MAY BE INITIATED BY:

1.
2.

SUBMISSION AGREEMENT where the parties define the disputes to be resolved; or DEMAND OR NOTICE invoking a collective agreement arbitration clause.

TITLE VIII STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER I STRIKES AND LOCKOUTS
ART. 263. STRIKES, PICKETING AND LOCKOUTS

ART 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS JURISDICTION ARBITRATORS: OF VOLUNTARY JURISDICTION

EXCLUSIVE ORIGINAL CONFERRED BY LAW

a)All grievances arising from the interpretation or implementation of the CBA b)Those arising from the interpretation or enforcement of company personnel polices c)Hear and decide wage distortion issues arising from the application of any wage orders in organized establishments. d)Unresolved grievances arising from the interpretation and implementation of the productivity incentive programs under RA 6071 It is the labor arbiter and not the grievance machinery which has jurisdiction over dismissals pursuant to the union security clause. violations of CBA, except those which are gross in character, shall no longer be treated as ULP and shall be resolved as grievances

STRIKE - Any temporary stoppage of work by the concerted action of employees as a result of

an industrial or labor dispute.

IMPORTANCE: it is the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment. Only legitimate labor organizations are given the right to strike. Ununionized workers may hold a protest action but not a strike Not all concerted activities are strikes; they may only be protest actions. And they do not necessarily cause work stoppage by the protesters. A strike, in contrast, is always a group action accompanied by work stoppage.

GROSS VIOLATION flagrant and/or malicious refusal to comply with the economic provisions of the CBA.

LOCKOUT - means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. PICKETING - the act marching to and fro the employers premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. This is an exercise of ones freedom of speech.

1. JURISDICTION BY AGREEMENT OF THE

PARTIES (Art. 262) -all other disputes including ULP and bargaining deadlocks

 STRIKE-BREAKER - any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation with any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work or in the exercise of the right to self organization or collective bargaining STRIKE AREA the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to an fro before all points of entrance to and exit from said establishment SOME EXAMPLES OF STRIKES AND THEIR VALIDITY
A.

by the union. ILLEGAL- It is not valid because it fails to comply with certain requirements of the law, to wit: notice of strike, vote, and report on strike vote. C. SYMPHATETIC STRIKES- are work stoppages of workers of one company to make common cause with other strikers of other companies, without demands or grievances of their own against the employer. ILLEGAL because there is no labor dispute between the workers who are joining the strikers and the latters employer. D. SECONDARY STRIKES- are work stoppages of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute. ILLEGAL- because there is no labor dispute involved. IS A WELGA NG BAYAN LEGAL? NO. A welga ng bayan is illegal because it is a political strike and therefore there is neither a bargaining deadlock nor any ULP. It is a political rally. GROUNDS FOR THE DECLARATION OF STRIKE:
1.

SIT-DOWN STRIKE - is characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer. ILLEGALamounts to a criminal act because the employees trespass on the premises of the employer.

deadlock in collective bargaining (ECONOMIC); and/or unfair labor practices (POLITICAL)

B. WILDCAT STRIKE- is a work stoppage that violates the labor contract and is not authorized ECONOMIC STRIKE

2.

ULP STRIKE [POLITICAL] - An involuntary strike; the labor organization is forced to go on strike because of the ULP committed against them by the employer. It is an act of self-defense since the employees are being pushed to the wall and their only remedy is to stage a strike. -either a. Collective bargaining agent or b. the legitimate labor organization in behalf of its members -15 days from the filing of the notice of strike. - the cooling off period may be dispensed with, and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the unions Constitution and By-laws, which may constitute union busting where the existence of the union is threatened BUT it must still observe the mandatory 7-day period before it can stage a valid strike. - may be awarded the said paid in the discretion of the authority deciding the case.

A. NATURE - A voluntary strike because the employee will declare a strike to compel management to grant its demands.

B. INITIATED BY: - The collective bargaining agent of the appropriate bargaining unit can declare an economic strike. C. COOLING OFF PERIOD -30 days from the filing of the notice of strike. D. EXCEPTION TO THE COOLING-OFF PERIOD - No exceptionmandatory

E. STRIKE DURATION PAY IN CASE OF A LEGAL STRIKE - not entitled to said pay based on the principle that a fair days wage accrues only for a fair days labor

TESTS IN DETERMINING THE LEGALITY OF A STRIKE:

1. Purpose Test

2. Compliance with Procedural and substantive requirements of law 3. Means employed test 1. PURPOSE TEST - The strike must be due to either bargaining deadlock and/or unfair labor practice.
2.

TOTALITY DOCTRINE - the culpability of employers remarks are to be evaluated not only the basis of their implicit implications but are to appraised against the background of and conjunction with collateral circumstances.

an on be in

COMPLIANCE WITH PROCEDURAL & SUBSTANTIVE REQUIREMENTS OF LAW to wit (a-d): a. notice of strike b. 30/15-day cooling-off period

Under this doctrine expressions of opinion by an employer which, though innocent in themselves, frequently were held to be culpable because: a. of the circumstances under which they were uttered b. the history of the particular employers labor relations of anti-union bias or c. because of their connection with an established collateral plan of coercion or interference. WHEN CAN THE SEC. OF LABOR ASSUME JURISDICTION OVER A STRIKE? there exists a labor dispute causing or likely to cause a strike or lockout in a INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST, 2.the Secretary of Labor and Employment may assume jurisdiction and EITHER: - decide it, or - certify the same to the Commission for COMPULSORY ARBITRATION. NOTE: What constitutes indispensable industry is based solely upon the discretion of the Secretary of Labor.
1.

COOLING OFF PERIOD - that period of time given the NCMB to mediate and conciliate the parties. It is that span of time allotted by law for the parties to settle theirdisputes in a peaceful manner, before staging a strike or lockout. c. strike vote STRIKE VOTE - a requirement wherein the decision to declare a strike must be: 1. approved by a MAJORITY of the total union membership in the bargaining unit concerned [not of the whole bargaining unit], 2. obtained by SECRET BALLOT in MEETINGS OR REFERENDA called for the purpose. PURPOSE OF A STRIKE VOTE: - to ensure that the intended strike is a majority decision The report on the strike vote must be submitted to the DOLE at least 7 days before the intended strike subject to the cooling-off period. d. 7-day strike ban 7-DAY STRIKE BAN it is the 7 day waiting period before the date of the purported strike [within which the union intending to conduct a strike must at least submit a report to the Department as to the result of the strike vote] intended to give the Department an opportunity TO VERIFY whether the projected strike really carries the imprimatur of the majority of the union members. 3. MEANS EMPLOYED TEST-A strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which violence is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area [see prohibited activities under art. 264]. NOTE: The 3 tests must concur. Non-compliance with any of the aforementioned requisites renders the strike illegal. EFFECT OF GOOD FAITH OF STRIKERS ON LEGALITY OF STRIKE - A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are found out as not true.

EFFECTS OF THE ASSUMPTION JURISDICTION OF THE SECRETARY

1.

OF

2.

3.

AUTOMATICALLY ENJOINS the intended or impending strike or lockout as specified in the assumption or certification order; if one has already taken place at the time of assumption or certification, all striking or lockedout employees shall IMMEDIATELY RETURN TO WORK; and the employer shall immediately resume operations and READMIT ALL WORKERS under the same terms and conditions prevailing before the strike or lockout. A motion for reconsideration does not suspend the effects as the assumption order is immediately executory.

ISSUES THAT THE SECRETARY OF LABOR CAN RESOLVE WHEN HE ASSUMES JURISDICTION OVER A LABOR DISPUTE:
-

Only issues submitted to the Secretary may be resolved by him. (PAL vs. Sec. of Labor, 23 January 1991). Issues submitted to the Secretary for resolution and such issues involved in the labor dispute itself. (St. Scholasticas College vs. Torres, 29 June 1992) Secretary of Labor may subsume pending labor cases before Labor Arbiters which are involved in the dispute. (Intl Pharmaceuticals vs. Sec of Labor, 09 January 1992). Power of Sec. of Labor is plenary and discretionary. (St. Lukes Medical Center vs.

Torres, 29 June 1993; reiterated in PAL vs. Confesor, 10 March 1994). ART. 264. PROHIBITED ACTIVITIES IN CASE THE STRIKE IS DECLARED LEGAL, ARE THE STRIKERS ENTITLED TO STRIKE DURATION PAY? GENERAL RULE: Strikers are not entitled to their wages during the period of a strike, even if the strike is legal. EXCEPTIONS:
1.

LABOR ORGANIZATIONS 1. No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in Art. 263 or without the necessary strike or lockout vote first having been obtained and reported to the Department. NO strike or lockout shall be declared: a. AFTER assumption of jurisdiction by the President or the Secretary or b. AFTER certification or submission of the dispute to compulsory or voluntary arbitration or c. DURING the pendency of cases involving the same grounds for the strike or lockout.

2.

In case of a ULP STRIKE, in the discretion of the authority deciding the case [see table for more distinction bet. Economic and ULP strike] Where the strikers VOLUNTARILY AND UNCONDITIONALLY OFFERED TO RETURN TO WORK, but the employer refused to accept the offer [e.g. of an unconditional offer: we will return tomorrow and NOT willing to return provided] They are entitled to backwages from the date the offer was made

3. Where there is RETURN-TO-WORK ORDER and the employees are discriminated against. They are entitled to backwages from the date of discrimination. RULE ON REINSTATEMENT OF STRIKING WORKERS: GENERAL RULE : Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employers ULP REASON: because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor. The declaration of a strike is NOT a renunciation of employment relation.

