LABOR LAWVicente S.E. VelosoA.FUNDAMENTAL PRINCIPLES AND POLICIES1. Constitutional Provisions1.1.Art II, Secs. 9, 10, 11, 13, 14, 18, 20Declaration of Principles and State PoliciesSection 9.The State shall promote a just and dynamic social order that will ensuretheprosperityandindependenceofthenationandfreethepeople 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.Section10.The State shall promote social justice inall phases of national development.Section11.TheStatevalues thedignityof everyhumanpersonand guarantees full respect for human rights.Section13.TheStaterecognizesthevital roleoftheyouthinnation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, 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. It shall protect the rights of workers and promote their welfare.Section20.TheStaterecognizestheindispensableroleoftheprivate sector, encourages private enterprise, and provides incentives to needed investments.1.2.Art III, Secs. 1, 4, 8Bill of RightsSection 1. No person shall be deprived of life, liberty, or property without due process oflaw,norshallany personbe denied the equalprotectionofthe laws.Section 4.Nolawshallbepassedabridgingthefreedomofspeech,of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.Section8.Theright of thepeople, includingthoseemployedinthe public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.Syllabus for 2011 Bar Examinations in Labor Law 11.3. Art. XIII, Secs. 1, 2, 3, 14Section 1.The Congress shall give highest priority to the enactment of measures 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, and disposition of property and its increments.Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.Social Justice and Human RightsN.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 workers, self-employed people, rural workers and those without any definite employers [who may form labor organizationsfor their mutual aidandprotection] donot havetheright toself-organization.They too are covered by the injunction that It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with (said) employees in their exercise of the right to self-organization. (at least on concerted activities)------------Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees have the right to form, join or assist labor organizations for the purpose of collective bargainingor for their mutual aidandprotection. Theconstitutional right toself-organizationisbetter understood in the context of ILO Convention No. 87 (Freedom of Association and Protection of Right to Organize), to which the Philippines is a signatory. [UST Faculty Union v. Bitonio, Jr., G.R. No. 131235, November 16, 1999, 318SCRA185,Panganiban,J.] Workers andemployers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to joborganizations of their ownchoosingwithout previous authorization; [StandardCharteredBank Employees Union (NUBE) v. Confesor, G.R. No. 114974, June 16, 2004, 432 SCRA 308, 320-321]and that workers'organizations shallhave the right to draw up their constitution and rules and to elect their representatives in full freedom, free from any interference from public authorities.[UST Faculty Union v. Bitonio, Jr., supra]LaborSection3.The State shall affordfull protectiontolabor, local and overseas, organized and unorganized, andpromote full employment and equality of employment opportunities for all.It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right tostrikeinaccordancewithlaw. Theyshall beentitledtosecurityof tenure, humaneconditionsof work, andalivingwage. Theyshall alsoparticipatein policy and decision-making processes affecting their rights and benefits as may be provided by law.TheStateshall promotetheprincipleof sharedresponsibilitybetween workersand employers and thepreferentialuse ofvoluntarymodes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.Syllabus for 2011 Bar Examinations in Labor Law 2TheStateshall regulatetherelationsbetweenworkersandemployers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.WomenSection 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.2. Civil CodeContract of LaborArticle1700.Therelationsbetweencapital andlaborarenot merely contractual. They are so impressed with public interest that labor contracts must yield tothecommon good.Therefore,suchcontracts are subject to thespecial lawsonlaborunions, collectivebargaining, strikesandlockouts, closedshop, wages, working conditions, hours of labor and similar subjects. 3. Labor Code3.1.Article 3Art. 3. Declaration of basic policy.The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.3.2.Article 211Art. 211. Declaration of Policy.A. It is the policy of the State:a. To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;b. To promote free trade unionismas an instrument for the enhancement of democracy and the promotion of social justice and development;c. Tofoster the free andvoluntary organizationof astrong and united labor movement;d. To promote the enlightenment of workers concerning their rights and obligations as union members and as employees;e. To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes;f. To ensure a stable but dynamic and just industrial peace; andg. a. Toensure the participationof workers indecisionand policy-making processes affecting their rights, duties and welfare.B. To encourage a truly democratic method of regulating the relations between the employers 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 fix wages, rates of pay, hours of work or other terms and conditions of employment, except asotherwiseprovidedunderthisCode.(AsamendedbySection3, RepublicActNo. Syllabus for 2011 Bar Examinations in Labor Law 36715, March 21, 1989)3.3.Article 212Art. 212. Definitions.a. "Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code.b. "Bureau" means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices established under Presidential Decree No. 1, in the Department of Labor.c. "Board"meanstheNational ConciliationandMediationBoard established under Executive Order No. 126.d. "Council" means theTripartiteVoluntaryArbitrationAdvisory Council established under Executive Order No. 126, as amended.e. "Employer" includes any personacting inthe interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer.f. "Employee" includes any personinthe employof an employer. The term shall not be limited to the employees of a particular employer, unless theCodesoexplicitlystates. It shall includeanyindividual whoseworkhas ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.g. "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargainingor of dealingwithemployers concerningterms andconditions of employment.h. "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof.i. "Company union" means any labor organization whose formation, functionoradministrationhasbeenassistedbyanyactdefinedas unfair labor practice by this Code.j. "Bargaining representative"means a legitimate labor organization whether or not employed by the employer.k. "Unfair labor practice" means any unfair labor practice as expressly defined by the Code.l. "Labor dispute" includes any controversy or matter concerning terms andconditions of employment or theassociationor representationof persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardlessof whether thedisputantsstandinthe proximate relation of employer and employee.m. "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are 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. