78498741 Ateneo Labor Law Reviewer Part 1

8/13/2019 78498741 Ateneo Labor Law Reviewer Part 1

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LABOR LAWVicente S.E. Veloso

A. FUNDAMENTAL PRINCIPLES AND POLICIES

1. Constitutional Provisions

1.1. Art II, S!s. ", 1#, 11, 1$, 1%, 1&, '#

Declaration of Principles and State Policies

Section 9.The State shall promote a just and dynamic social order thatwill ensure the prosperity and independence of the nation and free the peoplefrom 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 ofnational development.

Section 11. The State values the dignity of every human person andguarantees full respect for human rights.

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual,intellectual, and social well-being. It shall inculcate in the youth patriotism andnationalism, and encourage their involvement in public and civic affairs.

Section 14. The State recognizes the role of women in nation-building,and shall ensure the fundamental equality before the law of women and men.

Section 18.The State affirms labor as a primary social economic force. Itshall protect the rights of worers and promote their welfare.

Section 20.The State recognizes the indispensable role of the privatesector, encourages private enterprise, and provides incentives to neededinvestments.

1.'. Art III, S!s. 1, %, &

Bill of Rights

Section 1.!o person shall be deprived of life, liberty, or property withoutdue process of law, nor shall any person be denied the equal protection of thelaws.

Section 4.!o law shall be passed abridging the freedom of speech, ofe"pression, or of the press, or the right of the people peaceably to assemble andpetition the government for redress of grievances.

Section 8. The right of the people, including those employed in thepublic and private sectors, to form unions, associations, or societies for purposesnot contrary to law shall not be abridged.

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1.$. Art. (III, S!s. 1, ', $, 1%

Section 1. The #ongress shall give highest priority to the enactment ofmeasures that protect and enhance the right of all the people to human dignity,reduce social, economic, and political inequalities, and remove cultural inequities

by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, anddisposition of property and its increments.

Section 2. The promotion of social justice shall include the commitmentto create economic opportunities based on freedom of initiative and self-reliance.

Social Justice and Human Rights

N.B.:

1. it is incorrect to say that self-organization is limited in purpose to CBA.

2. it is incorrect to say that ambulant, intermittent and itinerant worers, self-employedpeople, rural worers and those without any definite employers !who may form labororganizations for their mutual aid and protection"# do not ha$e the right to self-organization. %hey too are co$ered by the in&unction that 't shall be unlawful for anyperson to restrain, coerce, discriminate against or unduly interfere with (said)employees in their e*ercise of the right to self-organization". (at least on concertedacti$ities)

------------

+elf-organization is a fundamental right guaranteed by the hilippine Constitution and the aborCode. mployees ha$e the right to form, &oin or assist labor organizations for the purpose of collecti$ebargaining or for their mutual aid and protection. %he constitutional right to self-organization is betterunderstood in the conte*t of '/ Con$ention 0o. (3reedom of Association and rotection of 4ight to/rganize), to which the hilippines is a signatory. !UST Faculty Union v. Bitonio, Jr., 5.4. 0o. 161267,0o$ember 18, 1999, 61 +C4A 17, Panganiban, :.# ;orers and employers, without distinctionwhatsoe$er, shall ha$e the right to establish and, sub&ect only to the rules of the organization concerned, to

&ob organizations of their own choosing without pre$ious authorization< !Standard Chartered BankEmployees Union NUBE! v. Con"esor, 5.4. 0o. 11=9=, :une 18, 2>>=, =62 +C4A 6>, 62>-621# andthat worers? organizations shall ha$e the right to draw up their constitution and rules and to elect theirrepresentati$es in full freedom, free from any interference from public authorities. !UST Faculty Union v.Bitonio, Jr., supra#

Labor

Section 3. The State shall afford full protection to labor, local andoverseas, organized and unorganized, and promote full employment and equalityof employment opportunities for all.

It shall guarantee the rights of all worers to self-organization, collectivebargaining and negotiations, and peaceful concerted activities, including the rightto strie in accordance with law. They shall be entitled to security of tenure,

humane conditions of wor, and a living wage. They shall also participate inpolicy and decision-maing processes affecting their rights and benefits as may

be provided by law.

The State shall promote the principle of shared responsibility betweenworers and employers and the preferential use of voluntary modes in settlingdisputes, including conciliation, and shall enforce their mutual compliancetherewith to foster industrial peace.



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The State shall regulate the relations between worers and employers,recognizing the right of labor to its just share in the fruits of production and theright of enterprises to reasonable returns to investments, and to e"pansion andgrowth.

Women

Section 14. The State shall protect woring women by providing safe andhealthful woring conditions, taing into account their maternal functions, andsuch facilities and opportunities that will enhance their welfare and enable themto realize their full potential in the service of the nation.

'. Civil Co)

Contract of Labor

Article 1700.The relations between capital and labor are not merelycontractual. They are so impressed with public interest that labor contracts must

yield to the common good. Therefore, such contracts are subject to the speciallaws on labor unions, collective bargaining, stries and locouts, closed shop,

wages, woring conditions, hours of labor and similar subjects.

$. La*or Co)

$.1. Arti!l $

Art. 3. Declaration of basic policy.The State shall afford protectionto labor, promote full employment, ensure equal wor opportunities regardless ofse", race or creed and regulate the relations between worers and employers. TheState shall assure the rights of worers to self-organization, collective bargaining,security of tenure, and just and humane conditions of wor.

$.'. Arti!l '11

Art. 211. Declaration of Policy.

$. It is the policy of the State%

a. To promote and emphasize the primacy of free collectivebargaining and negotiations, including voluntary arbitration, mediation andconciliation, as modes of settling labor or industrial disputes&

b. To promote free trade unionism as an instrument for theenhancement of democracy and the promotion of social justice and development&

c. To foster the free and voluntary organization of a strong andunited labor movement&

d. To promote the enlightenment of worers concerning their rightsand obligations as union members and as employees&

e. To provide an adequate administrative machinery for thee"peditious settlement of labor or industrial disputes&

f. To ensure a stable but dynamic and just industrial peace& and

g. a. To ensure the participation of worers in decision andpolicy-maing processes affecting their rights, duties and welfare.

B. To encourage a truly democratic method of regulating the relations between theemployers and employees by means of agreements freely entered into through collective

bargaining, no court or administrative agency or official shall have the power to set or fi"wages, rates of pay, hours of wor or other terms and conditions of employment, e"ceptas otherwise provided under this #ode. '$s amended by Section (, )epublic $ct !o.



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p. 3#oc+ot3 means any temporary refusal of an employer to furnishwor as a result of an industrial or labor dispute.

q. 3,nternal nion !ispte3 includes all disputes or grievancesarising from any violation of or disagreement over any provision of theconstitution and by laws of a union, including any violation of the rights andconditions of union membership provided for in this #ode.

r. 3Stri+e-brea+er&means any person who obstructs, impedes, orinterferes with by force, violence, coercion, threats, or intimidation any peacefulpiceting affecting wages, hours or conditions of wor or in the e"ercise of theright of self-organization or collective bargaining.

s. 3Stri+e area3 means the establishment, warehouses, depots,plants or offices, including the sites or premises used as runaway shops, of theemployer struc against, as well as the immediate vicinity actually used bypiceting striers in moving to and fro before all points of entrance to and e"itfrom said establishment. '$s amended by Section


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penalized in accordance with $rticle (0 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by agroup of three '(2 or more persons conspiring and6or confederating with oneanother in carrying out any unlawful or illegal transaction, enterprise or schemedefined under the first paragraph hereof. Illegal recruitment is deemedcommitted in large scale if committed against three '(2 or more personsindividually or as a group.

c. The Secretary of 4abor and 9mployment or his duly authorizedrepresentatives shall have the power to cause the arrest and detention of suchnon-licensee or non-holder of authority if after investigation it is determined thathis activities constitute a danger to national security and public order or will leadto further e"ploitation of job-seeers. The Secretary shall order the search of theoffice or premises and seizure of documents, paraphernalia, properties and otherimplements used in illegal recruitment activities and the closure of companies,establishments and entities found to be engaged in the recruitment of worers foroverseas employment, without having been licensed or authorized to do so.

see: +ec. 8, 4A >=2

1.'.1. Li!ns vs. Aut5orit6

Art. 13. Definitions.""" """ """

'd2 3#icense3 means a document issued by the 7epartment of 4aborauthorizing a person or entity to operate a private employment agency.

""" """ """

'f2 3Atority3 means a document issued by the 7epartment of4abor authorizing a person or association to engage in recruitment andplacement activities as a private recruitment entity.

N#TES@

$EC$U%T&ENT'N( )*'CE&ENT

Any act of can$assing, enlisting, contracting,transporting, utilizing, hiring, or procuring worers,

And includes referrals, contract ser$ices, promisingor ad$ertising for employment, locally or abroad,whether for profit or not.