THIRD PERSONS 2. NO person [3rd persons] all obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of the right of selforganization or collective bargaining or shall aid or abet such obstruction or interference.

EMPLOYERS 3. NO employer shall use or employ any STRIKEBREAKER nor shall any person be employed as a strikebreaker.

EXCEPTIONS - The following strikers are NOT entitled to reinstatement: Union officers who knowingly participate in an illegal strike; and 2. any striker/union member who knowingly participates in the commission of illegal acts during the strike. RULE IN STRIKES IN HOSPITALS
1.

PUBLIC OFFICIAL OR EMPLOYEE 4. NO public official or employee, including officers and personnel of the New Armed Forces of the Philippines of the Integrated National Police, or armed persons, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikes in entering or leaving the premises of a strike area, or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein:

It shall be the duty of striking employees or locking-out employer to provide and maintain an effective SKELETAL WORKFORCE of medical and other health personnel for the duration of the strike or lockout. 2. SECRETARY OF LABOR MAY IMMEDIATELY ASSUME JURISDICTION WITHIN 24 HOURS FROM KNOWLEDGE of the occurrence of such strike or lock-out or certify it to the Commission for compulsory arbitration
1.

Provided, That nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to:

a. maintain peace and order, b. protect life and property, and/or c. enforce the law and legal order. PERSONS ENGAGED IN PICKETING

NO person engaged in PICKETING shall: a. commit any act of violence, coercion or intimidation or b. obstruct the free ingress to or egress from the employers premises for lawful purposes,or c. obstruct public thoroughfares

ART. 265. IMPROVED OFFER vs. REDUCED OFFER BALLOTING IMPROVED OFFER BALLOTING REDUCED OFFER BALLOTING

1. a referendum conducted by the NCMB on or before the 30th day of the strike, for the purpose of determining whether or not the improved offer of the employer is acceptable to the union members. PURPOSE 2. to determining whether or not the improved offer of the EMPLOYER is acceptable to the union members. to ascertain the real sentiment of the silent majority of the union members on strike. PERIOD OF FILING 3. on or before the 30th day of the strike LIMITATION 4. applies only to economic strikes (deadlock)

1. a referendum conducted by the NCMB for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners. 2. to determining whether or not the improved offer of the UNION is acceptable to the union members. to ascertain the real sentiment of the silent majority of the union members on strike.

3. on or before the 30th day of the lockout 4. applies only to economic strikes-deadlock in bargaining (lockout)

ART. 266. ARREST AND DETENTION General rule is that a police officer cannot arrest or detain a union member for union activities without previous consultations with the Secretary of Labor EXCEPT on grounds of: a. national security b. public peace c. commission of a crime

RELIEFS AVAILABLE TO DISMISSED EMPLOYEE:

AN

ILLEGALLY

A. REINSTATEMENT - Restoration of the employee to the state from which he has been unjustly removed or separated without loss of seniority rights and other privileges. FORMS OF REINSTATEMENT: 1. ACTUAL OR PHYSICAL REINSTATEMENT - the employee shall be admitted back to work 2. PAYROLL REINSTATEMENT - the employee is merely reinstated in the payroll May a court order the reinstatement of a dismissed employee even if the prayer of the complaint did not include such relief? YES. So long as there is a finding that the employee was illegally dismissed, the court can order the reinstatement of an employee even if the complaint does not include a prayer for reinstatement, unless, of course, the employee has waived his right to reinstatement. By law, an employee who is unjustly dismissed is entitled to reinstatement, among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the employee, because technicalities of law and procedure are frowned upon in labor proceedings (General Baptist Bible College v. NLRC, 219 SCRA 549).

BOOK SIX
POST EMPLOYMENT TITLE I TERMINATION OF EMPLOYMENT
ART. 279. SECURITY OF TENURE SECURITY OF TENURE - the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law.

\What happens if there is an order of reinstatement but the position is no longer available? The employee should be given SUBSTANTIALLY EQUIVALENT POSITION. a

from the date of dismissal of the employee up to the date of actual reinstatement HOW COMPUTED - Under existing law, backwages is computed from the time of the illegal dismissal up to time of actual reinstatement. INCLUDED IN THE COMPUTATION OF BACKWAGES 1. transportation and emergency allowances 2. vacation or service incentive leave and sick leave 3. 13th month pay. NOTE: facilities such as uniforms, shoes, helmets and ponchos should NOT be included in the computation of backwages. REASON: said items are given free, to be used only during official tour of duty not for private or personal use. CIRCUMSTANCES THAT PREVENT AWARD OF BACKWAGES: 1. 2. 3. 4. 5. death of the employee physical and mental incapacity business reverses closure of business reinstatement of dismissed employee confinement in jail

If NO SUBSTANTIALLY EQUIVALENT POSITION IS AVAILABLE, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the employee should merely be given SEPARATION PAY CONSISTING OF ONE MONTH SALARY FOR EVERY YEAR OF SERVICE (1:1). CIRCUMSTANCES WHEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF REINSTATEMENT
1.

2. 3. 4. 5.

TRANSFER OF BUSINESS OWNERSHIP -There is no law requiring a purchasing corporation to absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly dismissed employees CANNOT be enforced against the new owner UNLESS there is an express agreement on the assumption of liabilities by the purchasing corporation; When reinstatement is rendered IMPOSSIBLE due to the abolition of the position; When the business has CLOSED DOWN; PHYSICAL INCAPACITY of the employee; and DOCTRINE OF STRAINED RELATIONS When the employer can no longer trust the employee and vice-versa, reinstatement could not effectively serve as a remedy. This doctrine only applies only to positions which require trust and confidence - Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship, and that all hopes at reconciliation are nil after reinstatement, it would be more beneficial to accord the employee backwages and separation pay.

Which takes precedence in conflicts arising between employers MANAGEMENT PREROGATIVE and the employ ees right to security of tenure? The employees right to security of tenure. Thus, an employers management prerogative includes the right to terminate the services of the employee but this management prerogative is limited by the labor code which provides that the employer can terminate an employee only for a just cause or when authorized by law. This limitation is because no less than the constitution recognizes and guarantees employees right to security of tenure. (Art. 279, Labor Code; Art. XIII, Sec. 3, Constitution) ART. 280. EMPLOYMENT REGULAR AND CASUAL

B. BACKWAGES the relief given to an employee to compensate him for lost earnings during the period of his dismissal. PERIOD COVERED BY THE PAYMENT OF BACKWAGES - Backwages shall cover the period

REGULAR EMPLOYMENT - one wherein an employee is engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. Test of regularity: nature of employment

PROJECT vs. REGULAR EMPLOYEE PROJECT EMPLOYEE A regular employee is one engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer REGULAR EMPLOYEE a project employee is one whose employment is fixed for a specific project or undertaking the completion of which has been determined at the time of the engagement of the employee. (See Art. 280 LC) employer, the completion of which has been determined at the time of the engagement of the employee. SEASONAL EMPLOYMENT - one wherein an employee is engaged to work during a particular

TEMPORARY EMPLOYMENT - one wherein an employee is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the

season on an activity that is usually necessary or desirable in the usual business or trade of the employer.

Under the Labor Code, an employee who is allowed to work after a probationary period shall be considered a regular employee. (Art. 281.)

Pakiao employees are considered employees as long as the employer exercises control over the means by which such workers are to perform their work.

ART. 282. TERMINATION BY EMPLOYER SECURITY OF TENURE - An employer CANNOT terminate the services of an employee EXCEPT for a just cause or when authorized by law. GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION: 1. 2. 3. 4. 5. Gravity of the offense Position occupied by the employee Degree of damage to the employer Previous infractions of the same offense Length of service

PROBATIONARY PERIOD OF EMPLOYMENT the period needed to determine the fitness for the job, i .e., the time needed to learn the job. It is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. PURPOSE: To afford the employer an opportunity to observe the fitness of a probationary employee at work. NOTE: The standard which the probationary employee is to meet must be made known by the employer to the employee at the time of engagement. The services of probationary employees may be terminated for the same causes as in the case of regular employee, except that there is an additional ground failure to meet the standard. LIMITATIONS ON THE EMPLOYERS POWER TO TERMINATE A PROBATIONARY EMPLOYMENT CONTRACT:
1.

A. JUST CAUSES [MaNaBaCA]:

1.

Serious MISCONDUCT OR WILLFUL DISOBEDIENCE by the employee of the lawful orders of his employer or representative in connection with his work; Misconduct- transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. (Dept. of Labor Manual, Sec. 4353.01) Gross and habitual NEGLECT by the employee of his duties; FRAUD OR WILLFUL BREACH by the employee of the trust reposed in him by his employer or duly organized representative Fraud must be committed against the employer or his representative and in connection with the employees work. ((Dept. of Labor Manual, Sec. 4353.01 [3]) Commission of a CRIME OR OFFENSE BY THE EMPLOYEE AGAINST THE PERSON OF HIS EMPLOYER or any immediate member of his family or his duly authorized representative; and Conviction or prosecution is not required. Other causes ANALOGOUS to the foregoing. A cause must be due to the voluntary or willful act or omission of the employee. (Nadura v. Benguet Consolidated, G.R. No. L-17780)

the power must be exercised in accordance with the specific requirements of the contract [COMPLIANCE WITH SPECIFIC REQUIREMENTS]; 2. if a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used [WITHIN PARTICULAR PRESCRIBED TIME]; 3. the employers dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law [DISSATISFACTIONREAL AND IN GOOD FAITH]; and 4. there must BE NO UNLAWFUL DISCRIMINATION in the dismissal.