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book.n. "Voluntary Arbitrator" means any person accredited by the BoardassuchoranypersonnamedordesignatedintheCollectiveBargaining Agreement by the parties to act as their Voluntary Arbitrator, or one chosen with or without the assistance of the National ConciliationandMediationBoard, pursuant to a selection procedure agreed upon inthe Collective Bargaining Agreement, or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute.o. "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.Syllabus for 2011 Bar Examinations in Labor Law 4p. "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.q. "Internal uniondispute" includes all disputes or grievances arising fromany violation of or disagreement over any provision of the constitutionandbylawsof aunion, includinganyviolationof therightsand conditions of union membership provided for in this Code.r. "Strike-breaker"means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining.s. "Strike area" means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struckagainst, as well as the immediate vicinity actually usedby picketing strikers in moving to and fro before all points of entrance to and exit fromsaidestablishment.(As amendedbySection4, Republic Act No. 6715, March 21, 1989) d. Article 255Art. 255. Exclusive bargaining representation and workers participation in policy and decision-making.The labor organization designated or selected by the majority of the employees inanappropriate collective bargaining unit shall be the exclusive representative of the employees insuchunit forthepurposeof collectivebargaining. However, anindividual employeeor groupof employees shall havetheright at anytimetopresent grievances to their employer. Principle of Co-Determination [2007 BAR Examinations]B.RECRUITMENT AND PLACEMENT1.Recruitment of Local and Migrant Workers1.1.Recruitment and placement; definedArt. 13. Definitions.--xxx xxx(b) "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiringorprocuringworkers, and includesreferrals, contractservices, promisingoradvertisingforemployment, 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.1.2.Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant Workers Act, RA 8042Labor CodeArt. 38. Illegal recruitment.a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.b. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be Syllabus for 2011 Bar Examinations in Labor Law 5penalized in accordance with Article 39 hereof.Illegal recruitment is deemed committed by a syndicate if carried out by a groupof three(3)ormorepersonsconspiringand/orconfederatingwithone another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.c. TheSecretaryof LaborandEmployment orhisdulyauthorized representativesshall havethepowertocausethearrestanddetentionofsuch non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. see: Sec. 6, RA 80421.2.1.License vs. AuthorityArt. 13. Definitions.xxx xxx xxx(d) "License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency.xxx xxx xxx(f) "Authority" means adocument issuedby the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.NOTES :RECRUITMENT AND PLACEMENTAny act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers,And includes referrals, contract services, promising or advertisingforemployment, locallyor abroad, whether for profit or not.LICENSE Document issued by DOLE authorizing a person/entity to operate a private fee-charging agency [Art. 13(c) and (d), LC]AUTHORITY Document authorizing a person/association to engage in recruitment and placement activities as a private recruitment entity, i.e., not for a fee. [Art. 13(f)] It should be noted that the definition of recruitment and placement in Art. 13(b), does not make any of the eleven (11) acts enumerated therein illegal per se.What makes it a case of illegal recruitment is when any of said recruitment activities are undertaken by non-licensees or non-holders of authority. [Art. 38(a)]Such that an employee, who introduces an applicant to owner-employeragency, committedanact of referral, a recruitment activity. Thereisan illegal recruitment when one gives the impression of having the ability to send a worker abroad. [People vs. Goce, 247 SCRA 780, 789 (1995)] A non-licensee means a person, corporation or entity to which the labor secretary has not issued a valid license or authority to engage in recruitment and placement; or whose license or authority has been suspended, revoked, or cancelled by the POEA or the labor secretary.A licensee authorizes a person or an entity to operate a private employment agency, while authority is given to those engaged in recruitment and placement activities. [Rodolfo vs. People, G.R. No. 146964, August 10, 2006] When a person or entity, in any manner, offers or promises for a fee employment to two Syllabus for 2011 Bar Examinations in Labor Law 6or more persons, that person or entity shall be deemed engaged in recruitment and placement. [People vs. Laogo, G.R. No. 176264, January 10, 2011, Villarama, J.]1.2.2.Essential elements of illegal recruitmentEssential Elements of Illegal Recruitment(1) Offender is:(a) a non-licensee or a non-holder of authority; or(b) a licensee or holder of authority;(2) (a) Non-licensee/non-holder of authority commits any of the 24 infractions (11 in Art. 13(b), and 13 in Sec. 6, RA 8042)(b) Licensee/holder of authority commits any of the 14 infractions under Sec. 6, RA 8042.1.2.3. Simple illegal recruitment* Illegal recruitment maybecommittedwhenanon-licenseeoranon-holderof authority performs any of the 11 acts of recruitment and placement under Art. 13(b) of the Labor Code.While Art. 34 makes a distinction between:(a) Prohibited practices when committed by a licensee or holder of authority; and(b) Illegalrecruitment when suchprohibited practices were committedbya non-licensee or non-holder of authority.BUT,RA 8042 removed this distinction and redefined illegal recruitment as follows:(a) charging an amount greater than that specified;(b) publishing false notice in relation to recruitment;(c) giving away false information or any act of misrepresentation for securing a license/authority;(d) inducing a worker to quit present work in place of anotherUNLESS, to free the worker from oppressive terms and conditions;(e) influencing any person/entity not to employ a worker who has not applied through the formers agency;(f) recruiting workers in jobs that are harmful to public health or morality;(g) obstructing inspection by the Secretary of Labor;(h) failing to file reports as required by the Secretary;(i) substituting or altering DOLE-approved employment contracts;(j) becoming a Board member of a travel agency, directly or indirectly;(k) withholding applicant workers travel documents for monetary considerations;(l) failing to actually deploy a worker without a valid reason; and(m) in case of non-deployment of worker without his fault, failing to reimburse expenses the latter incurred.In sum,E a non-licensee can be guilty of 24 illegal recruitment acts:o 11 acts under Art. 13(b)o 13 illegal recruitment acts under Sec. 6, RA 8042E alicenseecanbeliableonlyfor13illegal recruitment/prohibitedacts(under Sec. 6, RA 8042), UNLESS he conspires with a non-licensee in the commission of any of the illegal acts in Art. 13(b).1.2.4. Illegal recruitment in large scale Illegal recruitment is a matter of evidence. [People vs. Panis, 142 SCRA 664 (1986)] Illegal recruitment becomes economic sabotage if:LARGE SCALE SYNDICATESyllabus for 2011 Bar Examinations in Labor Law 73 or more victims 3 or more conspirators If only 1 victim, the burden of proof is on the accuser.But if there are 2 or more victims, the accused is disputably presumed to have committed illegal recruitment. [Sec. 6, RA 8042, cited in People vs. Panis, supra]1.2.5. Illegal recruitment as economic sabotageSECTION 6. Definition. xxx xxx xxx(m) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and1.2.6. Illegal Recruitment vs. EstafaArt. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:xxx the fraud be committed by any of the following means:1. With unfaithfulness or abuse of confidence, namely: xxx xxx xxx(b) By misappropriating or converting, to the prejudice of another, money, goods, oranyotherpersonal propertyreceivedbytheoffenderintrustoron commission, or for administration,or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totallyorpartiallyguaranteedbyabond; orbydenyinghavingreceivedsuch money, goods, or other xxx xxx xxx2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending topossess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. xxx xxx xxx* Any recruitment activities to be undertaken by non-licensee or non-holder of contracts shall be deemed illegal and punishable under Art. 39 of the Labor Code. [People vs. Jamilosa,512 SCRA 340 (2007)]* Absenceof moneyor anyvaluableconsiderationaspayment for servicesof the recruiter still considers the recruitment illegal under Art. 13(b) of the Labor Code as recruitment maybe for profit or not. [People vs. Jamilosa, supra]1.2.7. LiabilitiesSECTION 10.Money claims.Theliabilityof theprincipal/employer andtherecruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all moneyclaims or damages that may beawardedtotheworkers. If the recruitment/placement agencyis ajuridical being, thecorporateofficers and directors andpartners as the case may be, shall themselves be jointly and solidarilyliable 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.Syllabus for 2011 Bar Examinations in Labor Law 8(a)local employment agency(b)foreign employerTheory of imputed knowledge( Theso-calledtheoryof imputedknowledge, that is, knowledgeof the agent is knowledge of the principal. [New Life vs. CA, G.R. No. 94071 March 31, 1992]For the liability of the agent to attach, this theory states that the agent knew of andconsentedtotheextensionof periodof employment. Otherwise, the liability of the recruitment agency shall expire fromthe termination of the worker's original contract.[SUNACE INTERNATIONAL MANAGEMENT vs. NLRC, G.R. No. 161757, January 25, 2006, Carpio Morales, J.]1.2.8. Pre-termination of contract of migrant workerNOTES:Rules on Repatriation of Overseas Workers(1) Without fault of theworker, hisrepatriationshall bebornebythelocal agency and/or principal over the:a. worker and his personal belongings;b. remains of the deceased worker and his personalbelongings [Sec. 15, par. 1, RA 8042](2) Repatriationduetothefault of migrant workershall bebornebythemigrant worker. [Sec. 15, par. 1, RA 8042](3) Repatriation in cases of war, epidemic, disasters/calamities, or other similar events shall be borne by OWWA, without prejudice to reimbursement by the principal or local agency. [Sec. 15, par.2, RA 8042](4) Repatriation of underage migrant worker shall be mandatory upon discovery, done by the responsible officers of the foreign service where the underage migrant worker is found. [Sec. 16, RA 8042](5) Repatriation of seafarerPOEA Memo Circular No. 55-96 provides that a seaman can be repatriated without cause if the vessel arrives at a convenient port within 3 months before the expiration of his contract, BUT only upon payment of:a. all his earned wages;b. leave pay for the entire contract;c. termination pay of 1 month basic salary, IF seaman has at least 10 months original contract. [PCL Shipping Phils. vs. NLRC,G.R. No. 153031, December 14, 2006, Austria-Martinez, J.]1.3.Direct hiringArt. 18. Ban on direct-hiring. No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor.Direct-hiring by members of the diplomatic corps, international organizationsand such other employers as may be allowed by the Syllabus for 2011 Bar Examinations in Labor Law 9Secretary of Labor is exempted from this provision.2.Regulation and EnforcementArt. 16. Private recruitment. Except as provided in Chapter II of this Title, no person or entity other than the public employment offices, shall engage in the recruitment and placement of workers.Art. 25. Private sector participationinthe recruitment and placementofworkers.Pursuanttonational developmentobjectivesandin order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locallyandoverseas, under suchguidelines, rulesand regulations as may be issued by the Secretary of Labor.Art. 26. Travel agencies prohibited to recruit.Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.Art. 27. Citizenship requirement.Only Filipino citizens or corporations,partnershipsor entities atleast seventy-fivepercent (75%)ofthe authorized and voting capital stock of which is owned and controlled by Filipino citizensshall bepermittedtoparticipateintherecruitment andplacementof workers, locally or overseas.Art. 28. Capitalization.All applicants for authority to hire or renewal of license torecruit are requiredto have suchsubstantial capitalizationas determined by the Secretary of Labor.Art. 29. Non-transferability of license or authority.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 be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor.Art. 30. Registration fees.The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority.Art.31.Bonds.All applicantsforlicenseorauthorityshall postsuch cashandsuretybondsasdeterminedbytheSecretaryof Labortoguarantee compliancewithprescribedrecruitment procedures,rules andregulations,and terms and conditions of employment as may be appropriate.Art. 32. Feestobepaidbyworkers.Anypersonapplyingwitha private fee-charging employment agency for employment assistance shall not be chargedanyfeeuntil hehasobtainedemployment throughitseffortsorhas actuallycommencedemployment. Suchfeeshall bealways coveredwiththe appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees.Art. 33. Reports onemployment status.Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title tosubmit areport onthe status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, Syllabus for 2011 Bar Examinations in Labor Law 10other terms and conditions and other employment data.2.1.Remittance of foreign exchange earningsArt. 22. Mandatory remittance of foreign exchange earnings.It shall bemandatoryforall Filipinoworkersabroadtoremitaportionoftheir foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor.2.2.Prohibited activitiesArt. 34. Prohibited practices.It shall be unlawful for any individual, entity, licensee, or holder of authority:(a) To charge or accept, directly or indirectly, any amount greater than thatspecifiedinthescheduleofallowablefeesprescribedbytheSecretaryof Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) Togiveanyfalsenotice, testimony, informationordocumentor commit anyact of misrepresentationforthepurposeof securingalicenseor authority under this Code. (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; (f) Toengageintherecruitment or placement of workers injobs harmful topublichealthormoralityortothedignityof theRepublicof the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; (h) Tofail tofilereports onthestatus of employment, placement vacancies, remittance of foreign exchange earnings, separation fromjobs, departuresandsuchothermattersorinformationasmayberequiredbythe Secretary of Labor. (i) 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; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and (k) Towithholdor denytravel documents fromapplicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. 2.3.Regulatory and visitorial powers of the Labor SecretaryArt. 