*%CENSE ocument issued by / authorizing apersonentity to operate a pri$ate fee-chargingagency !'rt. +c!and d!, C#

'UT-#$%T ocument authorizing a personassociation toengage in recruitment and placement acti$ities asa pri$ate recruitment entity, i.e., not for a fee. !'rt.+"!#

't should be noted that the definition of recruitment and placement" in Art. 16(b), doesnot mae any of the ele$en (11) acts enumerated therein illegalper se. ;hat maes it a case ofillegal recruitment is when any of said recruitment acti$ities are undertaken /y non0licenseesor non0holders o" authority". !'rt. 1a!# +uch that an employee, who introduces an applicantto owner-employer agency, committed an act of referral, a recruitment acti$ity". %here is anillegal recruitment when one gi$es the impression of ha$ing the ability to send a worer abroad.!People vs. Goce, 234 SC$' 415, 416 +667!#

A non-licensee means a person, corporation or entity to which the labor secretary hasnot issued a $alid license or authority to engage in recruitment and placement< or whose licenseor authority has been suspended, re$oed, or cancelled by the /A or the labor secretary. Alicensee authorizes a person or an entity to operate a pri$ate employment agency, while authorityis gi$en to those engaged in recruitment and placement acti$ities. !Rodolfo vs. People, 8.$. No.+39693, 'uust +5, 2559#

;hen a person or entity, in any manner, offers or promises for a fee employment to two

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or more persons, that person or entity shall be deemed engaged in recruitment and placement.!People vs. Laogo, 8.$. No. +49293, January +5, 25++, Villarama, J.#

1.'.'. Essntial lnts o- illal r!ruitnt

ssential lements of 'llegal 4ecruitment

(1) /ffender is@(a) a non-licensee or a non-holder of authority< or(b) a licensee or holder of authority=2)(b) icenseeholder of authority commits any of the 1= infractions under +ec. 8,4A >=2.

1.'.$. Si0l illal r!ruitnt

'llegal recruitment may be committed when a non-licensee or a non-holder ofauthority performs any of the 11 acts of recruitment and placement under Art. 16(b) of theabor Code. ;hile Art. 6= maes a distinction between@

(a) rohibited practices when committed by a licensee or holder of authority< and(b) 'llegal recruitment when such prohibited practices were committed by a non-licensee or non-holder of authority.

BUT,4A >=2 remo$ed this distinction and redefined illegal recruitment as follows@

(a) charging an amount greater than that specified $ny person who shall defraud anotherby any of the means mentioned hereinbelow shall be punished by%

""" the fraud be committed by any of the following means%. ?ith unfaithfulness or abuse of confidence, namely%

""" """ """'b2 5y misappropriating or converting, to the prejudice of another, money,

goods, or any other personal property received by the offender in trust or oncommission, or for administration, or under any other obligation involving theduty to mae delivery of or to return the same, even though such obligation betotally or partially guaranteed by a bond& or by denying having received suchmoney, goods, or other

""" """ """

/. 5y means of any of the following false pretenses or fraudulent acts e"ecuted

prior to or simultaneously with the commission of the fraud%'a2 5y using fictitious name, or falsely pretending to possess power,influence, qualifications, property, credit, agency, business or imaginarytransactions, or by means of other similar deceits.

""" """ """

Any recruitment acti$ities to be undertaen by non-licensee or non-holder of contractsshall be deemed illegal and punishable under Art. 69 of the abor Code. !People vs. Jamilosa,7+2 SC$' 35 2554!#

Absence of money or any $aluable consideration as payment for ser$ices of therecruiter still considers the recruitment illegal under Art. 16(b) of the abor Code as recruitmentmaybe for profit or not. !People vs. Jamilosa, supra#

1.'.7. Lia*ilitis

S"C,56 10. Money claims.The liability of the principal6employer and the recruitment6placement

agency for any and all claims under this section shall be joint and several. Thisprovision shall be incorporated in the contract for overseas employment and shall

be a condition precedent for its approval. The performance bond to be filed bythe recruitment6placement agency, as provided by law, shall be answerable forall money claims or damages that may be awarded to the worers. If the

recruitment6placement agency is a juridical being, the corporate officers anddirectors and partners as the case may be, shall themselves be jointly andsolidarily liable with the corporation or partnership for the aforesaid claims anddamages.

Such liabilities shall continue during the entire period or duration of theemployment contract and shall not be affected by any substitution, amendmentor modification made locally or in a foreign country of the said contract.

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2a3 lo!al 0lo6nt an!6

2*3 -orin 0lo6r

T5or6 o- i0ut) /no8l)

+ ,-e so!calle t-eory of impute /nowlee t-at is /nowlee of t-eaent is /nowlee of t-e principal. #ew Life s. % .&. o. 540$1 6arc- 31

1552' 7or t-e liability of t-e aent to attac- t-is t-eory states t-at t-e aent /new

of an consente to t-e extension of perio of employment. 8t-erwise t-e

liability of t-e recruitment aency s-all expire from t-e termination of t-e

wor/er9s oriinal contract. #S:%E ;,E&%,;8%L 6%%E6E, s.L& .&. o. 1)1$($


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Secretary of 4abor is e/empte! from this provision.

'. Rulation an) En-or!nt

Art. 1. Pri'ate recritment.9"cept as provided in #hapter II of thisTitle, no person or entity other than the public employment offices, shall engagein the recruitment and placement of worers.

Art. 2. Pri'ate sector participation in te recritment an!placement of or+ers.8ursuant to national development objectives and inorder to harness and ma"imize the use of private sector resources and initiativein the development and implementation of a comprehensive employment

program, the private employment sector shall participate in the recruitment andplacement of worers, locally and overseas, under such guidelines, rules andregulations as may be issued by the Secretary of 4abor.

Art. 2. ra'el a$encies proibite! to recrit.Travel agencies andsales agencies of airline companies are prohibited from engaging in the businessof recruitment and placement of worers for overseas employment whether forprofit or not.

Art. 27. Citi%ensip reirement. :nly @ilipino citizens orcorporations, partnerships or entities at least seventy-five percent '+A2 of theauthorized and voting capital stoc of which is owned and controlled by @ilipinocitizens shall be permitted to participate in the recruitment and placement of

worers, locally or overseas.

Art. 28. Capitali%ation.$ll applicants for authority to hire or renewalof license to recruit are required to have such substantial capitalization asdetermined by the Secretary of 4abor.

Art. 29. 6on-transferability of license or atority.!o license orauthority 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 orauthority be transferred, conveyed or assigned to any other person or entity. $nytransfer of business address, appointment or designation of any agent orrepresentative including the establishment of additional offices anywhere shall be

subject to the prior approval of the 7epartment of 4abor.

Art. 30. e$istration fees.The Secretary of 4abor shall promulgate aschedule of fees for the registration of all applicants for license or authority.

Art. 31. Bon!s.$ll applicants for license or authority shall post suchcash and surety bonds as determined by the Secretary of 4abor to guaranteecompliance with prescribed recruitment procedures, rules and regulations, andterms and conditions of employment as may be appropriate.

Art. 32. ees to be pai! by or+ers.$ny person applying with aprivate fee-charging employment agency for employment assistance shall not becharged any fee until he has obtained employment through its efforts or has

actually commenced employment. Such fee shall be always covered with theappropriate receipt clearly showing the amount paid. The Secretary of 4abor shallpromulgate a schedule of allowable fees.

Art. 33. eports on employment stats. ?henever the publicinterest requires, the Secretary of 4abor may direct all persons or entities withinthe coverage of this Title to submit a report on the status of employment,including job vacancies, details of job requisitions, separation from jobs, wages,



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other terms and conditions and other employment data.

'.1. Rittan! o- -orin 9!5an arnins

Art. 22. )an!atory remittance of forei$n e/can$e earnin$s.Itshall be mandatory for all @ilipino worers abroad to remit a portion of theirforeign e"change earnings to their families, dependents, and6or beneficiaries inthe country in accordance with rules and regulations prescribed by the Secretaryof 4abor.

'.'. Pro5i*it) a!tivitis

Art. 34. Proibite! practices.It shall be unlawful for any individual,entity, licensee, or holder of authority%

'a2 To charge or accept, directly or indirectly, any amount greater thanthat specified in the schedule of allowable fees prescribed by the Secretary of

4abor, or to mae a worer pay any amount greater than that actually received byhim as a loan or advance&'b2 To furnish or publish any false notice or information or document

in relation to recruitment or employment&

'c2 To give any false notice, testimony, information or document orcommit any act of misrepresentation for the purpose of securing a license orauthority under this #ode.

'd2 To induce or attempt to induce a worer already employed to quithis employment in order to offer him to another unless the transfer is designed toliberate the worer from oppressive terms and conditions of employment&

'e2 To influence or to attempt to influence any person or entity not toemploy any worer who has not applied for employment through his agency&

'f2 To engage in the recruitment or placement of worers in jobsharmful to public health or morality or to the dignity of the )epublic of the8hilippines&

'g2 To obstruct or attempt to obstruct inspection by the Secretary of4abor or by his duly authorized representatives&

'h2 To fail to file reports on the status of employment, placementvacancies, remittance of foreign e"change earnings, separation from jobs,departures and such other matters or information as may be required by theSecretary of 4abor.

'i2 To substitute or alter employment contracts approved and verifiedby the 7epartment of 4abor from the time of actual signing thereof by the parties

up to and including the periods of e"piration of the same without the approval ofthe Secretary of 4abor&

'j2 To become an officer or member of the 5oard of any corporationengaged in travel agency or to be engaged directly or indirectly in themanagement of a travel agency& and

'2 To withhold or deny travel documents from applicant worersbefore departure for monetary or financial considerations other than thoseauthorized under this #ode and its implementing rules and regulations.