2.

3.

4.

GENERAL RULE: Probationary employment shall not exceed six months from the date the employee started working. EXCEPTIONS: 1. when it is covered by an apprenticeship agreement stipulating a longer period; or 2. when the parties to an employment contract agree otherwise, such as when the same is established by company policy or when the same is required by the nature of the work to be performed by the employee EFFECT IF PROBATIONARY EMPLOYEE IS ALLOWED TO WORK BEYOND 6 MONTHS If the probationary employee is allowed to work beyond the period of 6 months or the agreed probationary period, said employee becomes a regular employee by operation of law.

5.

DUE PROCESS TO BE OBSERVED BY THE EMPLOYER - For termination of the employment based on the any of the just causes for termination, the requirements of due process that an employer must comply with are:
1.

2.

Written NOTICE should be served to the employee specifying the ground or grounds for termination and giving the said employee reasonable opportunity within which to explain; A HEARING OR CONFERENCE should be held during which the employee concerned, with the assistance of counsel, if the employee so desires, is given the opportunity to respond

to the charge, present his evidence and present the evidence presented against him; A WRITTEN NOTICE OF TERMINATION, if termination is the decision of the employer, should be served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. For termination of employment based on authorized causes, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional office of the Department of Labor and employment at least thirty days before the effectivity of the termination specifying the grounds for termination. NOTE: Under the so-called WENPHIL DOCTRINE if the services of the employee was terminated due to a just or authorized cause but the affected employees right to due process has been violated, the dismissal is legal but the employee is entitled to damages by way of indemnification for the violation of the right.
3.

economical and effective management, and the law does not require that the employer should be suffering financial losses before he can terminate the services of the employee on the ground of redundancy (DOLE PHILIPPINES, INC et al., vs. NATIONAL LABOR RELATIONS COMMISSION et al.) RETRENCHMENT to prevent losses (there is excess of employees and employer wants to prevent financial losses)
3.

CONDITIONS UNDER WHICH AN EMPLOYER MAY RETRENCH: (a) substantial losses which are not merely de minimis in extent; (b) imminence of such substantial losses; (c) retrenchment would effectively prevent the expected and additional losses; (d) the alleged losses and expected losses must be proven by sufficient and convincing evidence. (NDC-GUTHRIE PLANTATIONS, INC., vs. NATIONAL LABOR RELATIONS COMMISSION, ET. AL)
4.

SERRANO vs. ISETANN et. al. abandoned the WENPHIL DOCTRINE and ruled that if the employee is dismissed under just or authorized cause but the affected employees right to due process has been violated, his dismissal becomes ineffectual. Therefore, the employee is entitled to backwages from the time he was dismissed until the determination of the justness of the cause of the dismissal.

closing or CESSATION OF OPERATION of the establishment or undertaking UNLESS the closing is for the purpose of circumventing the provisions of the Labor Code.

5. DISEASE ARTS. 283-284. B. AUTHORIZED CAUSES OF TERMINATION BY THE EMPLOYER:

1. a.

installation of (AUTOMATION)

labor-saving

devices
b.

the disease is incurable within 6 months and the continued employment of the employee is prohibited by law or prejudicial to his health as well as to the health of his co-employees

2.

REDUNDANCY (superfluity in the performance of a particular work) redundancy, for purposes of the Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. (Wishire File Co. Inc. vs. NLRC) Reorganization as a cost-saving device is acknowledged by jurisprudence. An employer is not precluded from adopting a new policy conducive to a more

with a certification from public heath officer that the disease is incurable within 6 months. Before an employer could dismiss an employee based on a disease, Section 8 of Rule 1, Book VI of the Omnibus Rules Implementing the Labor Code requires a certification by a competent public health authority that the disease is of such a nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment. (CATHAY PACIFIC AIRWAYS VS. NLRC AND MARTHA SINGSON)

CAUSE OF TERMINATION Automation

SEPARATION PAY Equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher Equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher Equivalent to one month pay or at least one-half month pay for every year of service Equivalent to one month pay or at least one-half month pay for every year of service Equivalent to at least one-month salary or to month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year. Other causes ANALOGOUS to any of the foregoing.
4.

Redundancy

Retrenchment Closures or cessation of operations not due to serious business losses or financial reverses Disease

NOTE: ARTICLE 283 governs the grant of separation benefits in case of closures or cessation of operation of business establishments NOT due to serious business losses or cessation of operation [North Davao Mining Corp. vs.NLRC, et al]. Therefore, the employee is not entitled to such benefit if the closure was due to SERIOUS BUSINESS LOSSES. When termination of employment is brought by the failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination. When termination is brought about by the completion of the contract or phase thereof, no prior notice is required

ART. 287. RETIREMENT RETIREMENT AGE - The age of retirement is that specified in the CBA or iin the employment contract. If it is not specified, The rule is different with respect to underground mining employees whose optional retirement age is 50-60 provided they have at least served for a period of 5 years (Art. 287 as amended by RA 8558). BENEFITSA retiree is entitled to a retirement pay equivalent to at least month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean: 15 days plus 1/12 of the 13th month pay and the cash equivalent of NOT more than 5 days of service incentive leaves. (22.5 days per year of service) Under Section 26, R.A. No. 4670, otherwise known as the Magna Carta for Public School Teachers, public school teachers having fulfilled the age and service requirements of the applicable retirement laws shall be given ONE RANGE SALARY RAISE upon retirement, which shall be the basis of the computation of the lump sum of the retirement pay and the monthly benefit thereafter. NOTE: Exempted from the payment of retirement pay are retail, service and agricultural establishments or operations employing NOT more than ten (10) employees or workers. Age 60-65 65 Retirement Optional but the employee must have served at least 5 years Compulsory (no need for five years of service

ART. 285. TERMINATION BY EMPLOYEE TERMINATION BY THE EMPLOYEE: a. WITHOUT JUST CAUSE- by serving a WRITTEN NOTICE on the employer at least one month in advance. . The employer upon whom no such notice was served may hold the employee liable for damages. b. WITH JUST CAUSE - An employee may put an end to establish WITHOUT SERVING ANY NOTICE on the employer for any of the following just causes [SUCA]: SERIOUS INSULT by the employer or his representative on the hour and person of the employee; 2. Inhuman and UNBEARABLE TREATMENT accorded the employee by the employer or his representative; 3. Commission of a CRIME OR OFFENSE by the employer or his representative against the person of the employee or any of the immediate members of his family; and
1.

BOOK SEVEN TRANSITORY AND FINAL PROVISIONS TITLE II PRESCRIPTION OF OFFENSES AND CLAIMS ART. 291. MONEY CLAIMS PERIODS OF PRESCRIPTION Cause MONEY CLAIMS ULP ILLEGAL DISMISSAL REINSTATEMENT Period of Prescription 3 years from the accrual of the causes of action 1 year from the accrual of the cause of action 4 years from the accrual of the cause of action 4 years

NOTE: The period of prescription mentioned under Article 292 of the Labor Code refers to and is limited to money claims, all other cases of injury to rights of a workingman being governed by the Civil Code. Hence, REINSTATEMENT prescribes in 4 years. Filipinos recruited by foreign based employers for employment abroad may be covered by the SSS on a voluntary basis Compulsory upon such self- employed persons as may be determined by the Commission including but not limited to the following: 1. all self employed professionals 2. partners and single proprietors 3. actors and actresses directors 4. professional athletes, coaches, trainers 5. individual farmers and fishermen EFFECTIVE DATE OF COVERAGE: - Shall take effect on the first day of the operation with respect to the employer and that of the employee on the day of his employment DEPENDENTS: 1. the legal spouse entitled by law to receive support from the member 2. the legitimate, legitimated or legally adopted and illegitimate child who is unmarried, not gainfully employed and has not reached 21 years of age or if 21 years of age, he is congenitally incapacitated or while still a minor has been permanently incapacitated and incapable of self- support, physically and mentally and 3. the parent who is receiving regular support from the member EMPLOYER Any person natural or juridical, domestic or foreign, who carries on in the Philippines, any trade business, industry undertaking or activity of any kind and uses the services of another person who is under his orders as regards the employment except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government - Self- employed person shall be both the employer and employee at the same time. EMPLOYEE

Appendices
SPECIAL LAWS
SOCIAL SECURITY SYSTEM
COVERAGE: - Compulsory upon all employees not over 60 years of age and their employers In case of domestic helpers, their monthly income should not be less than one thousand pesos Any benefit already earned by the employees under private benefit plans existing at the time of the approval of the Act shall not be discontinued, reduced or otherwise impaired and shall continue to remain under the employers management unless there is an existing agreement to the contrary

- Any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer- employee relationship. BENEFICIARIES - The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted and illegitimate children who shall be the primary beneficiaries of the member, PROVIDED that the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children. In the absence of the legitimated, legally adopted or legitimate children, illegitimate children shall be entitled to 100% of the benefits. In their absence, the dependent parents who shall be the secondary beneficiaries. In the absence of all of the foregoing, any person designated by the covered employee as secondary beneficiary.