14. Employment promotion.The Secretary of Labor shall have the power and authority:(a) To organize and establish new employment offices in addition to theexistingemployment offices under theDepartment of Labor astheneed arises;(b) Toorganizeandestablishanationwidejobclearanceandinformation Syllabus for 2011 Bar Examinations in Labor Law 11system to inform applicants registering with a particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;(c) To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provide assistance in the relocation of workers from one area to another; and(d) Torequireanyperson,establishment, organizationor institution to submit such employment information as may be prescribed by the Secretary of Labor. Art. 36. Regulatorypower.TheSecretaryof Labor shall havethe powertorestrict andregulatetherecruitment andplacement activitiesof all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.Art. 37. Visitorial Power.The Secretary of Labor or his duly authorizedrepresentatives may, at any time, inspect thepremises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title.NOTES:* TheSupremeCourt declaredArt. 38, par. (c) unconstitutional andnull andvoid, stating that only a judge may issue warrants of search and arrest. [Hortencia Salazar vs.Tomas D. Achacoso and Ferdie Marquez, G.R. No. 81510, March 14, 1990]2.4.Penalties for illegal recruitmentArt. 35. Suspension and/or cancellation of license or authority. The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.Art. 39. Penalties.(a) The penalty of life imprisonment andafine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; (b) Anylicensee or holder of authority foundviolating or causing another toviolate anyprovisionof this Title or its implementingrules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; (c) Anypersonwhoisneitheralicenseenoraholder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; (d) If the offender is a corporation, partnership, association or entity, thepenaltyshall beimposedupontheofficer or officers of thecorporation, partnership, association or entity responsible for violation; and if such officer is analien, heshall, inadditiontothepenaltieshereinprescribed, bedeported without further proceedings; (e) Inevery case, convictionshall cause andcarry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Syllabus for 2011 Bar Examinations in Labor Law 12Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. a)Licensing of and Administrative Complaints against Recruitment AgenciesLOCAL RECRUITMENT AGENCYWhere to file: DOLE Regional OfficeWho issues license: DOLE Regional DirectorWho revokes/cancels license: DOLE Regional DirectorBLE copy furnished of all Orders for DatabaseOVERSEAS RECRUITMENT AGENCYWhere to file: POEA Director of Licensing & Regulatory Office (LRO), which office is under the wing of the Deputy Administrator for Adjudication and Employment Regulation.Who issues license: POEA Director of LROWho revokes/cancels license: POEA Director of LROEXCEPT, in case of ILLEGAL RECRUITMENT:1 Under the POEA Rules on Overseas Land-based Employment (2002), both the POEA Administrator and DOLE Regional Director has the power to issue a CLOSURE ORDER against an erring overseas recruitment and manning agency.2BUT, Under the new Omnibus Rules Implementing RA 10022 (amendment to RA 8042), it is the POEA Administrator who has the authority to issue a CLOSURE ORDER upon preliminary finding of guilt against an overseas recruitment agency. [Sec. 11]HOWEVER, Prior to the issuance of a CLOSURE ORDER, an investigation takes place whereby the POEA Administratormayissueapreventivesuspensionupontherecommendationof thePOEA Director of LRO. [Sec. 9, Omnibus Rules implementing RA 10022]Closure Order may be lifted upon filing a Motion before the POEA DirectorofLRO, which motion shallbe resolved by the POEA Administrator. [Sec. 18, Omnibus Rules Implementing RA 10022]b)Criminal Complaints involving Migrant Workers ILLEGAL RECRUITMENT AS ECONOMIC SABOTAGECategories:1. Illegal recruitment in large scale ifcommitted againstthree or more persons individually or as a group.2. Illegal recruitment by a syndicate - if carried out by a group of three or more persons conspiring and/or confederating with one another. When only one complainant filed individual complaints, there is no illegal recruitment in large scale BUT the three conspiring recruiters can be held guilty of illegal recruitment by a syndicate. [Peoplevs. Hernandez, K. Reichl, andY.G. deReichl, G.R. Nos. 141221-36, March 7, 2002.] Where illegal recruitment is proved but the elements of large scale or syndicate are absent, the accused can be convicted only of simple illegal recruitment. VENUE: The RTC of the province or city where the offense was committed or where Syllabus for 2011 Bar Examinations in Labor Law 13the offended party actually resides at the time of the commission of the offense.C.LABOR_STANDARDS1.Hours of WorkLabor CodeArt. 84. Hours worked. Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.Rest periods of short duration during working hours shall be counted as hours worked.Omnibus RulesBook III, Rule 1Sec. 3. Hours worked.The following shall be considered as compensable hours worked:(a) All time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed workplace; and(b) All timeduringwhichanemployeeis sufferedor permittedto work.Sec. 4. PrinciplesinDeterminingHoursWorkedThefollowing general principlesshall governindeterminingwhether thetimespent byan employee is considered hours worked for purposes of this Rule:(a) All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion;(b) 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, mayrest completelyandmayleavehis workplace, togoelsewhere, whether within or outside the premises of his workplace;(c) 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 hoursbecausehehadnoreplacement, all timespent forsuchworkshall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor;(d) The time during whichan employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminenceoftheresumptionofworkrequirestheemployee'spresenceatthe place of work or if the interval is too brief to be utilized effectively and gainfully in the employee's own interest.Sec. 5. Waiting Time.(a)Waiting time spent by an employee shall be considered as working timeifwaitingisanintegral partofhisworkortheemployeeisrequiredor engaged by the employer to wait.(b) An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.Sec. 6. Lectures, Meetings, Training Programs.Attendance at lectures, meetings, trainingprograms, andothersimilaractivitiesshall notbe counted as working time if all of the following conditions are met:(a) attendance is outside of the employee's regular working hours;(b) attendance is in fact voluntary; andSyllabus for 2011 Bar Examinations in Labor Law 14(c) the employee does not perform any productive work during such attendance.1.1.Coverage/ExclusionsArt. 82.Coverage.The provisions of this title shall apply to employees inall establishments andundertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.Asusedherein, managerial employeesreferstothosewhoseprimary duty consists of the management of the establishment in which they are employedorof adepartment orsubdivisionthereof, andtootherofficersor members of the managerial staff.Field personnel shall refer to 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.Omnibus RulesBook III, Rule ISection 2. Exemption.The provisionofthisRule shallnotapplyto thefollowingpersonsiftheyapplytothefollowingpersonsiftheyqualifyfor exemption under the conditions set forth herein:xxx xxx xxx(b) Managerial employees, if they meet all of the following conditions, namely:(1) Their primary duty consists of the management of the establishment inwhichtheyareemployedorof adepartment orsub-division thereof;(2) Theycustomarilyandregularlydirect theworkof two or more employees therein;(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.