'.$. Rulator6 an) visitorial 0o8rs o- t5 La*or S!rtar6

Art. 14. "mployment promotion.The Secretary of 4abor shall havethe power and authority%

'a2 To organize and establish new employment offices in addition tothe e"isting employment offices under the 7epartment of 4abor as the needarises&

'b2 To organize and establish a nationwide job clearance and information



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system to inform applicants registering with a particular employment office of jobopportunities in other parts of the country as well as job opportunities abroad&

'c2 To develop and organize a program that will facilitateoccupational, industrial and geographical mobility of labor and provideassistance in the relocation of worers from one area to another& and

'd2 To require any person, establishment, organization or institutionto submit such employment information as may be prescribed by the Secretary of4abor.

Art. 3. e$latory poer. The Secretary of 4abor shall have thepower to restrict and regulate the recruitment and placement activities of allagencies within the coverage of this Title and is hereby authorized to issue ordersand promulgate rules and regulations to carry out the objectives and implementthe provisions of this Title.

Art. 37. *isitorial Poer. The Secretary of 4abor or his dulyauthorized representatives may, at any time, inspect the premises, boos ofaccounts and records of any person or entity covered by this Title, require it tosubmit reports regularly on prescribed forms, and act on violation of anyprovisions of this Title.

N#TES:

%he +upreme Court declared Art. 6, par. (c) unconstitutional and null and $oid,stating that only a &udge may issue warrants of search and arrest. !"ortencia Sala!ar vs.#omas $. Achacoso and %erdie ar&ue!, 8.$. No. 1+7+5, &arch +3, +665#

'.%. Pnaltis -or illal r!ruitnt

Art. 3. Sspension an!:or cancellation of license or atority.The inister of 4abor shall have the power to suspend or cancel any license orauthority to recruit employees for overseas employment for violation of rules and

regulations issued by the inistry of 4abor, the :verseas 9mployment7evelopment 5oard, or for violation of the provisions of this and other applicablelaws, Beneral :rders and 4etters of Instructions.

Art. 39. Penalties.

'a2 The penalty of life imprisonment and a fine of :ne =undredThousand 8esos '8CCC,CCC.CC2 shall be imposed if illegal recruitmentconstitutes economic sabotage as defined herein&

'b2 $ny licensee or holder of authority found violating or causinganother to violate any provision of this Title or its implementing rules andregulations shall, upon conviction thereof, suffer the penalty of imprisonment ofnot less than two years nor more than five years or a fine of not less than 8C,CCCnor more than 8C,CCC, or both such imprisonment and fine, at the discretion ofthe court&

'c2 $ny person who is neither a licensee nor a holder of authorityunder this Title found violating any provision thereof or its implementing rulesand regulations shall, upon conviction thereof, suffer the penalty ofimprisonment of not less than four years nor more than eight years or a fine ofnot less than 8/C,CCC nor more than 8CC,CCC or both such imprisonment andfine, at the discretion of the court&

'd2 If the offender is a corporation, partnership, association or entity,the penalty shall be imposed upon the officer or officers of the corporation,partnership, association or entity responsible for violation& and if such officer isan alien, he shall, in addition to the penalties herein prescribed, be deported

without further proceedings&

'e2 In every case, conviction shall cause and carry the automaticrevocation of the license or authority and all the permits and privileges granted tosuch person or entity under this Title, and the forfeiture of the cash and surety

bonds in favor of the :verseas 9mployment 7evelopment 5oard or the !ational



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Seamen 5oard, as the case may be, both of which are authorized to use the samee"clusively to promote their objectives.

a) icensing of and Administrati$e Complaints against 4ecruitment Agencies

*#C'* $EC$U%T&ENT '8ENC

;hereto file@ / 4egional /ffice

;ho issues license@ / 4egional irector

;ho revokes=cancelslicense@ / 4egional irector

B copy furnished of all /rders for atabase

#@E$SE'S $EC$U%T&ENT '8ENC

;hereto file@ /A irector of icensing I 4egulatory /ffice (4/), which office is under the

wing of the eputy Administrator for Ad&udication and mployment 4egulation.

;ho issues license: /A irector of 4/

;ho revokes=cancelslicense@ /A irector of 4/

EACE)T, in case of %**E8'* $EC$U%T&ENT@

1 Ender the /A 4ules on /$erseas and-based mployment (2>>2), both the /A

Administrator and / 4egional irector has the power to issue a C/+E4 /44

against an erring o$erseas recruitment and manning agency.

2 BUT,Ender the new /mnibus 4ules 'mplementing 4A 1>>22 (amendment to 4A >=2), it

is the )#E' 'dministrator >22#

Closure /rder may be li"ted upon "ilin a &otion /e"ore the )#E' (irectorof 4/, which

motion shall be resolved /y the )#E' 'dministrator. !+ec. 1, /mnibus 4ules 'mplementing

4A 1>>22#

b) Criminal Complaints in$ol$ing Higrant ;orers

%**E8'* $EC$U%T&ENT 'S EC#N#&%C S'B#T'8E

Cateories@

1. %lleal recruitment in lare scale if committed against three or morepersons indi$idually or as a group.

2. %lleal recruitment /y a syndicate - if carried out bya group of three ormore persons conspiring andor confederating with one another.

;hen only one complainant filed indi$idual complaints, there is no illegal recruitment

in large scale BUT the three conspiring recruiters can be held guilty of illegal recruitment by a

syndicate. !eople $s. Jernandez, K. 4eichl, and L.5. de 4eichl, 5.4. 0os. 1=1221-68,

Harch , 2>>2.#

;here illegal recruitment is pro$ed but the elements of large scale" or syndicate"

are absent, the accused can be con$icted only of simple illeal recruitment.

@ENUE: %he $TC of the pro$ince or city where the offense was committed or where



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the offended party actually resides at the time of the commission of the offense.

C. LABOR:STANDARDS

1. ;ours o- Wor/

Labor Code

Art. 84. ;ors or+e!.=ours wored shall include 'a2 all time duringwhich an employee is required to be on duty or to be at a prescribed worplace&and 'b2 all time during which an employee is suffered or permitted to wor.

)est periods of short duration during woring hours shall be counted ashours wored.

Omnibus Rules

Book ! Rule "

Sec. 3. Hours worked.The following shall be considered ascompensable hours wored%

'a2 $ll time during which an employee is required to be on duty or tobe at the employerDs premises or to be at a prescribed worplace& and

'b2 $ll time during which an employee is suffered or permitted towor.

Sec. 4. Principles in Determining Hours WorkedThe followinggeneral principles shall govern in determining whether the time spent by anemployee is considered hours wored for purposes of this )ule%

'a2 $ll hours are hours wored which the employee is required to give

to his employer, regardless of whether or not such hours are spent in productivelabor or involve physical or mental e"ertion&

'b2 $n employee need not leave the premises of the worplace in orderthat his rest period shall not be counted, it being enough that he stops woring,may rest completely and may leave his worplace, to go elsewhere, whether

within or outside the premises of his worplace&'c2 If the wor performed was necessary, or it benefited the employer,

or the employee could not abandon his wor at the end of his normal woringhours because he had no replacement, all time spent for such wor shall beconsidered as hours wored, if the wor was with the nowledge of his employeror immediate supervisor&

'd2 The time during which an employee is inactive by reason of

interruptions in his wor beyond his control shall be considered time either if theimminence of the resumption of wor requires the employeeDs presence at theplace of wor or if the interval is too brief to be utilized effectively and gainfully inthe employeeDs own interest.

Sec. . Waiting Time.'a2 ?aiting time spent by an employee shall be considered as woring

time if waiting is an integral part of his wor or the employee is required orengaged by the employer to wait.

'b2 $n employee who is required to remain on call in the employerDspremises or so close thereto that he cannot use the time effectively and gainfullyfor his own purpose shall be considered as woring while on call. $n employee

who is not required to leave word at his home or with company officials where hemay be reached is not woring while on call.

Sec. . Lectures, Meetings, Training Programs.$ttendance atlectures, meetings, training programs, and other similar activities shall not becounted as woring time if all of the following conditions are met%

'a2 attendance is outside of the employeeDs regular woring hours&'b2 attendance is in fact voluntary& and



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'c2 the employee does not perform any productive wor duringsuch attendance.

1.1. CovraThe provisions of this title shall apply to employeesin all establishments and undertaings whether for profit or not, but not togovernment employees, managerial employees, field personnel, members of thefamily of the employer who are dependent on him for support, domestic helpers,persons in the personal service of another, and worers who are paid by results asdetermined by the Secretary of 4abor in appropriate regulations.

$s used herein, Emanagerial employeesF refers to those whose primaryduty consists of the management of the establishment in which they areemployed or of a department or subdivision thereof, and to other officers ormembers of the managerial staff.

E@ield personnelF shall refer to non-agricultural employees who regularly

perform their duties away from the principal place of business or branch office ofthe employer and whose actual hours of wor in the field cannot be determined

with reasonable certainty.

Omnibus Rules

Book ! Rule

Section 2. Eemption.>The provision of this )ule shall not apply tothe following persons if they apply to the following persons if they qualify fore"emption under the conditions set forth herein%

""" """ """

'b2 anagerial employees, if they meet all of the following conditions,namely%

'2 Their primary duty consists of the management of theestablishment in which they are employed or of a department or sub-division thereof&

'/2 They customarily and regularly direct the wor oftwo or more employees therein&

'(2 They have the authority to hire or fire otheremployees of lower ran& or their suggestions and recommendations as tothe hiring and firing and as to the promotion or any other change of statusof other employees are given particular weight.