the authority of the Republic of the Philippines and those that may be prescribed by the GSIS in coordination with the Civil Service Commission. All service credited for retirement, resignation or separation for which corresponding benefits have been awarded shall be excluded in the computation of service in case of reinstatement in the service of an employer and subsequent retirement or separation which is compensable. UNEMPLOYMENT OR INVOLUNTARY SEPARATION BENEFITS - Monthly cash payments equivalent to 50% of the average monthly compensation shall be paid to a permanent employee who is involuntarily separated from the service due to the abolition of his office or position usually resulting from reorganization. RETIREMENT BENEFITS: CONDITIONS FOR ENTITLEMENT: 1.Member has rendered at least 15 years of service 2.He is at least 60 years of age at the time of retirement 3.He is not receiving a monthly pension benefit from permanent total disability PERMANENT DISABILITY BENEFITS - Monthly income benefit for life equal to the basic monthly pension effective from the date of the disability. Provided: 1. 2. He is in the service at the time of the disability If separated from service, he has paid at least 36 monthly contributions within the 5 year period immediately preceding the disability or has paid a total of at least 180 monthly contributions prior to the disability Unless the member has reached the minimum retirement age, disability benefits shall be SUSPENDED when: 1.he is reemployed 2.he recovers from his disability as determined by the GSIS, whose decision shall be final and binding 3.he fails to present himself for medical examination when required by the GSIS TEMPORARY DISABILITY BENEFITS - 75% of the current daily compensation for each day or fraction thereof of temporary disability benefit not exceeding 120 days in one calendar year after exhausting all sick leave credits and collective bargaining agreement sick leave benefits. PROVIDED: 1. he is in service at the time of his disability 2. if separated, he has rendered at least 3 years of service and has paid at least 6 monthly contributions in the 12- month period immediately preceding the disability HOWEVER, a member cannot enjoy temporary total disability benefit and sick leave pay simultaneously and in no case shall it be less than 70 pesos a day.

MEDICARE
COVERAGE: - All SSS members are covered under the Medicare program. Total permanent disability, unemployed partial permanent disability, retirement pensioners and survivors of deceased members of the SSS and their dependents are also entitled to medical care benefits without need of additional contributions PERIOD OF ENTITLEMENT - The member or pensioner is entitled to a maximum of 45 days confinement in a hospital in a given calendar year. His dependents are given another set of 45 days to be shared among themselves. Unused benefits cannot be carried over to the succeeding year.

GOVERNMENT SERVICE INSURANCE SYSTEM

COMPULSORY MEMBERSHIP Compulsory for all employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status, except members of the Armed Forces and the PNP, subject to the condition that they must settle first their financial obligations with the GSIS and contractuals who have no employer and employee relationship with the agencies they serve. Except for the members of the Judiciary and constitutional commissions who shall have life insurance only, all members of the GSIS shall have life insurance, retirement and all other social security protection such as disability, survivorship, separation and unemployment benefits. COMPUTATION OF SERVICE - The computation of service for the purpose of determining the amount of benefits payable shall be from the date of the original appointment/ election including periods of service at different times under

 SURVIVORSHIP BENEFITS: - Upon the death of a member, the primary beneficiaries shall be entitled to: survivorship pension, PROVIDED: a. member was in service at the time of his death b. if separated from service, has rendered at least 3 years of service and paid 36 monthly contributions with the 5- year period immediately preceding his death or has paid a total of at least 180 monthly contributions. LIFE INSURANCE BENEFITS - All employees except members of the AFP and the PNP shall be compulsorily covered with life insurance. PRESCRIPTION OF CLAIMS - Claims for benefits under the Act except for life and retirement shall prescribe after 4 years from the date of the contingency. JURISDICTION - GSIS shall have the exclusive and original jurisdiction to settle any dispute arising under the Act and any other laws administered by the GSIS.

Social Legislation A. Social Security Act; Government Service Insurance Act; Policy Objectives:
SSS - To establish, develop, promote and perfect a sound and viable tax-exempt social security system suitable to the needs of the people throughout the Philippines which shall promote social justice and provide meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age, and death, and other contingencies resulting in loss of income or financial burden. (sec. 2 RA 8282)

Covered Employer:
SSS 1. Any person a. natural, juridical, domestic, foreign b. carries on in the Philippines trade, business, industry, undertaking c. Uses services of another, under his order as regards employment [8 (c)] 2. Self-employed both employer and employee [8 (c) ] GSIS 1.National government, political subdivisions, branches, agencies, instrumentalities 2. Government owned and/or controlled financial institutions with original charters 3. Constitutional Commissions and the judiciary [2 (c)]

Covered Employee:
SSS 1. Any person who performs services for an employer in which either or both mental and physical efforts are used and who received compensation for such services, where there is an employer-employee relationship; 2. A self-employed person shall be both employee and employer at the same time [8 (d)] 3. Sanggunian Officials [sec. 2(d)] GSIS 1. Any person, receiving compensation while in the service of an employer as defined herein, whether by election or appointment, irrespective of status of appointment 2. Barangay officials

Dependents:
SSS 1. Spouse Legal spouse entitled by law to receive support [8 (e) (1)] 2. Child a. Legitimate b. legitimated c. Legally adopted GSIS 1. Spouse Legitimate and dependent for support 2. Child a. Legitimate b. legitimated c. Legally adopted

d. Illegitimate child who is unmarried, and not gainfully employed and has not reached 21 years of age or he is congenitally incapacitated or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally; [8(e)(2)] 3. Parent Who os receiving regular support from the member. [8(e)(3)]

d. illegitimate who is unmarried, not gainfully employed, not over the age of majority, or is over the age of majority but incapacitated and incapable of self-support due to a mental or physical defect acquired prior to age of majority; 3. Parents legitimate parents dependent upon the member for support

Beneficiaries:
SSS 1. Primary a. Dependent spouse until he or she remarries b. Dependent legitimate, legitimated, or legally adopted, and illegitimate children, provided, that the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated, or legally adopted children: 2. Secondary Dependent parents GSIS 1. Primary a. Legal dependent spouse until he/ she remarries and b. The dependent children 2. Secondary a. The dependent parents and b. Subject to the restrictions on dependent children, the legitimate descendants

3. Others In the absence of all the foregoing, any other person designated by the covered employee as secondary beneficiary. [8(k) and 15

Coverage
SSS Compulsory a. Employees not over 60 years of age and their employers; [9 (a)] b. Domestic helpers whose monthly income shall not be less than Php 1000 a month. [9 (a)]. c. Self-employed persons including but not limited to: Self-employed professionals Partners and single proprietors of businesses Actors, actresses, directors, scriptwriters and news correspondents Professional athletes, coaches, trainers and jockeys Individual farmer and fishermen [9-A] Voluntary 1. Filipinos recruited by foreign-based employers for employment abroad [9 (c) ] 2. Spouses who devote full time to managing the household and family affairs, unless they are also engaged in other vocation or employment which is subject to mandatory coverage [9(b)] GSIS Compulsory All employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status, Except: a. members of the armed forces of the Philippines and the Philippine National Police, subject to the condition that they must settle first their financial obligation with the GSIS, and b. Contractuals who have no employer and employee relationship with the agencies they serve. c. Members of the judiciary and constitutional commissions who shall have life insurance only.

3. Employees separated from employment may continue to pay contributions to maintain his right to full benefits. 4. Self-employed with no income (11-A) By Agreement Any foreign government, international organization, or their wholly-owned instrumentality employing workers in the Philippines, may enter into an agreement with the Philippine government for the inclusion of such employees in the SSS except those already covered by their respective civil service retirement systems. Excluded employment: 1. Employment purely casual and not for the purpose of occupation or business of the employer 2. Service performed on or in connection with an alien vessel by an employee if he is employed when such vessel is outside the Philippines. 3. Service performed in the employ of the Philippine government or instrumentality or agency thereof. 4. Service performed in the employ of a foreign government, international organization, or their wholly owned instrumentality; 5. Services performed by temporary employees which may be excluded by regulation of the commission.

Effect of separation from employment SSS

a. b. c. d. 1. Compulsory Covered Employee His employers contribution on his account and his obligation to pay contribution arising from that employment shall cease at the end of the month of separation Employee shall be credited with all contributions paid on his behalf and entitled to benefits according to the provisions of this Act. He may, however, continue to pay the total contributions to maintain his right to full benefit. 2. Effect of Interruption of Business or professional Income a. If the self-employed realizes no income in any given month, he shall not be required to pay contributions for that month. b. c. He may, however, be allowed to continue paying contributions under the same rules and regulations applicable to separated employee member;

GSIS
- A member separated from the service shall continue to be a member, and shall be entitled to whatever benefits he has qualified to in the event of any contingency compensable under this act.

Provided that no retroactive payment of contributions shall be allowed other than as prescribed under section 22-A hereof.

Reporting Requirements
SSS Each Employer shall immediately report to the SSS names, ages, civil status, occupations, salaries and dependents of all his employees who are subject to compulsory coverage; [24 (a)] Self-employed Member Each covered self-employed person, shall within 30 days from the first day he started the practice of his profession or business operations, register and report to the SSS his name, age, civil status, and occupation, average monthly net income and his dependents. GSIS The employer shall report to the GSIS the names of all its employees, their corresponding employment status, positions, salaries and such other pertinent information, including subsequent changes therein, if any, as may be required by the GSIS.

Funding
SSS Employees contribution Employers contribution GSIS Employer contribution Member contribution Government guarantees the fulfillment of the obligations of the GSIS to its members as and when they fall due.

Amount based on salary bracket Compensation- all actual remuneration for employment, including the mandated cost of living allowance, as well as the cash value of any remuneration paid in any medium other than cash except that part of the remuneration received during the month in excess of the maximum salary credit as provided under sec. 18 [8(f)]

Effect of non-remittance
SSS Where an employer refuses or neglects to pay the same shall be collected by the SSS in GSIS Government guarantees the fulfillment of the obligations of the GSIS to its members as

the same manner as taxes are made collectible under the National Internal Revenue Code, as amended. Failure or refusal of the employer to pay or remit the contributions herein prescribed shall not prejudice the right of the covered employee to the benefits of the coverage. [22(b)]

and when they fall due.