(c) Officers or members of amanagerial staff if theyperformthe following duties and responsibilities:(1) Theprimarydutyconsists of theperformanceof work directly related to management policies of their employer;(2) Customarilyandregularlyexercisediscretionand independent judgment;(3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii)execute under general supervision work along specialized or technical linesrequiringspecial training, experience, orknowledge; or (iii) execute under general supervision special assignments and tasks; and(4) Whodonotdevotemorethan20percentoftheir hoursworkedinawork-weektoactivitieswhicharenot directlyand closelyrelatedtotheperformanceoftheworkdescribedinparagraphs (1), (2), and (3) above.Syllabus for 2011 Bar Examinations in Labor Law 15Who are coveredAll employees in all establishmentsWho are NOT covered(1) Government employeesSee: Civil Service LawMagna Carta of Public Health Workers (R.A. 7305)(2) Managerial employees(a) managerial employees(b) officers of the managerial staff(c) members of the managerial staffNOTES:For purposes of the exemption,managerialemployees are those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision. [Pearanda vs. Baganga Plywood Corp., G.R. No. 159577, May 3, 2006]A purported manager whose function is simply to carry out the companys orders, plans and policies is not a managerial employee.If their functions, duties and responsibilities do not bear relation with the management of the establishment, nor participate in the formulation of its policies, nor in the hiring and firing of its employees, then they are NOT managerial employees. [NAWASA vs. NWSA Consolidated Unions, 11 SCRA 766 (1964)]Managerial employee is not required to report at a fixed hour or to keep fixed hours of work. [International Pharmaceuticals, Inc. Vs. NLRC, 287 SCRA 213 (1998)]A Vice President/Plant Manager is a managerial employee, and therefore excluded from thecoverageof TitleI, BookIII, of theLabor Code. [JohnMcLeodvs. NLRC,G.R. No. 146667, January 23, 2007]Includes managerial staffWhile not considered as managerial employees, officers and members of the managerial staff are likewise exempted from the coverage of Article 82.Managerial staff are those with the following duties and responsibilities:(1) primary duty consists of the performance of work directly related to management policies of the employer;(2) customarily and regularly exercise discretion and independent judgment;(3) (a) regularly and directly assist a proprietor/managerial employee, whose primary duty consists of the management of the establishment; OR(b) execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge; OR(c) execute under general supervision special assignments and tasks;(4) whodoNOTdevotemorethan20%of their hoursof workinaweekto activitieswhicharenot directlyandcloselyrelatedtomanagement of the establishment. [Pearanda vs. Baganga Plywood Corp.,supra,citing Section 2(c), Rule I, Book III of the Omnibus Rules and Regulations]An employee tasked to supervise the engineering section of the plant, and whose work involved overseeing the operation of the machines and the performance of the workers in said section, is considered part of the managerial staff. His functions require the use of discretion and independent judgment to ensure the proper functioning of the plant.The term FOREMAN implies that he was the representative of management over the workers, and the operation of the department. [Pearanda vs. Baganga Plywood Corp.,supra] Likewise, an employee with powers ofsupervisor/manager is part of the managerial staff.[Quebec vs.NLRC,301 SCRA 627 (1999)]Syllabus for 2011 Bar Examinations in Labor Law 16N.B.:Managers and members of managerial staff are NOT entitled to:a. Overtime pay [Art. 87; Salazar vs. NLRC, supra]b. Service incentive leave pay [Art. 95(b]; Quebec vs. NLRC, supra]c. Holiday pay (Art. 94)(3) Field PersonnelInUnionofFiliproEmployeesvs. Vivar, Jr.,[(205SCRA200(1992)], it washeldthat the phrase whose actual hours of work in the field cannot be determined with reasonable certainty must be read in conjunction with the meaning of field personnelin Rule IV, Book III of the Implementing Rules, wherebyfieldpersonnel andother employeeswhosetimeandperformanceisunsupervisedbythe employer. [Mercidar Fishing Corp. vs. NLRC,297 SCRA 440 (1998)] The term other employees should NOT be understood as a separate classification of employees who are not covered under Article 82 of the Labor Code, rather should be regarded as an amplification of the interpretation of the definition of field personnel as those whose actual hours of work in the field cannot be determined with reasonable certainty. [Auto Bus Transport vs. Bautista, 458 SCRA 578 (2005)]N.B.:Field Personnel are NOT entitled to the following benefits:a. Overtime pay; [UnionFiliproEmployees vs. Vivar, Jr.,supra, citingSan MiguelBrewery vs. Democratic Labor Organization, 8 SCRA 613 (1963)]b. Service incentive leave pay [Sec. 1, Rule V, Implementing Rules; Auto Bus Transport vs. Bautista, 458 SCRA 578 (2005)]c. 13th month pay [PD 851](4) Dependent Family Members(5) Domestic Workers and Persons in the Personal Service of AnotherThe definition of domestic servant or househelper contemplates one who is employed in the employer's home to minister exclusively to the personal comfort and enjoyment of the employer's family.[Apex Mining Company vs. NLRC, 196 SCRA 251 (1991)]Workers covered in this definition include:(1) family drivers(2) domestic servants(3) laundrywomen(4) yayas(5) gardeners(6) houseboys(7) other similar househelps [Apex Mining Company vs. NLRC, supra at 254]Househelp or laundrywomen working in staffhouses or a company, who attends to the needs of company guests and other persons availing of said facilities should not be included in this definition. The mere fact that the househelper or domestic servant is working within the premisesof theemployer andinrelationtoor inconnectionwithitsbusiness, asinits staffhouses, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee. [Apex Mining Company vs. NLRC, supra at 254-255]On the other hand, a personal driver of the owner of the company cannot claim regular employment with the company itself absent proof of his employment relations therewith. [Ultra Villa Food Haus vs. Geniston, 309 SCRA 17 (1999) at 23]Syllabus for 2011 Bar Examinations in Labor Law 17VSEV: HOWEVER, a better reading of the foregoing should be services rendered in the employer's HOME for the personal comfortof the members of the household, not necessarily of the family. N.B.:Domestic servants are NOT entitled to the following benefits:a. Overtime pay;b. Holiday pay;c. Premium pay for holiday and rest daysd. Service Incentive Leave pay. [Ultra Villa Food Haus vs. Geniston, supra at 24](6) Piece WorkersPiece workers are those workers paid by results.[Art. 82]Andwhilethemodeof compensationisonpiece-ratebasis, theyareconsideredas regular employeesfor aslongasthenatureof thetaskstheyperformarenecessaryand desirable in the usualbusiness ofthe employer, and their employmentis not dependent on specific projects or season. [Labor Congress vs. NLRC,290 SCRA 509 (1998);in rel.Art. 280, LC; see also: Villuga vs. NLRC, 225 SCRA 537 (1993)]As such, they are entitled to:a. minimum wageb. ECOLAc. 