'c2 :fficers or members of a managerial staff if they perform thefollowing duties and responsibilities%'2 The primary duty consists of the performance of

wor directly related to management policies of their employer&'/2 #ustomarily and regularly e"ercise discretion and

independent judgment&'(2 'i2 )egularly and directly assist a proprietor or a

managerial employee whose primary duty consists of the management ofthe establishment in which he is employed or subdivision thereof& or 'ii2

e"ecute under general supervision wor along specialized ortechnical lines requiring special training, e"perience, or nowledge& or'iii2 e"ecute under general supervision special assignments and tass&and

'


16/88

;ho are covered

All employees in all establishments

;ho are N#T covered

(1) Government emplo'eesSee: Ci$il +er$ice aw

Hagna Carta of ublic Jealth ;orers (4.A. 6>7)

(2) anagerial emplo'ees

(a) managerial employees(b) officers of the managerial staff(c) members of the managerial staff

N#TES@

3or purposes of the e*emption, managerial employees are those whose primary dutyconsists of the management of the establishment in which they are employed or of adepartment or subdi$ision." !Pe(aranda vs. )aganga Pl'*ood Corp., 8.$. No. +76744, &ay, 2559#

A purported manager" whose function is simply to carry out the companyFs orders, plansand policies is not a managerial employee. 'f their functions, duties and responsibilities do notbear relation with the management of the establishment, nor participate in the formulation of itspolicies, nor in the hiring and firing of its employees, then they are 0/% managerial employees.!NA+ASA vs. N+SA Consolidated nions, ++ SC$' 499 +693!#

Hanagerial employee is not reDuired to report at a fi*ed hour or to eep fi*ed hours ofwor. !nternational Pharmaceuticals, nc. s. NLRC, 214 SC$' 2+ +661!#

A Mice residentlant Hanager is a managerial employee, and therefore e*cluded fromthe co$erage of %itle ', Boo ''', of the abor Code. !John cLeod vs. NLRC, 8.$. No.+39994, January 2, 2554#

Includes managerial staff

;hile not considered as managerial employees, officers and members of themanagerial staff are liewise e*empted from the co$erage of Article 2. Hanagerial staff arethose with the following duties and responsibilities@

(1) primary duty consists of the performance of wor directly related tomanagement policies of the employer29, :uly 6>, 192#

1.4.1 Un)rti not o--st *6 ovrti

Art. 88. #ndertime not "$$set %& "vertime.Gndertime wor on anyparticular day shall not be offset by overtime wor on any other day. 8ermissiongiven to the employee to go on leave on some other day of the wee shall note"empt the employer from paying the additional compensation required in this#hapter.

N#TE:

'f a worer should incur in undertime during his regular daily wor, it should notbe set off by his o$ertime, for that would place the schedule of woring hours dependenton the employee. !NA+ASA vs. N+SA Consolidated nions, supra#

1.4.' Waivr o- ovrti 0a6

3or instance, the generally obser$ed worwee of 8 days is shortened to 7 days,but prolonging the woring hours from Honday-3riday without the employer being obligedto pay o$ertime premium compensation for wor performed in e*cess of hours onweedays, in e*change for the benefits that will accrue to employees. !)isig


=SE=>suc- unertime? cannot be c-are aainst t-e >accrue leae? oft-e employee.


23/88

anggaga*a, supra#

1.7. Ni5t Wor/

Art. 8. 'ig(t )(i$t Di$$erential.9very employee shall be paid a nightshift differential of not less than ten percent 'CA2 of his regular wage for eachhour of wor performed between ten oHcloc in the evening and si" oHcloc in themorning.

0ight-shift wor is more onerous and burdensome, and thus deser$es moreremuneration than their day time counterparts. %here is no dispute that ordinary andregular normal wor is performed in the daytime, and that night wor is e*ceptional and isonly &ustified in una$oidable circumstances necessary for the business of the employer.!Shell Compan' vs. NL, 1+ )hil. +7 +631!#

1.&. CBA 0rovision vis?@?vis ovrti 8or/

4ule on Computation of /$ertime ay

1. Basis for computation

aw Based on regular wage !)isig ng anggaga*a sa PRC, supra#

CBA As pro$ided therein !PN) vs. P1A, supra#

'f CBA issilent,

Apply the law again !PN) vs. P1A, supra#

2. ;or Jour is @>> A.H. %o =@>> .H.

/% has to be computed on a 2=-hour wor day schedule

6. %he basis of /% claim is permitted to wor", otherwise not demandable. !anilaJoc2e', supra#

'. Was

;ae - remuneration, regardless of how designated- capable of being e*pressed in terms of money- regardless of how fi*ed or ascertained- payable for ser$ices renderedto be rendered- inclusi$e of facilities !fair and reasonable# e*clusi$e of profit to

mployer


Cash ;ae is the reular )

By cash wage", facilities pro$ided by the employer" shall not beincluded, meaning only cash wage shall be used in computing /% and 0+!unlike 'rt. 64 "!where wage includes fair and reasonable $alue *** of boardand lodging, or other facilities customarily furnished by the employer to theemployee".

onge$ity pay is not included in the computation of o$ertime pay !PN)

vs. P1A, supra#. 't is not part of regular wages, but a form of gratuity.


24/88

'.1. No 8or/ no 0a6 0rin!i0l

%he general no wor, no pay" rule should pre$ail with respect to employeesF wagesduring the suspension period, sub&ect to e*isting CBA terms on lea$e credits and similar

benefits of employees. %he suspension was due to en$ironmental causes that can affect thehealth and safety of those within the $icinity of Harcopper, particularly its employees. !Nationalines and Allied +or2ers nion 6NAA+7 vs. arcopper ining Corporation,5.4. 0o.1=8=1, 0o$ember 11, 2>>#

'.'. Covra


25/88

petitioners render Duality performance. 'n determining whether a pri$ilege is a facility, the criterion is notso much its ind but its purpose. !States arine Corporation vs. Ce0u Seamen9s Association, nc.,No. L-:;>>.>> plus pri$ileges. %hat wage and salary aresynonymous has been settled in Songco v. )#*+. !EIuita/le Bankin Corp v. $icardoSapac, =9> +C4A 61 (2>>8)#

'.+. Wa )istortion

%he concept of wage distortion assumes an e*isting grouping or classification ofemployees which establishes distinctions among such employees on some rele$ant orlegitimate basis. %his classification is reflected in a differing wage rate for each of the e*istingclasses of employees". ;hile Art. 12= pro$ides for 5rie$ance Hachinery which ends up inMoluntary Arbitration, (organized establishments) and 0CHB conciliations which e$entuallymaybe referred to Compulsory Arbitration by abor Arbiter, such are not the only $alid wayswith which a wage distortion may be corrected. A CBA increase which re-establishes thewage gap, or a unilateral grant by the employer which also restores said gap are $alid wagedistortion correction schemes. !0ational 3ederation of abor $s. 04C, 26= +C4A 611, 622-626#

%our elements of *age distortion:

1) an e*isting hierarchy of positions with corresponding salary rates.

2) a significant change in the salary rate of a lower pay class without a concomitant increase inthe salary rate of a higher one>.

%here is wage distortion based on the pre$ailing rates of the super$isors and foremen (before theincrease in wages based on the CBA). 'f 4A 88=> would be implemented, the gaps e*isting between andamong the wage rates of all the employees of petitioner would ha$e been substantially altered andreduced.

'n the present case, only three (6) of the union members are recei$ing wages below 1>>.>>, thusentitled to the increase. %o direct petitioner to grant an across-the-board increase to all of them would beharsh and unfair to the employer.

Jowe$er, due to the CBA pro$ision, pro$iding for increased monthly salaries of super$isors andforemen, such has re-established and broadened the gap, and significantly doubled the 1>>.>> increaseunder 4A 88=>, which in effect substantially complied with the wage increase under 4A 88=>. %he unionis estopped from claiming wage increase under 4A 88=> when it forged the CBA with petitioner after thelaw too effect.

*** *** ***

*** !;#age distortion means the disappearance or $irtual disappearance of pay differentialsbetween lower and higher positions in an enterprise because of compliance with a wage order.

%he apparent intention of the law is only to upgrade the salaries or wages of the employeesspecified therein. (anila andarin 1mplo'ees nion v. NLRC, 5.4. 0o. 1>778, 0o$ember 19, 1998,

28= +C4A 62>)

'.7. Non?)iinution o- *n-its

Art. 100. Proibition a$ainst elimination or !imintion ofbenefits. !othing in this 5oo shall be construed to eliminate or in any waydiminish supplements, or other employee benefits being enjoyed at the time ofpromulgation of this #ode.

N#TES:

(iminution o" Bene"its, de"ined. iminution of benefits is the unilateralwithdrawal by the employer of benefits already en&oyed by the employees. !#SPCCorporation vs. #SPC 1mplo'ees nion 6%%+7, 5.4. 186=19, Fe/. +, 2551#

$iminution of )enefitsB Negative $efinition

+ince under the CBA, o$ertime pay was not gi$en to each employee consistently, deliberatelyand unconditionally, but as compensation for additional ser$ices rendered", the employer?s changeof schedule which is not prohibited by the CBA, resulting in lesser o$ertime wor, does notconstitute a diminution of benefits under Art. 1>> of the abor Code ! anila Joc2e' Clu01mplo'ees La0or nion-P#G+ vs. anila Joc2e' Clu0, 'nc., 71 +C4A >, 12-16,Harch , 2>>#

8here is diminution of benefits when it is shown that:

(a) %he grant or benefits is founded on a policy or has ripened into a practice o$er a longperiod2-A, +ecs. 7 I 8 on 4ehabilitation. !Ru00er*orld Phils. vs. NLRC,April 1=, 1999#

P 4ehabilitation suspends automatically proceedings at 04C.