Benefits
SSS 1. 2. 3. 4. 5. 6. 7. 8. Monthly pension Dependents pension Retirement benefits Death Permanent disability Funeral Sickness Maternity All Members 1. Life Insurance 2. Retirement 3. Permanent disability 4. Temporary disability 5. Survivorship 6. Separation 7. Funeral Judiciary & Constitutional Commissions Life insurance only GSIS

Basis of Claim
SSS 1. 2. 3. 4. Non-work connected disability, sickness Maternity Old Age Death GSIS 1. Non-work connected disability, sickness, death Permanent disability no benefit if due to: a. Grave misconduct b. Notorious negligence c. Habitual intoxication d. Willful intention to kill himself or another 2. Survivorship 3. Separation 4. Unemployment

Prescriptive Period
SSS GSIS

Ten years from the time the right of action accrues obligation created by law (Art. 1144 (2) Civil Code)

Claims for benefits under the GSIS Act, except for life and retirement, shall prescribe after four years from the date of contingency

Benefit protection
SSS 1. Benefits non-transferable paid only to such persons entitled 2. Personal claim/ collection power of attorney in favor of another to collect not recognized except if the beneficiary is physically unable to collect personally 3. Beneficiary who is a national of a foreign country which does not extend benefits to a Filipino residing in the Philippines, or which is not recognized by the Philippines shall not be entitled to receive any benefits; But SS Commission may direct payments without regard to nationality or country of residence if best interest of the SSS will be served TAX =Benefits exempt taxes, fees or charges, not liable to attachments, garnishments, levy, seizures by or under legal or equitable process whether before or after receipt except pay debts. Benefits exempt taxes, assessments, fees or duties of all kinds. 1. Exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies 2. COA disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractyual or otherwise, is in favor of the GSIS. GSIS

FEES No fees to agent, attorney or other person-in-charge of preparation, filing or pursuing claim. Any stipulation to the contrary shall be void. Any member of the Philippine Bar who appears as counsel in any case heard by the SS Commission shall be entitled to 10% of the benefits awarded. Any stipulation to the contrary shall be void.

Exclusivity of Benefits
SSS GSIS Whenever other laws provide similar benefits for the same contingencies covered by this act, The member who qualifies to the benefits shall have the option to choose which benefits will be paid to him. However, if the benefits provided by the law chosen are less than the benefits provided under this act, the GSIS shall pay only the difference.

Dispute settlement
SSS Disputes involving: GSIS Any dispute arising under this act and any other laws administered by the GSIS

a. b. c. d. e.

Coverage Benefits Contributions Penalties Any other matter related thereto. Agency: GSIS Decide the case within 30 days from the receipt of the hearing officers findings and recommendations or 30 days after submission for decision

Agency: Social Security Commission Decided within the mandatory period of 20 days after the submission of evidence

Decision final and executory 15 days after date of notification [5 (b)] Appeals 1. Court of Appeals laws and fact [5 (c)] 2. Supreme Court questions of law. [5 (c)] Appeals 1. Court of Appeals Rule 43 (31) 2. Supreme Court Rule 45 (31) Appeals shall not stay the execution of the order or award unless ordered by the board, CA or SC Execution of Decision Commission may, motu propio or on motion of any interested party, issue a writ of execution to enforce any of its decisions or awards, after it has become final and executory. Execution of Decision When no appeal is perfected and there is no order to stay by the Board, CA, or by the SC, any decision or award of the board shall be enforced and executed in the same manner as the decisions of the RTC|.

RA 8042: "MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT 0F 1995"

Approved on 07 June 1995 and took effect on 15 July 1995. As indicated in its title, the law institutes the policies of overseas employment and establishes a higher standard of protection and promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress. GUARANTEE OF OVERSEAS WORKERS PROTECTION FOR

solidarily liable with the corporation or partnership for the aforesaid claims and damages. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. Three Month's Pay Under RA 8042 The date the employment termination occurred is material. On or after 15 July 1995, the law to apply is RA 8042. Under Section 10 of RA 8042, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is LESS. VENUE A criminal action arising from illegal recruitment shall be filed with the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. The court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. PRESCRIPTIVE PERIODS Illegal recruitment cases under this Act shall prescribe in five (5) years; provided, however, That illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. (Sec. 12, R.A. 8042) PROHIBITED ACTS IN THE RECRUITMENT AND PLACEMENT OF WORKERS UNDER THE LABOR CODE ARE RETAINED UNDER THE MIGRANT WORKERS ACT WITH THE ADDITION OF THE FOLLOWING: 1. Failure to deploy employee without valid reason 2. Failure to reimburse expenses incurred in connection with his documentation and processing in cases that deployment did not take place DIFFERENT FUNDS CREATED UNDER THE LAW: 1. 2. 3. 4. Repatriation fund Loan Guaranty fund Legal Assistance fund Congressional Migrant Workers Scholarship fund

The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee for the protection of the receiving country of the rights of overseas Filipino workers: 1. It has existing labor and social laws protecting the rights of migrant workers; 2. It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; 3. It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and, 4. It is taking positive, concrete measures to protect the rights of migrant workers. JURISDICTION 1. NLRC Money Claims - the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, 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. 2. POEA The POEA retains original and exclusive jurisdiction to hear and decide: 1. all cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and 2. disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers. LIABILITIES The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. 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

GOVERNMENT AGENCIES MOBILIZED: 1. DFA 2. DOLE 3. POEA 4. OWWA

REPUBLIC ACT NO. 7877

AN ACT DECLARING SEXUAL HARASSMENT UNLAWFUL IN THE EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT,A ND FOR OTHER PURPOSES DECLARATION OF POLICY.
- The State shall: 1. value the dignity of every individual, enhance the development of its human resources, 2. guarantee full respect for human rights, uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. - Towards this end, all forms of sexual harassment in the employment, education or training environment are hereby declared unlawful. - The law punishes sexual harassment if the same is: work-related; education-related; training-related WORK, EDUCATION OR TRAINING-RELATED SEXUAL HARASSMENT DEFINED. - When work, education or training related sexual harassment is committed: a. By an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another b. In a work or training or education environment c. Demands, Requests or otherwise Requires any sexual favor from the other regardless of whether the demand, request or requirement for submission is accepted by the object of said act. A. in a work-related environment, sexual committed when: or employment harassment is

3. The above acts would result in an intimidating, hostile or offensive environment for the employee. B. in an education or training environment, sexual harassment is committed: 1. against one who is under the care, custody or supervision of the offender; 2. against one whose education, training, apprenticeship or tutorship is entrusted to the offender; 3. when the sexual favor is made a condition to the giving of a passing grade, or the granting honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges or considerations; 4. when the sexual advances result in an intimidating, hostile or offensive environment for the result, trainee or apprentice. - Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed shall also be held liable under this Act. DUTY OF THE EMPLOYER OR HEAD OF OFFICE IN A WORK-RELATED, EDUCATION OR TRAINING ENVIRONMENT. - It is the duty of the Employer or Head of Office in a Work-related, Education or Trainings Environment. 1. to prevent or deter the commission of acts of sexual harassment and, 2. 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:

1. 2. 3.

(a)

Promulgate appropriate rules and regulations in consultation with and jointly 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 shall include, among others, (a) guidelines on proper decorum in the workplace and educational or training institutions.

1. the sexual favor is made as a condition in the hiring or in the employment, reemployment 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 any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; 2. The above acts would impair the employees rights and privileges under existing labor laws;

(b)

The creation of 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, teachers, 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.

and discrimination, and other conditions prejudicial to their development; 2. provide sanctions for their commission and 3. carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination. - The State shall intervene on behalf of the child when: 1. the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or 2. when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same. - The best interests of children shall be the paramount consideration in all actions concerning them - Every effort shall be exerted to promote the welfare of children and enhance their opportunities for a useful and happy life. CHILDREN persons below 18 years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition CHILD ABUSE - maltreatment, whether habitual or not, of the child which includes any of the following: 1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; 2. Any act by deeds or words, which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; 3. Unreasonable deprivation of his basic needs for survival, such as food or shelter; or 4. Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development, or in his permanent incapacity or death. "COMPREHENSIVE PROGRAM AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION" - refers to the coordinated program of services and facilities to protect children against: 1. 2. 3. 4. 5. Child prostitution and other sexual abuse; Child trafficking; Obscene publications and indecent shows; Other acts of abuse; and Circumstances which threaten or endanger the survival and normal development of children.

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 thereon. INDEPENDENT ACTION FOR DAMAGES - Nothing in this Act shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action for damages and other affirmative relief. PENALTIES - Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court. PRESCRIPTION - Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years.

REPUBLIC ACT 7610 AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION AND FOR OTHER PURPOSES
POLICY. -It is hereby declared to be the policy of the State to : 1. provide special protection to children from all forms of abuse, neglect, cruelty, exploitation

RULE ON CHILD LABOR Except: Children below fifteen (15) years of age shall not be employed

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 - However, the ff. conditions must be met: that his employment neither endangers his life, safety, health and morals, nor impairs his normal development; that the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education;

Article 108, PD 603 Duty of Employer to Submit Report Article 109, PD 603 Register of Children PROHIBITION DISCRIMINATION. AGAINST CHILD

-No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. (Art. 140 Labor Code)

2. Where a child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential - However the ff. conditions must be met: The employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and approval of the Department of Labour and Employment 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 programme 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 Labour and Employment which shall ensure observance of the above requirements. (RA 7610, as amended by RA 7658) PROHIBITION ON THE EMPLOYMENT OF CHILDREN IN CERTAIN ADVERTISEMENTS.