13th month pay [Makati Haberdashery, Inc. vs. NLRC, 179 SCRA 448 (1989)]They are NOT entitled to:a. Overtime pay, if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book III; [Labor Congress vs. NLRC, supra]b. Service Incentive Leave pay; [Makati Haberdashery, supra]1.2.Normal Hours of WorkArt. 83.Normalhoursofwork.Thenormal hoursof workof any employee shall not exceed eight (8) hours a day.Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) oftheirregularwageforwork on thesixthday.For purposesof thisArticle, "healthpersonnel" shall includeresident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.NOTES:* Article83of theLabor Codeprovidesthat thenormal hoursof workshallNOT exceed8 hoursa day,whichperiod doesnotinclude mealbreak.[PALvs. NLRC,302 SCRA 582 (1999)]What constitutes Hours Worked?(Mnemonic) DWSP- when on DUTY- when at the WORKPLACE- when SUFFERED to work- when PERMITTED to work[PAL vs. NLRC, 302 SCRA 582 (1999)]Syllabus for 2011 Bar Examinations in Labor Law 18Purpose of the 8-Hour Labor Law: to safeguard health minimizeunemployment asemployer isforcedtoresort tomoreshiftings. [NAWASAvs. NWSA Consolidated Unions, 11 SCRA 766 (1964)]* Services performed by an employee exceeding the normal 8-hour work period entitles him to extra compensation.This extra compensation is not subject to estoppel or laches, and allows the employee to claim such extra compensation for past overtime work so rendered. [Manila Terminal Co. vs. CIR, G.R. No. L-4148, July 16, 1952]BUT, shall onlybeapplicableinindustriesnot exemptedbylawtopaysaidadditional compensation, such as public utilities and government agencies and instrumentalities, performing governmental functions. [NAWASA vs. NWSA Consolidated Unions, supra]EXCEPT, when the company voluntarily agrees to pay its employees additional compensation for work performed in excess of 8 hours.The obligation of the company is no longer by compulsion of law, but is based on contracts. [NAWASA vs. NWSA, supra]A provision for a 6-day work week or 48 hours/week entitles an employee working on the 6th day additional compensation of at least 30% of his regular wage, [Art. 83, 2nd par., LC] BUTdoes not entailpayment to health personnelfullweekly salary (7 days),with 2 days work-off considered as paid. A Department Order to this effect is considered void for want of authority. [San Juan de Dios Hospital Employees Association-AFW/MA vs. NLRC,282 SCRA 316 (1997)]1.2.1.Exceptions(a)Health PersonnelLabor CodeART. 83. Normal hours of work.xxxHealth personnel in cities and municipalities with a population of at least one million (1,000,000) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies oftheservicerequiresuchpersonnel workforsix(6)daysorforty-eight(48) hours, in which case they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of Article, health personnel shall include: resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologist, midwives, attendants and all other hospital or clinic personnel.Omnibus RulesRule I-ASEC. 1. General statement on coverage.This Rule shall apply to:(a) all hospitals and clinics, including those with a bed capacity of less thanonehundred(100)whicharesituatedincitiesormunicipalitieswitha population of 1 million ormore; and(b) all hospitals and clinics with a bed capacity of at least one hundred (100), irrespective of the size of the population of the city or municipality where they may be situated.SEC. 4. Personnel covered by this Rule.This Rule applies to all personsemployedbyanyprivateorpublichospital orclinicmentionedin Section 1 hereof, and shall include, but not limited to, resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, and attendants.Syllabus for 2011 Bar Examinations in Labor Law 19SEC. 5. Regular Working Hours.The regularworking hours of any person covered by this Rule shall not be more than eight (8) hours in any one day nor more than forty hours in any one week.xxx xxx xxxSEC. 6. Regular Working Days.The regular working days of coveredemployees shall not be more thanfive days ina workweek. The workweek may begin at any hour and on any day, including Saturday or Sunday, designated by the employer.Employers are not precluded fromchanging the time at which the workday or workweek begins, provided that the change is not intended to evade the requirements of this Rule.While medical/health personnel are only required to perform work for five (5) days, this does not mean that work performed for the week entitles them to a full weekly wage for 7 days.Full weekly wage only arises if work performed for five (5) days amounted to 40 hours of work, consistent with the 8-hour workday. [San Juan de Dios Hospital Employees Association-AFW/MA vs. NLRC, 282 SCRA 316 (1997)](b)Compressed Work WeekNOTES:Partiesarenot prohibitedfromagreeinginacompressedworkweekscheme, wherebyregular workweek is shortened but with longer work periods.For as long as employees voluntarily agree to work for more than 8 hours a day in total in a week of which shall not exceed normal weekly hours of work.In fact, Department Order No. 21sanctionsthiskindof scheme, inconsiderationof thebenefitsthat employees may derive therefrom, i.e.,:(1) savings on costs of transportation, meals, and energy(2) greater efficiency of employees(3) lower rate of employee absenteeism(4) longer weekends is beneficial for rest, leisure, and time for the family. [BisigManggagawasa Tryco, et al. vs. NLRC, G.R. No. 151309, October 15, 2008]Conditions for Implementation (DO 21-90) The ff. concurring conditions should be met:(1) The employees voluntarily agree to work for more than 8 hours/day, the total in a week should not exceed their normal weekly hours prior to adoption of compressed workweek (CWW) scheme.(2) There willNOTbe any diminution in the weekly/monthly take-home pay and fringe benefits of the employees.(3) If an employee is permitted or required to work in excess of his normal weeklyhoursof workprior totheadoptionof theCWWscheme, all such excess hours shall be considered overtime work, and compensated accordingly.(4) Appropriate waivers with respect to overtime premium payfor work performedinexcess of 8hours/day may bedevisedby theparties tothe agreement.(5) Effectivity and implementationof the new working time arrangement shall be by agreement of the parties.See:DOLE Advisory No. 02-04DOLE Advisory No. 2, s.20091.3.Work interruption due to brownouts Brownouts is not included in Hours worked1.4.Meal BreakSyllabus for 2011 Bar Examinations in Labor Law 20Art. 85. Meal Periods.Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.Omnibus RulesBook III, Rule 1Sec. 7. Meal and Rest Periods.Every employer shall give his employees, regardless of sex, not less thanone(1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20)minutesmaybegivenbytheemployerprovidedthat suchshortermeal period is credited as compensable hours worked of the employee:(a) Where the work is non-manual work in nature or does not involve strenuous physical exertion;(b) Wheretheestablishmentregularlyoperates notless thansixteen (16) hours a day;(c) Incasesof actual orimpendingemergenciesorthereisurgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer;and(d) Where the work is necessary to prevent serious loss of perishable goods.xxx xxx xxxAs a General Rule:The 8-hour work period does not include the meal break. Nowhere in the law may it be inferred that employees must take their meals within company premises.Employees are not prohibited from going out of the premises as long as they return to their posts on time. [PAL v. NLRC, 302 SCRA 582 (1999)]EXCEPT,When employees are required to standby for emergency work during their 1-hour meal period and their unavailability results in disciplinary action, their mealbreak should be considered as part of hours worked. [Pan-American Airways, 1 SCRA 527 (1961)]1.5.Idle time, waiting time, commuting time, travel time, whether part of hours of work or notTherearespecial circumstanceswhereemployees, whoalthoughconsideredtobeonforced leave during thesemestral break, suchas full-timeprofessors inauniversity, are still entitledto compensation. Professorsandteachers, duringthisperiodof time, areneverthelessburdenedwith correcting papers, evaluating students, meeting deadlines, and submitting grading reports within a given period, such that the semestral break could not be used effectively for the teacher's own purposes, and thus, should be considered as compensable hours worked.