P 4ecei$er taes hold of assets for the benefit of creditors with possibility ofcontinued operation.

P iDuidator taes hold of assets to dispose according to priorities. /perationsstop. Both recei$ershipliDuidation personality of corp. continues !P) v. NLRC, /ct. 28, 1999#

;orerFs claims for unpaid wages and monetary benefits cannot be paid outside of abanruptcy or &udicial liDuidation proceedings against the employer. >Barayoa vs. 'sset)rivatiation Trust, =6 +C4A 89>?

'.". La*or Co) 0rovisions -or 8a 0rot!tion

Art. 112. 6on-interference in !isposal of a$es. !oemployer shall limit or otherwise interfere with the freedom of any employee todispose of his wages. =e shall not in any manner force, compel, or oblige hisemployees to purchase merchandise, commodities or other property from anyother person, or otherwise mae use of any store or services of such employer orany other person.

Art. 114. Deposits for loss or !ama$e. !o employer shallrequire his worer to mae deposits from which deductions shall be made for thereimbursement of loss of or damage to tools, materials, or equipment supplied by

the employer, e"cept when the employer is engaged in such trades, occupationsor business where the practice of maing deductions or requiring deposits is arecognized one, or is necessary or desirable as determined by the Secretary of4abor and 9mployment in appropriate rules and regulations.

Art. 11. #imitations. !o deduction from the deposits of anemployee for the actual amount of the loss or damage shall be made unless theemployee has been heard thereon, and his responsibility has been clearly shown.

Syllabus for 2011 Bar Examinations in Labor Law 2$


28/88

Art. 11. =itol!in$ of a$es an! +ic+bac+s proibite!.It shall be unlawful for any person, directly or indirectly, to withhold any

amount from the wages of a worer or induce him to give up any part of his wagesby force, stealth, intimidation, threat or by any other means whatsoever withoutthe worerHs consent.

Art. 117. De!ction to ensre employment. It shall beunlawful to mae any deduction from the wages of any employee for the benefitof the employer or his representative or intermediary as consideration of apromise of employment or retention in employment.

Art. 118. etaliatory measres.It shall be unlawful for an employerto refuse to pay or reduce the wages and benefits, discharge or in any mannerdiscriminate against any employee who has filed any complaint or instituted anyproceeding under this Title or has testified or is about to testify in suchproceedings.

Art. 119. alse reportin$.It shall be unlawful for any person to mae

any statement, report, or record filed or ept pursuant to the provisions of this#ode nowing such statement, report or record to be false in any material respect

C'SE:Special Steel )roducts, %nc. vs. *utardo @illareal, et al.,

5.4. 0o. 1=66>=, :uly , 2>>=

etitioner contends that as a guarantor, it could legally withhold respondent MillarealFs monetarybenefits as a preliminary remedy pursuant to Article 2>1 of the Ci$il Code, as amended. As torespondent +o, petitioner, citing Article 116 of the abor Code, as amended, in relation to Article 1>8 ofthe Ci$il Code, as amended, maintains that it could withhold his monetary benefits being authorized by thememorandum he signed.

Article 118 of the abor Code, as amended, pro$ides@

A4%. 118. 9ithholding of wages and kickbacks prohibited.G%t shall /e unla


29/88

mployer cannot deduct from wagesEGcept:

a) 'nsurance remiumb) Enion dues 2=1 !o#< 2= !e#c) Authorized by law.

- Chec-off authorized by mployer reDuires written authorization from employee.

'.11. Attorn6s -s an) union srvi! - in la*or !ass

Art. 111. Attorneys fees.'a2 In cases of unlawful withholding of wages, the culpable party may

be assessed attorneyHs fees equivalent to ten percent of the amount of wagesrecovered.

'b2 It shall be unlawful for any person to demand or accept, in anyjudicial or administrative proceedings for the recovery of wages, attorneyHs feeswhich e"ceed ten percent of the amount of wages recovered.

N#TES:

Attorne'9s %ees

a) *traordinary concept awarded by courtN against culpable party for unlawful wholding of wages, 66 (2>>).

$ules:

(1) 'n actions for (1) reco$ery of wages or (2) where an employee was forced to litigate

and thus incurred e*penses to protect his rights and interests, a ma*imum award of ten percent(1>N) of the monetary award by way of attorney?s fees is legally and morally &ustifiable under

Art. 111 of the abor Code. O**

3orced to litigate reco$ery of wages basics of attorneyFs fees !Ruta&uio vs. NLRC, (/ct. 19,1999)< arsaman anning Agenc' vs. NRLC, (Aug. 27, 1999)

(2) 0o attorneyFs fees when complaint is represented by A/ Lam0o vs. NLRC, 5.4.0o. 111>=2, /ct. 28, 1999, 61 +C4A =2>.

(6) 0on-awyers 0ot ntitled to Attorney?s 3ees

'.1'. Critria


30/88

In the determination of such regional minimum wages, the )egional 5oard shall,among other relevant factors, consider the following%

'a2 The demand for living wages&

'b2 ?age adjustment vis--vis the consumer price inde"&

'c2 The cost of living and changes or increases therein&

'd2 The needs of worers and their families&'e2 The need to induce industries to invest in the countryside&

'f2 Improvements in standards of living&

'g2 The prevailing wage levels&

'h2 @air return of the capital invested and capacity to pay of employers

'i2 9ffects on employment generation and family income& and

'j2 The equitable distribution of income and wealth along theimperatives of economic and social development.

endency of disputes shall not delay applicability of wage order.

%hose paid by 4esult istortion elimination or se$ere contraction ofintentional wage Duantitati$e differences resulting in effecti$ely obliteration ofdistinctions in wage structure based on sills, length of ser$ice, other logical bases ofdifferentiation.

- guaranteed wages- standard for hours wor recognized learnership

(Apprenticeship ad&usted)

$. Rst Da6

Art. 91. i$t to ee+ly rest !ay.'a2 It shall be the duty of every employer, whether operating for profit

or not, to provide each of his employees a rest period of not less than twenty-four'/


31/88

!Art. >@6c7, wheresuch" refers to special day#

For >N of his daily wage< andb) an additional sum of at least 27N of the regular remuneration,

which shall be regarded as the premium pay"

2. a Honthly-aid mployee@

a) %Fthe remuneration is included in his salary, only the 27Npremium pay can be claimed< and

b) %F not so included in the monthly salary,(1) the first 1>>N of the 127N, which stands as the regular

remuneration< and(2) the 27N premium pay !$e Leon vs. Pampanga Sugar $evelopment

Co., nc., 8.$. No. *029133, Septem/er 5, +696, 29 +C4A 82#

N.B.@%he premium payments for +undays, legal holidays, and rest days are based on the rule

enunciated in "e #eon.

$.'. Pr-rn! o- t5 0lo6

;orers preference based on religious grounds, respected

$.$. W5n 8or/ on rst )a6 aut5ori)

Art. 92. =en employer may reire or+ on a rest !ay. Theemployer may require his employees to wor on any day%

'a2 In case of actual or impending emergencies caused by seriousaccident, fire, flood, typhoon, earthquae, epidemic or other disaster orcalamity to prevent loss of life and property, or imminent danger to public safety&

'b2 In cases of urgent wor to be performed on the machinery,equipment, or installation, to avoid serious loss which the employer wouldotherwise suffer&

'c2 In the event of abnormal pressure of wor due to specialcircumstances, where the employer cannot ordinarily be e"pected to resort toother measures&

'd2 To prevent loss or damage to perishable goods&'e2 ?here the nature of the wor requires continuous operations and

the stoppage of wor may result in irreparable injury or loss to the employer& and'f2 Gnder other circumstances analogous or similar to the foregoing

as determined by the Secretary of 4abor and 9mployment.

N#TES:

8rounds "or compulsory rest day


32/88

!/% may be reDuired when the country is at warlocal or national emergency declaredby Congressresident (difference between rest day and /%)#

%. ;oli)a6s

N#TE:

Regular "olida' Pa'

Joliday pay

a) regular daily wageb) 2>>N if worer is reDuired to wor during holidays

EGception:'n retailser$ice establishments regularly employing less than ten (1>) employees

%&)#$T'NT:

egal holiday falling on a +unday creates no legal obligation on the part of the employer to paye*tra pay.;ellinton %nvestment and &anu"acturin Corporation vs. TraLano, 5.4. 0o. 11=89, :uly6, 1997.

0ote@ %his ruling is no longer applicable in light of 4A 9=92, which mo$ed holidays falling on a +unday tothe ne*t Honday.

0ote also the ruling in Producers !ank vs. )#*+@

Apparently, the di$isor of 61= is arri$ed at by subtracting all +undays from thetotal number of calendar days in a year, since +aturdays are considered paid restdays, as stated in the inter-office memorandum. %hus, the use of 61= as a di$isorleads to the ine$itable conclusion that the ten legal holidays are already includedtherein." !Producers )an2 of the Philippines vs. NLRC, et al., 5.4. 0o.