13TH MONTH PAY LAW (P.D. 851)

SEC. 2. DEFINITION OF CERTAIN TERMS

"THIRTEENTH-MOTH PAY" - shall mean one twelfth (1/12) of the basic salary of an employee within a calendar year; "BASIC SALARY" - include all remunerations or earnings paid by an employer to an employee for services rendered but may not include: 1. cost-of-living allowances 2. profit-sharing payments, and 3. all allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary of the employee at the time of the promulgation of the Decree on December 16, 1975. WHAT CAN BE CONSIDERED AS 13TH MONTH PAY: 1. 2. 3. SEC. 3. Christmas bonus Midyear bonuses Cash bonuses EMPLOYERS COVERED

No person shall employ child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, and violence. (Sec. 14 RA 7610) COMPLIANCE WITH PD 603 - Every employer shall comply with the duties provided for in Articles 108 and 109 of PD 603 (Child and Youth Welfare Code):

- The Decree shall apply to all employers except to: a) Distressed employers, - such as 1. those which are currently incurring substantial losses; or 2. in the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than forty (40%) percent of their normal income for the last two (2) years, subject to the provision of Section 7 of this issuance; b)The Government and any of its political subdivisions, including GOCCs except those corporations operating essentially as private subsidiaries of the Government; c)Employers already paying their employees 13month pay or more in a calendar year of its equivalent at the time of this issuance;

d)Employers of household helpers and persons in the personal service of another in relation to such workers; and e)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. WORKERS PAID ON PIECE-RATE BASIS - refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. "ITS EQUIVALENT" (as used in paragraph c) hereof) shall include: 1. Christmas bonus 2. mid-year bonus 3. profit-sharing payments and 4. other cash bonuses amounting to not less than 1/12th of the basic salary but shall not include cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits. - Where an employer pays less than 1/12th of the employees basic salary, the employer shall pay the difference. SEC. 4. EMPLOYEES COVERED - Except as provided in Section 3 of this issuance, all employees of covered employers shall be entitled to benefit provided under the Decree who are receiving not more than P1,000 a month, regardless of their position, designation or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least one month during the calendar year. WHO ARE EXCLUDED FROM COVERAGE: 1. government employees 2. household helpers 3. employees paid purely on commission basis 4. employees already receiving 13th month pay SEC. 5. OPTION OF COVERED EMPLOYERS - A covered employer may pay one-half of the 13thmonth pay required by the Decree before the opening of the regular school year and the other half on or before the 24th day 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. SEC. 6. SPECIAL FEATURE OF BENEFIT - The benefits granted under this issuance shall not be credited as part of the regular wage of the employees for purposes of determining overtime and premium pay, fringe benefits, as well as premium

contributions to the State Insurance Fund, social security, medicare and private welfare and retirement plans. SEC. 7. EXEMPTION OF DISTRESSED EMPLOYERS - Distressed employers shall qualify for exemption from the requirement of the Decree upon prior authorization by the Secretary of Labor. SEC. 8. REPORT OF COMPLIANCE - Every covered employer shall make a report of his compliance with the Decree to the nearest regional labor office not later than January 15 of each year. SEC. 9. 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. SEC. 10. PROHIBITION AGAINST REDUCTION OR ELIMINATION OF BENEFITS - Nothing herein shall be construed to authorize any employer to eliminate, or diminish in any way, supplements, or other employee benefits or favorable practice being enjoyed by the employee at the time of promulgation of this issuance. PRIVATE SCHOOL TEACHERS - Private school teachers, including faculty members of colleges and universities, are entitled to 1/12 of their annual basic pay regardless of the number of months they teach or are paid within a year. OT PAY - Overtime pay, earnings and other remunerations which are not part of the basic salary shall not be included in the computation of the 13-month pay.

RA 8042: "MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT 0F 1995"

Approved on 07 June 1995 and took effect on 15 July 1995. As indicated in its title, the law institutes the policies of overseas employment and establishes a higher standard of protection and promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress. GUARANTEE OF PROTECTION FOR OVERSEAS WORKERS The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee for the protection of the receiving country of the rights of overseas Filipino workers: 1. It has existing labor and social laws protecting the rights of migrant workers; 2. It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers;

3. It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and,It is taking positive, concrete measures to protect the rights of migrant workers. JURISDICTION 1. NLRC Money Claims - the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, 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. 2. POEA The POEA retains original and exclusive jurisdiction to hear and decide: 3. all cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and 4. disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers. LIABILITIES The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. 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. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. Three Month's Pay Under RA 8042

Under Section 10 of RA 8042, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is LESS. VENUE A criminal action arising from illegal recruitment shall be filed with the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. The court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. PRESCRIPTIVE PERIODS Illegal recruitment cases under this Act shall prescribe in five (5) years; provided, however, That illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. (Sec. 12, R.A. 8042) PROHIBITED ACTS IN THE RECRUITMENT AND PLACEMENT OF WORKERS UNDER THE LABOR CODE ARE RETAINED UNDER THE MIGRANT WORKERS ACT WITH THE ADDITION OF THE FOLLOWING: 1. Failure to deploy employee without valid reason 2. Failure to reimburse expenses incurred in connection with his documentation and processing in cases that deployment did not take place DIFFERENT FUNDS CREATED UNDER THE LAW: 1. 2. 3. 4. Repatriation fund Loan Guaranty fund Legal Assistance fund Congressional Migrant Workers Scholarship fund

GOVERNMENT AGENCIES MOBILIZED: 1. 2. 3. 4. DFA DOLE POEA OWWA

The date the employment termination occurred is material. On or after 15 July 1995, the law to apply is RA 8042. POEA RULES & REGULATIONS GOVERNING THE RECRUITMENT & EMPLOYMENT OF LANDBASED OVERSEAS WORKERS (2002) PART II: LICENSING AND REGULATION Qualifications for those who may be permitted to engage in the business of recruitment and placement of Filipino workers: Filipino citizens, partnerships or corporations at least seventy five percent (75%) of the authorized capital stock of which is owned and controlled by Filipino citizens; A minimum capitalization of Two Million Pesos (P2,000,000.00) in case of a single proprietorship or partnership and a minimum paid-up capital of Two Million Pesos (P2,000,000.00) in case of a corporation; Provided that those with existing licenses shall, within four years from effectivity hereof, increase their capitalization or paid up capital,

as the case may be, to Two Million Pesos (P2,000,000.00) at the rate of Two Hundred Fifty Thousand Pesos (P250,000.00) every year. Those not otherwise disqualified by law or other government regulations to engage in the recruitment and placement of workers for overseas employment. Disqualifications to engage in the business of recruitment and placement of Filipino workers overseas: Travel agencies and sales agencies of airline companies; Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency; Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency; Persons, partnerships or corporations which have derogatory records, such as but not limited to the following: 1) Those certified to have derogatory record or information by the National Bureau of Investigation or by the AntiIllegal Recruitment Branch of the POEA; 2) Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exists; 3) Those convicted for illegal recruitment or other related cases and/or crimes involving moral turpitude; and 4) Those agencies whose licenses have been previously revoked or cancelled by the Administration for violation of RA 8042, PD 442 as amended and their implementing rules and regulations as well as these rules and regulations. All applicants for issuance/renewal of license shall be required to submit clearances from the National Bureau of Investigation and Anti-illegal Recruitment Branch, POEA, including clearances for their respective officers and employees. Any official or employee of the DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of R.A. 8042, otherwise known as Migrant Workers and Overseas Filipino Act of 1995 and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity; and Persons or partners, officers and Directors of corporations whose licenses have been previously cancelled or revoked for violation of recruitment laws. REQUIREMENTS FOR LICENSING Every applicant for license to operate a private employment agency shall submit a written application together with the following requirements: A certified copy of the Articles of Incorporation or of Partnership duly registered with the Securities and Exchange Commission (SEC), or Certificate of Registration of the firm or business name with the Department of Trade and Industry (DTI); Proof of financial capacity: verified income tax returns for the past two (2) years and/or a savings account certificate showing a maintaining balance of not less than P500,000.00. Proof of marketing capability: 1) A duly executed Special Power of Attorney and/or a duly concluded. Recruitment/ Service Agreement; 2) Manpower request(s) or visa certification from new employer(s)/ principal(s) for not less than one hundred (100) workers; and 3) Certification from Pre-Employment Services Office of POEA on the existence of new market. Clearances of all members of the applicant agency from the National Bureau of Investigation (NBI) and other government agencies as may be required; appropriate clearance in case of persons with criminal cases; provided that where the member or partner concerned is a foreigner, clearance from his country of origin shall be required. A verified undertaking stating that the applicant: 1) Shall select only medically and technically qualified recruits; 2) Shall assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of the license; 3) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriations; 4) Shall guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of the recruited workers; 5) Shall assume full and complete responsibility for all acts of its officials, employees and representatives done in connection with recruitment and placement; 6) Shall negotiate for the best terms and conditions of employment; 7) Shall disclose the full terms and conditions of employment to the applicant workers; 8) Shall deploy at least 100 workers to its new markets within one (1) year from the issuance of its license; 9) Shall provide orientation on recruitment procedures, terms and conditions and other relevant information to its workers and provide facilities therefor; and 10) Shall repatriate the deployed workers and his personal belongings when the need arises. [For the purpose of compliance with item (1), the agency may require the worker to undergo trade testing and medical examination only after the worker has been pre-qualified for employment.] In case of corporation or partnership, verified undertaking by its officers, directors, partners that they will be jointly and severally liable with the company over claims arising from employer-employee relationship. Proof of possession by the sole proprietor, partner or chief executive officer, as the case may be, of a bachelors degree and three years business experience. List of all officials and personnel involved in the recruitment and placement, together with their appointment, biodata and two (2) copies of their passport-size pictures as well as their clearances from the National Bureau of Investigation and the Anti-illegal Recruitment Branch of the Administration. Copy of contract of lease or proof of building ownership, indicating the office address. Proof of publication of notice of the application with the names of the proprietor, partners, incorporators and officers. Certificate of attendance of owner and/or chief executive officer in a pre-application seminar conducted by the Administration. ACTION UPON THE APPLICATION FOR LICENSE -- Within fifteen (15) calendar days from receipt of an application with complete requirements including proof of payment of the filing fee of P10,000.00, the Administration shall evaluate the pertinent documents, inspect the offices and equipment and determine whether or not to grant or deny the application. Denial of an application will result in the forfeiture of the filing fee. Payment of Fees and Posting of Bonds:

License fee of P50,000.00. Escrow Agreement in the amount of P1,000,000.00, confirmation of escrow deposit with an accredited reputable bank and a surety bond of P100,000.00 from a bonding company acceptable to the Administration and accredited with the Insurance Commission. Agencies with existing licenses shall, within four years from effectivity hereof, increase their Escrow Deposit to One Million Pesos. Purposes for the posting of bonds and escrow agreement: shall answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license, and/or accreditation and contracts of employment; shall likewise guarantee compliance with the provisions of the Code and its implementing rules and regulations relating to recruitment and placement, the Rules of the Administration and relevant issuances of the Department and all liabilities which the Administration may impose; and the surety bonds shall include the condition that notice to the principal is notice to the surety and that any judgment against the principal in connection with matters falling under POEAs/NLRCs jurisdiction shall be binding and conclusive on the surety. The surety bonds shall cover the validity period of the license. VALIDITY OF THE LICENSE Four (4) years from the date of issuance unless sooner cancelled, revoked or suspended for violation of applicable law, rules and other pertinent issuances. Such license shall be valid only at the place/s stated therein and when used by the licensed person, partnership or corporation. EFFECT UPGRADING OF SINGLE PROPRIETORSHIP OR PARTNERSHIPS INTO CORPORATION -- The approval of merger, consolidation or upgrading shall automatically revoke or cancel the licenses of the single proprietorships, partnerships or corporations so merged, consolidated or upgraded. PURPOSE FOR THE UPGRADING To respond adequately to developments/changes in the international labor market and to enable them to better comply with their responsibilities arising from the recruitment and deployment of workers overseas. NON-EXPIRATION OF LICENSE -- Where the license holder has made timely and sufficient application for renewal, the existing license shall not expire until the application shall have been finally determined by the POEA. For this purpose, an application shall be considered sufficient if the applicant has substantially complied with the requirements for renewal. REPLENISHMENT OF SURETY BONDS/DEPOSIT IN ESCROW Within fifteen (15) calendar days from date of receipt of notice from the POEA that the bonds/deposit in escrow, or any part thereof had been garnished, the agency shall replenish the same. Failure to replenish such bonds/deposit in escrow within the said period shall cause the suspension of the license. RELEASE OF DEPOSIT IN ESCROW A licensed agency which voluntarily surrenders its license shall be entitled to the release of the deposit in escrow, only after posting a surety bond of similar amount valid for four (4) years from expiration of license and submission of the necessary clearances from the National Labor Relations Commission (NLRC) and the Administration. ADVERTISEMENT FOR MANPOWER POOLING Licensed agencies may advertise for manpower pooling without prior POEA approval provided that the ad indicates the following: name, address and POEA license number of the agency no fees will be collected from the applicants; name and worksite of prospective principal; and skill categories and qualification standards PART III: PLACEMENT BY THE PRIVATE SECTOR VERIFICATION OF DOCUMENTS Made at the worksite prior to the registration with the POEA which includes the review of the master employment contract, its capability to hire workers at the applicable rates and at a desirable working conditions that are in conformity with the minimum standards prescribed by POEA and with the labor laws of the host country. DOCUMENTARY REQUIREMENTS FOR VERIFICATION Also submitted for registration special power of attorney issued to the licensed Philippine agency, or recruitment agreement or service agreement; master employment contract which incorporates the minimum provisions of employment contracts of land-based workers (wages, benefits, just/authorized causes for termination, etc.) manpower request indicating the position and salary of the workers to be hired; valid business license, registration certificate, or equivalent document. REGISTRATION OF FOREIGN PLACEMENT AGENCIES May be registered as principals if they are authorized to operate as such in their respective countries and subject to prescribed guidelines by the POEA. VALIDITY OF REGISTRATION Valid for a maximum of 4 years, unless sooner revoked or cancelled by POEA on the following grounds: expiration of the principals business license; upon written mutual agreement by the parties to pre-terminate the agreement; false documentation or misrepresentation in connection with the application for registration; final judgment in a disciplinary action against the foreign principal.

RENEWAL OF REGISTRATION Upon request by the agency provided that the documents required for initial registration are still valid. OPEN REGISTRATION A foreign principal that acts as a direct employer may be registered to more than one Philippine agency provided that: there is a uniform compensation package with the agency; principal has a verified job order of at least 50 workers; the principal must have hired at least 50 workers within a period of 1 year immediately preceding the election. DUAL REGISTRATION A principal that is licensed to operate as foreign placement agency by its government may be registered to a maximum of two Philippine agencies provided that the above conditions for open registration are met. TRANSFER OF REGISTRATION Allowed provided that: the compensation package previously approved by the POEA shall be maintained the transferee shall assume full and complete responsibility of all contractual obligations of the principal to its workers originally recruited and processed by the former agency. ACTION ON APPLICATION FOR REGISTRATION OF PRINCIPALS WITH OUTSTANDING OBLIGATIONS Shall not prevent the POEA from acting on the request for registration, even if there is a pending conciliation. PART IV: PLACEMENT BY THE ADMINISTRATION HIRING THROUGH THE ADMINISTRATION Primarily on government-to-government arrangements and shall service the hiring of foreign government instrumentalities; shall also recruit for foreign employers in such sectors as the policy may dictate. Recruitment and placement: Activities shall include but not limited to interview and selection, referral to medical examination, processing of contracts, assistance in securing of passport and appropriate visas, pre-employment orientation, pre-departure orientation and travel arrangements. GUARANTEE TRUST FUND Established for all workers hired on a government-to-government arrangement for the purpose of covering monetary claims of the workers arising from breach of contractual obligations. PART V: EMPLOYMENT STANDARDS FORMULATION OF EMPLOYMENT STANDARDS The POEA shall determine, formulate and review employment standards in accordance with prevailing market realities/conditions. OFFSETTING BENEFITS Considered in lieu of free transportation to and from the worksite and free food and accommodation. FREEDOM TO STIPULATE ON THE TERMS AND CONDITIONS OF THE EMPLOYMENT Parties shall have the freedom to stipulate other terms and conditions provided that these are not contrary to law, morals and public policy. DISCLOSURE OF TERMS AND CONDITIONS OF EMPLOYMENT The agency and the worker shall fully disclose all relevant information in relation to the recruitment and employment. The whole employment package should be beneficial to the workers and not contrary to law, morals and public policy. PART VI: RECRUITMENT VIOLATION & RELATED CASES JURISDICTION ON VIOLATIONS OF RECRUITMENT RULES AND REGULATIONS The POEA shall have original and exclusive jurisdiction over administrative cases, involving and arising out of the CLASSIFICATION OF OFFENSES AND THEIR PENALTIES: violations of recruitment rules and regulations including refund of fees collected from workers and violations of the conditions for issuance of license to recruit workers. GROUNDS FOR IMPOSITION OF ADMINISTRATIVE SANCTIONS: Section 6, R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995) Section 2, Rule I, Part VI of the POEA Rules and Regulations 2002 VENUE TO FILE COMPLAINTS Recruitment violation cases may be filed with the POEA Adjudication Office or with the POEA Regional Centers / Regional Extension Units which exercise territorial jurisdiction over the place where the complainant was recruited.