[University of Pangasinan Faculty Union vs. University of Pangasinan, 127 SCRA 691, 699 (1984)]On another note, the meaning and scope of the term workplace determine whether the time spent within work premises is considered hours worked.(a) A worker confined within the premises of a boat or a factory shop need not leave said premises in order to enjoy his rest period, it being enough that he (1) cease to work, (2) may rest completely, and (3) leave or may leave, at his will, the spot where he actually stays whileworking, ortogosomewhereelse. Insuchcases, theperiodof rest shallnotbe counted as hours worked. [Luzon Stevedoring vs. Luzon Marine Department Union, G.R. No. L-9265, April 29, 1957](b) A workerwho continues to report for workat the employer'sprevious workplace may not be compensated, if he is aware that the employer's workplace has been transferred to another area.[Aklan Electric Cooperative vs. NLRC, 323 SCRA 258 (2000)](c) A worker who is required to assemble at a designated area at least 30 minutes prior to the start of their scheduled working hours is not compensated when he is not subject to the Syllabus for 2011 Bar Examinations in Labor Law 21absolute control of the employer during this 30-minute assembly time. [Arica vs. NLRC, 170 SCRA 776 (1989)]BUT,A driver who is also required to pick up other employees at certain specified points on his way to the workplace, and likewise drops them off on his way home is entitled to overtime compensation, since the assigned task of fetching and delivering employees to the worksite is primarily for the benefit of the employer. [Rada vs. NLRC, 205 SCRA 69 (1992)]See:RA 10028, (approved on March 16, 2010) 1.6.Overtime workArt. 87. OvertimeWork.Workmaybeperformedbeyondeight (8) hours a day providedthat the employee is paidfor the overtime work an additional compensation equivalent to his regular wage plus at least twenty-five (25%) percent thereof.Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate for the first eight hours on a holiday or rest day plus at least thirty (30%) percent thereof.Overtime WorkOvertime work is actually the lengthening of hours developed to the interests of the employer and the requirements of his enterprise. Itfollows thatthe wage or salary to be received must likewise be increased, and a special additional amount must be added to serve either as encouragement or inducement.Wage, on the other hand, is the remuneration or earnings, however designated, capable of being expressed in terms of money, which is payable by an employer to an employee for work done.Thus, for purposesof computingovertimecompensation, regular wageincludesall payments which the parties have agreed shall be received during the work week.Extra, temporary and contingent compensation unrelated to work done or service rendered should not be part of the computation. [PNB vs.PEMA, G.R. No. L-30279, July 30, 1982]1.6.1Undertime not offset by overtimeArt.88. UndertimenotOffsetbyOvertime.Undertimeworkonany particular day shall not be offset by overtime work on any other day.Permission giventotheemployeetogoonleaveonsomeotherdayoftheweekshallnot exempt the employer from paying the additional compensation required in this Chapter.NOTE:* If a worker should incur in undertime during his regular daily work, it should not be set off by his overtime, for that would place the schedule of working hours dependent on the employee. [NAWASA vs. NWSA Consolidated Unions, supra]1.6.2Waiver of overtime pay* For instance, the generally observed workweek of 6 days is shortened to 5 days, but prolonging the working hours from Monday-Friday without the employer being obliged topayovertimepremiumcompensationfor workperformedinexcessof 8hourson weekdays, in exchange for the benefits that will accrue to employees. [Bisig Syllabus for 2011 Bar Examinations in Labor Law 22VSEV: Just as undertime work cannot be offset by overtime work, such undertime cannot be charged against the accrued leave of the employee.Manggagawa, supra]1.7.Night WorkArt. 86. Night Shift Differential.Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten oclock in the evening and six oclock in the morning.* Night-shift work is more onerous and burdensome, and thus deserves more remunerationthantheir daytimecounterparts. Thereisnodisputethat ordinaryand regular normal work is performed in the daytime, and that night work is exceptional and is onlyjustifiedinunavoidablecircumstancesnecessaryforthebusinessof theemployer. [Shell Company vs. NLU, 81 Phil. 315 (1948)]1.8.CBA provision vis--vis overtime workRule on Computation of Overtime Pay1. Basis for computationLaw Based on regular wage [Bisig ng Manggagawa sa PRC, supra]CBA As provided therein [PNB vs. PEMA, supra]If CBA is silent,Apply the law again [PNB vs. PEMA, supra]2. Work Hour is 8:00 A.M. To 4:00 P.M.OT has to be computed on a 24-hour work day schedule3. The basis of OT claim is permitted to work, otherwise not demandable. [Manila Jockey, supra]2.WagesWage- remuneration, regardless of how designated- capable of being expressed in terms of money - regardless of how fixed or ascertained- payable for services rendered/to be rendered- inclusive of facilities [fair and reasonable] exclusive of profit to Employer Syllabus for 2011 Bar Examinations in Labor Law 23CashWageistheregularwageusedincomputingnight shiftand overtime work [the only premium standards in Chapter I, Title I, Book III of the Labor Code][limited only to night shift and OT (Arts. 86 & 90)By cash wage, facilities provided by the employer shall not be included, meaning only cash wage shallbe used in computing OT and NSDP [unlike Art. 97 (f) where wage includes fair and reasonable value xxxof board andlodging, or other facilitiescustomarilyfurnishedbytheemployer tothe employee.Longevity pay is not included in the computation of overtime pay [PNB vs. PEMA, supra].It is not part of regular wages, but a form of gratuity.2.1.No work no pay principle* The general no work, no pay rule should prevail with respect to employees wages duringthesuspensionperiod, subject toexistingCBAtermsonleavecreditsandsimilar benefits of employees. The suspension was due to environmental causes that can affect the health and safety of those within the vicinity of Marcopper, particularly its employees.