1>>>1, Harch 2, 2>>1, %hird i$ision, 5onzaga-4eyes, :.#

%he foregoing seems to follow +ec. 2, 4ule 'M, Boo ''' of 'mplementing 4ules that mployeeswho are uniformly paid by the month irrespecti$e of number of woring days therein (but) with a salary notless than minimum wage (wored or not) shall be presumed to be paid their holiday pay". But in )AA1mplo'ees nion vs. nciong, /7 S+*; 22, the +upreme Court held that such rule is $oid. !'nilluga vs. NLRC, ;;F SCRA F@ and nion of %ilipro 1mplo'ees vs. ivar, ;DF SCRA ;DD, the Courtheld that this 'BAA ruling is prospecti$e in application following the /perati$e 3act" doctrine.

Closer to this case is the Chartered Ban mployees Association $s. Jon. /ple (5.4. -==1, August 2,197) where the Court held that if all nonworing days are paid the di$isor is 687. %hus, if di$isor is 271!687 72 +undays R 616 72 +at. R 281# 1> regular holidays is not paid otherwise 281 1> is 271. But if

281 is di$isor, then regular holidays are considered paid !271 Q 1> 4.J. R 281#.

P %his erroneous ruling in )roducers Bankwas followed, worsely, by S&C vs. (el $osario (ec.16, 2>>7) where the Court held that a monthly paid regular employee", is not entitled to holiday pay"pursuant to +ec. 2, 4ule 'M, Boo ''' of the /mnibus 4ules 'mplementing the abor Code.

-olidaysare@)ote changes made in RA >;

%.1. Ri5t to 5oli)a6 0a6

Art. 94.!ight to #oliday Pay.'a2 9very worer shall be paid his regular daily wage during regular

holidays, e"cept in retail and service establishments regularly employing lessthan ten 'C2 worers&

'b2 The employer may require an employee to wor on any holiday butsuch employee shall be paid a compensation equivalent to twice his regular rate&and

'c2 $s used in this $rticle, EholidayF includes% !ew JearDs 7ay,



33/88

aundy Thursday, Bood @riday, the ninth of $pril, the first of ay, the twelfth ofKune, the fourth of Kuly, the thirtieth of !ovember, the twenty-fifth of 7ecemberand the day designated by law for holding a general election.

holiday pay is a statutory benefit demandable under the law. +ince a worer is entitledto the en&oyment of ten paid regular holidays, the fact that two holidays fall on the same date should notoperate to reduce to nine the ten holiday pay benefits a worer is entitled to recei$e. !Asian

#ransmission Corporation vs. Court of Appeals, 5.4. 0o. 1==88=, Harch 17, 2>>=#

%.1.1. In !as o- a*sn!s

on lea$e of absence with pay the day before with pay on lea$e of absence without pay without pay day before holiday is non-woring day apply (a) I (b)

%.1.'. In !as o- t0orar6 !ssation o- 8or/

temporary periodic closure with pay

closure due to business re$erses ;'%J/E% AL

%.1.$. O- ta!5rs, 0i! 8or/rs, sa-arrs, sasonal 8or/rs, t!.

/n the issue of holiday pay, howe$er, two (2) contradictory $iews e*ist in &urisprudence@

(1) 'n #abor +ongress vs. )#*+, (29> +C4A 7>9) the +upreme Court held that piecerateworers are granted holiday pay based on Section 1/!, $ule %@, Book %%%. %he argument is that the/mnibus 4ules implementing the abor Code e*clude certain employees from recei$ing benefits such asnight differential pay, holiday pay, ser$ice incenti$e lea$e pay, and 16 thmonth pay, i.e., field personneland other employees whose time and performance is unsuper$ised by the employer, including those whoare engaged on tas or contract basis, purely commission basis, or those who are paid a fi*ed amount forperforming wor irrespecti$e of time consumed in the performance thereof." BUTthat piece0rate


34/88

(2) 'n akati 'aberdashery, Inc. vs. )*#+, (19 +C4A ==) on the other hand, piece0rate employees.

%hose e*empted from co$erage of title (omestic, etc.)



35/88

/! not applied aainst employers M+! 100@? of er a'era$e !aily salary cre!it for si/ty >0?!ays or se'enty-ei$t >78? !ays in case of caesarian delivery, """ """

+.'.'. Con)itions to ntitlnt

S"C. 14-A. )aternity #ea'e Benefit. L """, subject to the followingconditions%

'a2 That the employee shall have notified her employer of her pregnancy

and the probable date of her childbirth, which notice shall be transmitted to theSSS in accordance with the rules and regulations it may provide&

'b2 The full payment shall be advanced by the employer within thirty '(C2days from the filing of the maternity leave application&

'c2 That payment of daily maternity benefits shall be a bar to the recoveryof sicness benefits provided by this $ct for the same period for which dailymaternity benefits have been received&

'd2 That the maternity benefits provided under this section shall bepaid

Syllabus for 2011 Bar Examinations in Labor Law 3(

=SE== ,-is rule is proof t-at S;L oes not -ae to epen onaut-oriDe absences for an employee to be entitle

t-ereto.


36/88

only for the first four ' RA &1&7

4A 1 grants paternity lea$e of days with full pay to all married male employees in the pri$ateand public sectors. aternity lea$e is a$ailable only for the first four deli$eries of the legitimate spouse withwhom the husband is cohabiting. %he purpose of paternity lea$e is to enable the husband to lend supportto his wife during the period of reco$ery andor in the nursing of the newly-born child.

+.$.1. Covra

S"C,56 2. """ every married male employee in the private and

public sectors shall be entitled to a paternity leave of seven '+2 days with full payfor the first four '


37/88

Lou are a parent left alone with the responsibility of parenthood because of thedeath of your spouse.

Lou are a parent left alone with the responsibility of parenthood because of anyphysical andor mental incapacity of your spouse as certified by a public medical practitioner.

Lou are a parent left alone with the responsibility of parenthood because you ha$elegally separated from your spouse or because you ha$e been separated for at least one

year and your child is in your custody. Lou are a parent left alone with the responsibility of parenthood because yourmarriage was annulled by a court or a church decree, and your child is in your custody.

Lou are a parent left solo or alone with the responsibility of parenthood becauseyour spouse abandoned you for at least one year.

Lou are a parent left solo or alone with the responsibility of parenthood becauseyour spouse is detained or is ser$ing sentence for a crime for at least one year.

Lou are an unmarried mom or dad who has preferred to eep and rear your childyourself, instead of ha$ing others care for them or gi$e them up to a welfare institution.

Lou solely pro$ide parental care and support to a child or children.

Lou assume the responsibility of head of the family as a result of the death,abandonment, disappearance or prolonged absence of the children?s parents or solo parent.

Lou are a $ictim of rape andor other crimes against chastity, ha$e gi$en birth to a

child as a result and ha$e decided to eep and raise your child.

+.%.'. Con)itions to ntitlnt

+onditions for ;vailment

1. +olo parent has rendered at least 1 year of ser$ice (continuous or broen)2. has notified employer of the a$ailment within a reasonable time< and6. has presented a +olo arent 'dentification Card to the employer.

+.%.$. Availnt

Enused parental lea$e is not con$ertible to cash unless otherwisepro$ided in CBA.

Sec. 8.Parental $eave.- In addition to leave privileges under e"istinglaws, parental leave of not more than seven '+2 woring days every year shall begranted to any solo parent employee who has rendered service of at least one '2

year.

+.+. Lavs -or vi!tis o- violn! aainst 8on> RA "'4'

+.+.1. Covra

ea$e a$ailable to an Employee(not only for women) who are $ictims of $iolence,either physical, se*ual or psychological.

+.+.'. Con)itions to ntitlnt

A reDuirement to apply for the battered woman lea$e is a certification obtained from the BarangayCaptain or Kagawad or prosecutor or the cler of court that an action based on 4. A. 9282 hasbeen filed and is pending.

%he use of the ten-day lea$e is at the option of the employee.

't shall be used for the days that she need to attend to medical and legal concerns.

ea$es not a$ailed of are non-cumulati$e and not con$ertible to cash. 'ndeed, the battered womanlea$e is useful for $ictims of $iolence. astly, this law is only applicable in the hilippines.

+.+.$. Availnt

ea$e of up to ten days in addition to other paid lea$es under the abor Code, orother laws.



38/88

4. Srvi! C5ars

Art. 9. Service %harges. $ll service charges collected byhotels, restaurants and similar establishments shall be distributed at the rate ofeighty-five percent '1A2 for all covered employees and fifteen percent 'A2 for

management. The share of the employees shall be equally distributed amongthem. In case the service charge is abolished, the share of the covered employeesshall be considered integrated in their wages.

4.1. Covra

Article 98 and its implementing rule (4ule M', Boo '''), apply only to esta/lishments collectinservice chares, such as hotels, restaurants, lodging houses, night clubs, coctail lounges, massageclinics, bars, casinos, and gambling houses, and similar enterprises, including those entities operatingprimarily as pri$ate subsidiaries of the go$ernment. !Sec. :, $ule @%, Book %%%#

4.'. E9!lusionN#TES:

%ip, not normally part of salary, it being paid by customer !Ace Navigation Co.,nc. vs. Court of Appeals, 1 SC$' 45#

4.$. Distri*ution

All ser$ice charges collected by Jotels, restaurants and similar establishmentsshall be distributed at the rate of@

7N - for all co$ered employees17N - for management !Hanagerial employee under

Art. 212(H), as implied in +ec. 2, 4ule M', B, '''#

+uper$isors are considered as ran-and-file per +ec. 2, 4ule M', as they are notmanagerial in Art. 212(H)

'n case the ser$ice charge is abolished, the share of the co$ered employee shallbe considered integrated in their wages

4.%. Intration

7. T5irtnt5 21$t53 Mont5 Pa6 an) ot5r *onuss

Concept:

Benefit a 16th month pay for employees whose salary was not more than1,>>>".