WHO MAY FILE COMPLAINT Any person prejudiced by the commission of any violation of the Labor Code, POEA Rules and other issuances relating to recruitment However, the POEA, on its own initiative, may conduct proceedings based on reports of the violation of POEA Rules and Regulations and other issuances on overseas employment subject to preliminary evaluation. PRELIMINARY HEARING It is set to allow parties to voluntarily settle their differences. EFFECTS OF WITHDRAWAL OF COMPLAINT / DESISTANCE shall not bar the POEA from proceeding with the investigation of the recruitment violations, and may resolve the case on the merits and impose penalties. RESOLUTION OF CASES Within 90 days from the filing of the case, the adjudicator must submit his findings and recommendations in the form of a draft order. ORDER OF PREVENTIVE SUSPENSION PENDING INVESTIGATION When issued by the POEA, the adjudicator shall, within 60 days, submit his findings and recommendations in the form of a draft order. Light offenses - Penalties: 1st offense reprimand; 2nd offense suspension of license for 2-6 months; 3rd offense cancellation of license. Alternative penalty: fine of P10,000 per month of suspension. In determining the period of suspension, mitigating and aggravating circumstances shall be considered. for the owner, partner or officers of any licensed agency to become a member of the Board of any corporation or partnership engaged in the management of a travel agency; inducing or attempting to induce an already employed worker to transfer from or leave his employment for another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;influencing or attempting to influence any person or entity not to employ any worker who has not applied for employment through his agency; failure to deploy a worker within the prescribed period without valid reasons; coercing workers to accept prejudicial arrangements in exchange for certain benefits that rightfully belong to the workers; disregard of orders, notices and other legal processes issued by the POEA; failure to submit reports related to overseas recruitment and employment within the specified time, as may be required by POEA; and violation of other pertinent provisions of the Labor Code and other relevant laws, rules and guidelines for overseas employment. Less serious offenses - Penalties: 1st offense suspension of license for 2-6 months; 2nd offense cancellation of license. Alternative penalty: fine of P10,000 per month of suspension. In determining the period of suspension, mitigating and aggravating circumstances shall be considered. charging before employment is obtained for applicant worker; collecting any fee from a worker without issuing the appropriate receipt; misrepresentations in connection with recruitment and placement of workers; obstructing or attempting to obstruct inspection by the Secretary, the POEA, or their duly authorized representatives altering to the prejudice of the worker, employment contracts approved and verified by DOLE; withholding or denying travel and documents for considerations other than those authorized by laws engaging in recruitment activities in places other than that specified in the license without POEA authorization; appointing agents or employees without POEA approval; falsifying travel documents of applicant worker in relation to overseas recruitment activities; deploying workers whose documents were not processed by the POEA; deploying workers to principals not registered by the POEA; withholding of workers salaries or remittances without justifiable reasons; allowing persons who are otherwise disqualified to participate in the overseas employment program under existing laws, rules and regulations to participate in the management and operations of the agency; failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the workers fault; failure to comply with the undertaking to provide Pre-Departure Orientation Seminars to Workers; non-compliance with any other undertaking in connection with the issuance or renewal of the license. Serious offenses - Penalty: cancellation of license. deployment of underage workers; misrepresentation in securing license or renewal; recruitment in jobs harmful to public health or morality; transfer of ownership of a single proprietorship; charging or collection of placement fees for deployment to countries where charging or collection is prohibited; and charging or collection of excessive placement fees. JURISDICTION ON APPEAL OR PETITIONS FOR REVIEW The Secretary of Labor and Employment shall have exclusive jurisdiction to act on appeal or petition for review of cases decided by the POEA, which should be filed within 15 calendar days from receipt of the decision. Failure to appeal within the reglementary period shall render the decision of the POEA final and executory. The appeal will stay the execution upon posting of a supersedeas bond, except only where the penalty imposed is suspension for 12 months or more or cancellation of

license which shall be immediately executory. The appeal shall be resolved within 60 days from the receipt of transmittal of the entire records of the case. EXECUTION OF DECISIONS After the Order has become final and executory, the POEA shall issue a writ of execution upon motion or on its own initiative. PART VII: DISCIPLINARY ACTION CASES JURISDICTION ON DISCIPLINARY ACTION CASES The POEA shall exercise original and exclusive jurisdiction to hear and decide disciplinary action cases against migrant workers, foreign employers and principals that are administrative in character, which shall be filed with the Adjudication Office of the POEA. GROUNDS FOR DISCIPLINARY ACTION AGAINST PRINCIPALS OR EMPLOYERS: default on its contractual obligations to the migrant worker and/or to its Philippine agent; gross violation of laws, rules and regulations on overseas employment; gross negligence leading to serious injury or illness or death of the worker; grave misconduct; conviction of an offense involving moral turpitude; any other cases analogous to the foregoing. RESOLUTION OF THE DISCIPLINARY ACTION CASES Within 60 days, the adjudicator shall submit his findings and recommendations in the form of draft order. DISQUALIFICATION OF FOREIGN EMPLOYERS/PRINCIPALS Foreign employers and principals against whom the penalty of suspension or disqualification had been imposed through an order, decision or resolution shall be disqualified from participating in the overseas employment program unless cleared by the POEA or the penalty imposed is lifted.

GROUNDS FOR DISCIPLINARY ACTION COMMISSION BY A MIGRANT WORKER: Pre-employment offenses Using or submitting false information or documents for purposes of job application or employment. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agencies. Offenses during employment Commission of a felony or a crime punishable by the Philippine laws and by the laws of the host country. Unjustified breach of employment contract. Embezzlement of company funds or monies and/or properties of a fellow worker entrusted for delivery to kin or relatives in the Philippines, and Violations of the sacred practices of the host country. JURISDICTION OF APPEALS/PETITION FOR REVIEW The Secretary shall have the exclusive jurisdiction to act on appeals/petition for review of disciplinary action cases decided by the POEA, which must filed within the reglementary period of 15 calendar days.

Title:Labor Advisory on Retirement Pay Law SUbject: Guidelines for the Effective Implementation of RA 7641, The Retirement Pay Law
A. 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 controlled corporations, if they are covered by the Civil Service Law and its regulations. B. 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 provide for broader inclusions. Evidently, the law expanded the concept of one half month salary from the usual one month salary divided by two. In reckoning the length of service, the period of employment with the same employer before the effectivity date of the law on January 7, 1993 shall be included. C. Substitute Retirement Plan Qualified workers shall be entitled to the retirement benefit under RA 7641 in the absence of any individual or collective agreement, company policy or practice. In case there is such an agreement, policy or practice providing retirement benefit, which is equal or superior to that which is provided in the Act, said agreement, policy or practice will prevail. As provided in RA 7742, a private employer shall have the option to treat the coverage of the PAG IBIG Fund as a substitute retirement benefit for the employee concerned within the purview of the Labor Code as amended; provided, such option does not in any way contravene an existing collective bargaining agreement or other employment agreement. Thus, the PAG IBIG Fund can be considered as a substitute retirement plan of the company for its employees provided that such scheme offers benefits which are more than or at least equal under RA 7641. If said scheme provides less than what the employee is entitled to under RA 7641, the employer is liable to pay the difference. If both the employee and the employer contribute to a retirement plan, only the employers contribution and its increments shall be considered for full or partial compliance with the benefit under RA 7641. On the other hand, where the employee is the lone contributor to the PAG IBIG Fund, the employer being exempted from its coverage, he employer is under obligation to give his employee retirement benefits under the ACT. (Sgd) LEONARDO A. QUISUMBING

Guidelines on the Right to Organize of Government Employees Executive Order 180

I. Coverage Section 1. This Executive Order applies to all employees of all branches, subdivisions, instrumentalities and agencies of the Government, including government owned or controlled corporations with original charters. For this purpose, employees covered by this Executive Order shall be referred to as government employees. Section 2. All government employees can form, join or assist employees organization for their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor management committees, works councils and other forms of workers participation schemes to achieve the same objectives. Section 3. High level employees whose functions are normally considered as policy making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank and file employees.

Section 4. The Executive Order shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards. II. Protection of the Right to Organize Section 5. Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees organizations or participation in the normal activities of their organization. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees organizations. Section 6. Government authorities shall not interfere in the establishment, functioning or administration of government employees organizations through acts designed to place such organizations under the control of government authority. III. Registration of Employees Organization Section 7. Government employees organizations shall register with the Civil Service Commission and the Department of Labor and Employment. The application shall be filed with the Bureau of Labor Relations of the Department which shall process the same in accordance with the provisions of the Labor Code of the Philippines, as amended. Applications may also be filed with the Regional Offices of the Department of labor and Employment which shall immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt thereof. Section 8. Upon the approval of he application, a registration shall be issued to the organization recognizing it as a legitimate employees organization with the right to represent its members and undertake activities to further and defend its interests. The corresponding certificates of registration shall be jointly approved by the Chairman of the Civil Service Commission and Secretary of Labor and Employment. IV. Sole and Exclusive Employees Representatives Section 9. The appropriate organization unit shall be the employers unit consisting of rank and file employees unless circumstances otherwise require. Section 10. A duly registered employees organization having the support of the majority of the employees in the appropriate organizational unit shall be designated as the sole and exclusive representative of the employees. Section 11. A duly registered employees organization shall be accorded voluntary recognition upon showing that no other employees organization is registered or is seeking registration, based on records of the Bureau of Labor Relations, and that the said organization has the majority support of the rank and file employees in the organizational unit. Section 12. Where there are two or more duly registered employees organization in the appropriate organizational unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a certification election and shall certify the winner as the exclusive representative of the rank and file employees in said organization unit. V. Terms and Conditions of Employment in government Services Section 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees organizations and appropriate government authorities. VI. Peaceful concerted Activities and Strikes Section 14. The Civil Service Law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress. VII. Public Sector Labor Management Council Section 15. A Public Sector Labor Management Council, hereinafter referred to as the Council, is hereby constituted to be composed of the following: 1. Chairman, Civil Service Commission Chairman Secretary, Department of Labor and Employment Vice Chairman 2. Secretary, Department of Finance Member 3. Secretary, Department of Justice Member 4. Secretary, Department of Budget and Management Member VIII. Settlement of Disputes

Section 16. The Civil Service and labor laws and procedures, wherever applicable, shall be followed n the resolution of complaints, grievances and cases involving government employee. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, t he parties may jointly refer the dispute to the Council, for appropriate action. IX. Effectivity Section 17. This Executive Order shall take effect immediately. Done in the City of Manila, this 1 st day June, in the year of Our Lord, nineteen hundred and eighty seven. (Sgd.) CORAZON C. AQUINO