*emption, +ec. 2 those already paying eDui$alent.

Syllabus for 2011 Bar Examinations in Labor Law 3*

AZUCENA:

TIPS are handled similarly as service charges.

If a restaurant or similar establishment does not collect servicecharges, but has a practice or policy of monitoring and pooling the tipsgiven by customers, the pooled tips should be accounted for anddistributed in the same manner as the service charges. In manyrestaurants, a waiter must drop in a tip box the tips he received;otherwise, he commits tip pocketing, a serious offense of dishonesty


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'mplementing 4ules dated ecember 22, 197 pro$ided for who are co$ered $s. whosewho are not co$ered, issued by then +ec. Blas /ple.

P August 16, 198, resident Corazon C. ADuino issued Hemorandum /rder 2

P rilon guideline, issued on 0o$ember 18, 19

Basic 3eature remo$ed of ceiling (1,>>>)

;hen payment is made 00

a) before opening of regular school year days, for being daily paid employee, is entitled. /therwise, the 1 year would be short of= days (if 8 woring days) on short of 98 days (if 7 woring days a year).

;ho are covered 00

a) Commission paid employeesS1) urely commission 0/2) 5uaranteed wage Q commission L+!AC';E (%EC) $s. 04C, 2= +C4A 278, 28> (1997)#

b) 5o$?t. employees on part timeri$ate employment L+

c) ri$ate school teachers L+, regardless of months taught - ro$ided taught at least +month

7.'. E9!lusion


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eDui$alent to 112 of the total basic salary he earned during that period. !International School of Speechvs. )#*+ and .+. amuyac, .*. )o. //72=3, arch /3, /44=#

+th month pay is a Nonstrikea/le %ssue

ifference on how to compute the 16th month pay does not &ustify a strie< in other words, it is anonstrieable issue and a strie held on that ground is an illegal strie.

7.%. GCoissions vis?@?vis 1$t5 ont5 0a6

'f the commissions may properly be considered part o" the /asic salary, they should beincluded in computin the +thmonth pay. 'f the commissions are not interal partof thebasic salary, then they should /e eGcluded. ;hat commissions are part of the salary and whatcommissions are not, are illustrated respecti$ely in the hilippine uplicators? and the Boie-%aeda?s types of commission. %hat of )hilippine (uplicators is


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he wored during the year, reconed from the time he started woring during the calendaryear up to the time of his separation. !)asa' vs. "acienda Consolacion, 8.$. No.+4772, 'pril +6, 25+5, "el +astillo, :.#

&. Won Wor/rs

&.1. Dis!riination 2Art. 1$+, LC3

Art. 13. Discrimination &rohiited. It shall be unlawful for anyemployer to discriminate against any woman employee with respect to terms andconditions of employment solely on account of her se".

The following are acts of discrimination%'a2 8ayment of a lesser compensation, including wage, salary or other

form of remuneration and fringe benefits, to a female employees as against amale employee, for wor of equal value& and

'b2 @avoring a male employee over a female employee with respect topromotion, training opportunities, study and scholarship grants solely onaccount of their se"es.

#riminal liability for the willful commission of any unlawful act asprovided in this $rticle or any violation of the rules and regulations issuedpursuant to Section / hereof shall be penalized as provided in $rticles /11 and/10 of this #ode% 8rovided, That the institution of any criminal action under thisprovision shall not bar the aggrieved employee from filing an entirely separateand distinct action for money claims, which may include claims for damages andother affirmative reliefs. The actions hereby authorized shall proceedindependently of each other. '$s amended by )epublic $ct !o. *+/, ay /,0102

*. Sti0ulation aainst arria 2Art. 1$4, LC3

Art. 13. Stiplation a$ainst marria$e.It shall be unlawful for anemployer to require as a condition of employment or continuation ofemployment that a woman employee shall not get married, or to stipulatee"pressly or tacitly that upon getting married, a woman employee shall bedeemed resigned or separated, or to actually dismiss, discharge, discriminate orotherwise prejudice a woman employee merely by reason of her marriage.

!. Pro5i*it) A!ts 2Art. 1$7, LC3

Art. 137. Proibite! acts.

'a2 It shall be unlawful for any employer%

'2 To deny any woman employee the benefits provided for inthis #hapter or to discharge any woman employed by himfor the purpose of preventing her from enjoying any of the

benefits provided under this #ode.'/2 To discharge such woman on account of her pregnancy, or

while on leave or in confinement due to her pregnancy&'(2 To discharge or refuse the admission of such woman upon

returning to her wor for fear that she may again be

pregnant.

). Classi-i!ation o- !rtain 8on 8or/rs 2Art. 1$&, LC3



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. Anti?S9ual ;arassnt A!t 2RA 7&773

1. +e*ual harassment is an imposition of misplaced superiority which is enough to dampenan employee?s spirit in her capacity for ad$ancement. 't affects her sense of &udgment, it changes her life.'f for this alone, pri$ate respondent should be adeDuately compensated !)hil. 'eolus, 'nfra#

%he gra$amen of the offense in se*ual harassment is not the violationof the employee?s se*ually

/ut the a/use of power by the employer. Any employee, male or "emale,may rightfully cry foul"pro$ided the claim is well substantiated. +trictly speaing, there is no time period >,+econd i$ision, Bellosillo, :.#

2. ersons who may be liable for se*ual harassment

Any person who directs or induces another to commit any act of se*ual harassmentas defined in the law, or who cooperates in the commission thereof by anotherwithout which it would not ha$e been committed, shall also be held liable under thelaw. !Section , *epublic ;ct )o. 6366#

6. +e*ual Jarassment in a ;or-4elated or mployment n$ironment

committed


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In the above-e"ceptional cases where any such child may be employed, theemployer shall first secure, before engaging such child, a wor permit from the7epartment of 4abor and 9mployment which shall ensure observance of theabove requirements.

@or purposes of this $rticle, the term 3child3 shall apply to all personsunder eighteen '12 years of age.3

".1. Rulation o- 8or/in 5ours o- a !5il)

Sec. 2-A. #ours of "ork of a "orking %hild. - Gnder thee"ceptions provided in Section / of this $ct, as amended%

'2 $ child below fifteen '2 years of age may be allowed to wor for notmore than twenty '/C2 hours a wee%Provided, That the wor shall not be morethan four '


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1#. E0lo6nt o- ;ous5l0rs

Art. 141. Co'era$e.This #hapter shall apply to all persons renderingservices in households for compensation.

""" """ """

1#.1. D-inition

3Domestic or oseol! ser'ice3 shall mean service in the employerHshome which is usually necessary or desirable for the maintenance and enjoymentthereof and includes ministering to the personal comfort and convenience of themembers of the employerHs household, including services of family drivers.

1#.'. Bn-its a!!or)) 5ous5l0rs

Art. 143. )inimm a$e.

'a2 =ousehelpers shall be paid the following minimum wage rates%'b2 9ight hundred pesos '81CC.CC2 a month for househelpers in

anila, Muezon, 8asay, and #aloocan cities and municipalities of aati, SanKuan, andaluyong, untinlupa, !avotas, alabon, 8araNaque, 4as 8iNas,8asig, ariina, ;alenzuela, Taguig and 8ateros in etro anila and in highlyurbanized cities&

'c2 Si" hundred fifty pesos '8*C.CC2 a month for those in otherchartered cities and first-class municipalities& and

'd2 @ive hundred fifty pesos '8C.CC2 a month for those in othermunicipalities.

8rovided, That the employers shall review the employment contracts oftheir househelpers every three '(2 years with the end in view of improving theterms and conditions thereof.

8rovided, further, That those househelpers who are receiving at least :nethousand pesos '8,CCC.CC2 shall be covered by the Social Security System 'SSS2and be entitled to all the benefits provided thereunder. '$s amended by )epublic

$ct !o. +*, $ugust 0, 00(2

1#.$. Trination

Art. 10. Ser'ice of termination notice. If the duration of thehousehold service is not determined either in stipulation or by the nature of theservice, the employer or the househelper may give notice to put an end to therelationship five '2 days before the intended termination of the service.

1#.%. Rli-s -or unHust trination

Art. 149. ,n!emnity for nst termination of ser'ices. If theperiod of household service is fi"ed, neither the employer nor the househelpermay terminate the contract before the e"piration of the term, e"cept for a justcause. If the househelper is unjustly dismissed, he or she shall be paid thecompensation already earned plus that for fifteen '2 days by way of indemnity.

If the househelper leaves without justifiable reason, he or she shall forfeitany unpaid salary due him or her not e"ceeding fifteen '2 days.



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11. E0lo6nt o- ;o8or/rsLabor Code

A. 13. !egulation of ndustrial #omeworkers.>Theemployment of industrial homeworers and field personnel shall be regulated by

the Bovernment through appropriate regulations issued by the Secretary of 4aborto ensure the general welfare and protection of homeworers and field personnelthe industries employing them.

a. D-inition

DO 'o& )

Regulations on *mplo+ment of Home,orkers

S"C. 2. Definitions.>'a2 E,n!strial ;omeor+F is a system of production under which

wor for an employer or contractor is carried out by a homeworer at his6herhome. aterials may or may not be furnished by the employer or contractor.

It differs from regular factory production principally in that, it is adecentralized form of production where there is ordinarily very little supervisionor regulation of methods of wor.

'b2 E,n!strial ;omeor+erF means a worer who is engaged inindustrial homewor.

*. Ri5ts an) *n-its a!!or)) 5o8or/rs

S"C. . Payment for homework.>Immediately upon receipt ofthe finished goods or articles, the employer shall pay the homeworer or thecontractor or subcontractor, as the case may be, for the wor performed lesscorresponding homeworersH share of SSS, 97I#$)9 and 9## premiumcontributions which shall be remitted by the contractor6subcontractor oremployer to the SSS with the employersH share. =owever, where payment ismade to a contractor or subcontractor, the homeworer shall liewise be paidimmediately after the goods or articles have been collected from the worers.

!. Con)itions -or ))u!tion -ro 5o8or/rs arnins

S"C. 8. Deductions.>!o employer, contractor, or subcontractorshall mae any deduction from the homeworerHs earnings for the value ofmaterials which have been lost, destroyed, soiled or otherwise damaged unlessthe following conditions are met%

'a2 the homeworer concerned is clearly shown to be responsible forthe loss or damage&

'b2 the homeworer is given reasonable opportunity to show causewhy deductions should not be made&

'c2 the amount of such deduction is fair and reasonable and shall note"ceed the actual loss or damage& and

'd2 the deduction is made at such rate that the amount deducted doesnot e"ceed /CA of the homeworerHs earnings in a wee.

Syllabus for 2011 Bar Examinations in Labor Law 4(


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1'. A00rnti!s an) Larnrs

R$ --./

0*SD$

S"C. 4. Definition of *erms.


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-#;E@E$,'n order to be an apprentice, the apprenticeship program the worer agreed to undergo should first

be appro$ed by the / (now transferred to %+A) before he can be hired as an apprentice./therwise, the person hired will be considered a regular employee. !Centur' Canning Corporation v.Court of Appeals, supra#

BUT,A prior appro$al obtained from / (now transferred to %+A) is a preliminary step towards its

final appro$al. %hus, pending final appro$al of the apprenticeship program upon a personFs assumption ofwor does not instantaneously gi$e rise to employer-employee relationship. !Centur' CanningCorporation v. Court of Appeals, supra#

4epublic Act 0o. 98, which created %+A, has transferred the authority o$erapprenticeship of the / to the %+A. 4A 98 emphasizes %+AFs appro$al ofthe apprenticeship program as a pre-reDuisite for the hiring of apprentices. ! Centur'Canning Corporation v. Court of Appeals, supra#

%he reDuisite %+A appro$al of the apprenticeship program prior to the hiring of apprentices wasfurther emphasized by the / with the issuance of epartment /rder 0o. 8->= on 1 August 2>>=***, which pro$ides the guidelines in the implementation of the Apprenticeship and mployment rogramof the go$ernment, !and which# specifically states that no enterprise shall be allowed to hire apprentices

unless its apprenticeship program is registered and appro$ed by %+A. !Centur' Canning Corporationv. Court of Appeals, supra#

There is no valid apprenticeship i":(1) the agreement submitted to %+A was made long after the worers started

undergoing apprenticeship4earners are persons hired astrainees in semi-silled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job ina relatively short period of time which shall not e"ceed three '(2 months.

A. 74. =en learners may be ire!.>4earners may beemployed when no e"perienced worer, are available, the employment of learnersis necessary to prevent curtailment of employment opportunities, and theemployment does not create unfair competition in terms of labor costs or impairor lower woring standards.

'))$ENT%CES-%) *E'$NE$S-%)

)eriod o" trainin not to e*ceed si* months !Art. 81, C# 0ot to e*ceed three (6) months !Art.7, C#

Type o" ;ork Jighly technical wor in an 'ndustry!Art. 8>, C#

+emi-silled and other 'ndustrialwor !Art. 6, C#

Ouali"ications At least 1=

years of age with ;hen no e*perienced worer is



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$ocational aptitude and capacity, andability to comprehend and follow oraland written instructions !Art. 79, C#

a$ailable in the industry !Art. =, C#

Salary 0ot less than 7N of applicableminimum wage, !Art. 81, C# EACE)Tif training is reDuired by the school ortraining program, or reDuisite forgraduation or board e*amination. !Art.

2, C#

0ot less than 7N of applicableminimum wage, !Art. 7, C#EACE)T for learners in piecewor,where salary shall be paid inaccording to the minimum wage

imposed. !Art. 8, C#

1$. ;an)i!a00) Wor/rs 2RA 7'773

Sec. 4. Definition of erms. > @or purposes of this $ct, these termsare defined as follows%

'a2 Disable! persons are those suffering from restriction or differentabilities, as a result of a mental, physical or sensory impairment, to perform anactivity in the manner or within the range considered normal for a human being&

1$.1. D-inition o- 5an)i!a00) 8or/rs

Sec. 4. Definition of erms. > @or purposes of this $ct, these termsare defined as follows%

'd2 =andicap refers to a disadvantage for a given individual, resultingfrom an impairment or a disability, that limits or prevents the function oractivity, that is considered normal given the age and se" of the individual&

1$.'. Ri5ts o- )isa*l) 8or/rs

Sec. . "al 5pportnity for "mployment. > !o disable personshall be denied access to opportunities for suitable employment. $ qualifieddisabled employee shall be subject to the same terms and conditions ofemployment and the same compensation, privileges, benefits, fringe benefits,incentives or allowances as a qualified able bodied person.

@ive percent 'A2 of all casual emergency and contractual positions in the7epartments of Social ?elfare and 7evelopment& =ealth& 9ducation, #ulture andSports& and other government agencies, offices or corporations engaged in socialdevelopment shall be reserved for disabled persons.

Sec. . Seltere! "mployment > If suitable employment for disabledpersons cannot be found through open employment as provided in theimmediately preceding Section, the State shall endeavor to provide it by means ofsheltered employment. In the placement of disabled persons in shelteredemployment, it shall accord due regard to the individual qualities, vocationalgoals and inclinations to ensure a good woring atmosphere and efficientproduction.

Sec. 7. Apprenticesip. > Subject to the provisions of the 4abor #odeas amended, disabled persons shall be eligible as apprentices or learners%8rovided, That their handicap is not as much as to effectively impede theperformance of job operations in the particular occupation for which they arehired& 8rovided, further, That after the lapse of the period of apprenticeship, iffound satisfactory in the job performance, they shall be eligible for employment.

1$.$. Pro5i*itions on )is!riination aainst )isa*l 0rsons

Sec. 32. Discrimination on "mployment. > !o entity, whetherpublic or private, shall discriminate against a qualified disabled person by reason

Syllabus for 2011 Bar Examinations in Labor Law 4*


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of disability in regard to job application procedures, the hiring, promotion, ordischarge of employees, employee compensation, job training, and other terms,conditions, and privileges of employment. The following constitute acts ofdiscrimination%

'a2 4imiting, segregating or classifying a disabled job applicant in such amanner that adversely affects his wor opportunities&

'b2 Gsing qualification standards, employment tests or other selectioncriteria that screen out or tend to screen out a disabled person unless suchstandards, tests or other selection criteria are shown to be job-related for theposition in question and are consistent with business necessity&

'c2 Gtilizing standards, criteria, or methods of administration that%'2 have the effect of discrimination on the basis of disability& or'/2 perpetuate the discrimination of others who are subject to

common administrative control.'d2 8roviding less compensation, such as salary, wage or other forms of

remuneration and fringe benefits, to a qualified disabled employee, by reason ofhis disability, than the amount to which a non-disabled person performing thesame wor is entitled&

'e2 @avoring a non-disabled employee over a qualified disabled employeewith respect to promotion, training opportunities, study and scholarship grants,solely on account of the latterDs disability&

'f2 )e-assigning or transferring a disabled employee to a job or position hecannot perform by reason of his disability&

'g2 7ismissing or terminating the services of a disabled employee byreason of his disability unless the employer can prove that he impairs thesatisfactory performance of the wor involved to the prejudice of the businessentity% 8rovided, however, That the employer first sought to provide reasonableaccommodations for disabled persons&

'h2 @ailing to select or administer in the most effective manneremployment tests which accurately reflect the sills, aptitude or other factor ofthe disabled applicant or employee that such tests purports to measure, ratherthan the impaired sensory, manual or speaing sills of such applicant oremployee, if any& and

'i2 9"cluding disabled persons from membership in labor unions orsimilar organizations.

1$.%. In!ntivs -or 0lo6rs

Sec. 8. ,ncenti'es for "mployers. > 'a2 To encourage the activeparticipation of the private sector in promoting the welfare of disabled personsand to ensure gainful employment for qualified disabled persons, adequate

incentives shall be provided to private entities which employ disabled persons.

N#TESD

;here a disabled is Dualified to do the wor of an able-bodied, Art. 2> applies.'n such case, security of tenure is 0/% sub&ect to Art. >(c) of the abor Code where (c)the duration of employment period" should be agreed upon by the parties, 0/4 to Art.>(b) thereof where her salary rate shall not be less than 7N of the applicable legalminimum wage". +he will be treated as if she is able-bodied guaranteed by Arts. 2>,21, 22, 26, 28, 2(b), 29 of the Code. !aritess )ernardo vs. NRLC, July +2,+666, and cited laws#



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D. TERMINATION O

Documents

78498741 Ateneo Labor Law Reviewer Part 1