[NationalMines and Allied Workers Union (NAMAWU) vs. Marcopper Mining Corporation, G.R. No. 174641, November 11, 2008]2.2.Coverage/ExclusionsThe rule on wages applies to all workersEXCEPT:a) farm tenancy/leasehold; b) domestic servants; c) homeworkers engaged in needle work / cottage industry* Employees are entitled to be paid the minimum wage regardless whether they are regular or non-regular employees, except for those employees enumerated in Section 3, Rule VII of theOmnibus Rules implementingthe Labor Code. [SLLInternational Cables Specialist, et al. vs. NLRC, et al., G.R. No. 172161, March 2, 2011, Mendoza, J.]Cooperatives Still Exempted from Minimum Wage Law* In view of the foregoing, we hold that cooperatives may stillbe exempted from the statutory minimum wage. [Benguet Electric Cooperative v. Ferrer-Calleja, G.R. No. 79025, December 29, 1989]2.3.Facilities vs supplementsThetermfacilities, saystheImplementingRule, shall includearticlesorservicesfor the benefit of the employee or his family but shall not include:* tools of the trade or articles or service primarily for the benefit of the employer; or* necessary to the conduct of the employers business.(Book III, Rule VII, Sec. 5)The benefit or privilege given to the employee which constitutes an extra remuneration above andover hisbasicor ordinaryearningor wageissupplement; [StateMarineCorp. vs. Cebu Seamen's Association, Inc., 7 SCRA 294 (1963); (1988 Bar, XIIb)]and when said benefit or privilege is part of the laborers' basic wages, it is a facility. The distinction lies not so much in the kind of benefit or item given, but in the purpose for which it is given. [SLL International Cables Specialist, et al. vs.NLRC, et al., G.R. No. 172161, March 2, 2011, Mendoza, J.]So, if they are not so furnished, the laborer would spend and pay for them just the same.[Atok-Big Wedge Assn. vs. Atok-Big Wedge Co., (97 Phil. 294)] An employer cannot simply deduct from the employee's wages the value of the board and lodging without satisfying the ff. requisites: (1) proof that such facilities are customarily furnished by the trade/business of the employer; (2) voluntary acceptance in writing by the employees of the deductible facilities; and (3) proof of the fair and reasonable value of the facilities charged. [S.I.P.Food House, supra; SLL International, supra]CASE: Although it is quite easy to comprehend board and lodging, it is not so with facilities. Thus, Sec. 5, RuleVII, BookIII, of theRulesImplementingtheLabor Codegivesmeaningtothetermas including articles or services for the benefit of the employee or his family but excluding tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer's business. TheStaff/Manager'sallowancemayfall under lodging but thetransportationandBislig allowances are not embraced in facilities on the main consideration that they are granted as well as the Staff/Manager's allowance for respondent PICOP'sbenefit and convenience,i.e., to insure that Syllabus for 2011 Bar Examinations in Labor Law 24petitioners render quality performance.In determining whether a privilege is a facility, the criterion is not so much its kind but its purpose.[States Marine Corporation vs. Cebu Seamen's Association, Inc.,No. L-12444, 28 February 1963, 7 SCRA 294] That the assailed allowances were for the benefit and convenience of respondent company was supported by the circumstance that they were not subjected to withholding tax. [Liduvino M. Millares, et al. vs. NLRC, et al.,G.R. No. 122827, March 29, 1999, 2nd Division, Bellosillo, J.]2.4.Wages vs. salariesArt. 97.Definitions.(f) Wage paidtoanyemployee shall meantheremunerationor earnings, howeverdesignated, capableof beingexpressedintermsof money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee underawrittenorunwrittencontractofemploymentforworkdoneortobe done, or for services renderedor toberenderedandincludes thefair and reasonable value, as determined by the Secretary of Labor, of the board, lodging, or other facilities customarily furnished by the employer to the employee. Fair andreasonablevalueshall not includeanyprofit totheemployerortoany person affiliated with the employer.NOTES :* Wages are defined as remuneration or earnings, however, designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for service rendered or to be rendered.[Chavez v. NLRC, G.R. No. 146530, January 17, 2005]* The distinction between salary and wage in Gaa was for the purpose of Article 1708 of the Civil Code which mandates that, [t]he laborers wage shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medicalattendance. In labor law, however, the distinction appears to be merely semantics.Paramountand Evangelistamayhaveinvolvedwageearners, but thepetitioner inEspejowasaGeneral Manager withamonthlysalaryof P9,000.00plusprivileges. Thatwageandsalaryare synonymoushasbeensettledinSongcov. NLRC. [EquitableBankingCorpv. Ricardo Sapac, 490 SCRA 381 (2006)]2.5.Wage distortion* Theconcept of wagedistortionassumesanexistinggroupingor classificationof employees which establishes distinctions among such employees on some relevant or legitimate basis.This classification is reflected in a differing wage rate for each of the existing classes of employees. While Art. 124 provides for Grievance Machinery which ends up in VoluntaryArbitration, (organizedestablishments)andNCMBconciliationswhicheventually maybe referred to Compulsory Arbitration by Labor Arbiter, such are not the only valid ways with which awage distortion may be corrected. A CBA increase which re-establishes the wage gap, or a unilateral grant by the employer which also restores said gap are valid wage distortion correction schemes.[National Federation of Labor vs. NLRC, 234 SCRA 311, 322-323]Four elements of wage distortion :1)an existing hierarchy of positions with corresponding salary rates.2) a significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one;3)The elimination of the distinction between the two levels; and4)The existence of the distortion in the same region of the country [Bankard Employees Union-Workers Alliance Trade Unions vs. NLRC, and Bankard, Inc., G.R. No. 140689, February 17,Syllabus for 2011 Bar Examinations in Labor Law 252004, Third Division, Carpio, Morales, J.]2.6.CBA vis--vis Wage Orders CBA creditabilityCASE:P.I. Manufacturing, Incorporated vs. P.I. Manufacturing Supervisors and Foreman Association and the National Labor Union, G.R. No. 167217, February 4, 2008.There is wage distortion based on the prevailing rates of the supervisors and foremen (before the increase in wages based on the CBA).If RA 6640 would be implemented, the gaps existing between and amongthewageratesof all theemployeesof petitioner wouldhavebeensubstantiallyalteredand reduced.In the present case, only three (3) of the union members are receiving wages below P100.00, thus entitled to the increase.To direct petitioner to grant an across-the-board increase to all of them would be harsh and unfair to the employer.However, due to the CBA provision, providing for increased monthly salaries of supervisors and foremen, such has re-established and broadened the gap, and significantly doubled the P100.00 increase under RA 6640, which in effect substantially complied with the wage increase under RA 6640.The union is estopped from claiming wage increase under RA 6640 when it forged the CBA with petitioner after the law took effect.xxx xxx xxxxxx[W]agedistortionmeansthedisappearanceor virtual disappearanceof paydifferentials between lower and higher positions in an enterprise because of compliance with a wage order.Theapparent intentionof thelawisonlytoupgradethesalariesor wagesof theemployees specified therein.(Manila Mandarin Employees Union v. NLRC, G.R. No. 108556, November 19, 1996, 264 SCRA 320)2.7.Non-diminution of benefitsArt. 100. Prohibition against elimination or diminution of benefits.NothinginthisBookshall beconstruedtoeliminateorinanyway diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.NOTES:* Diminution of Benefits, defined.Diminution of benefits is the unilateral withdrawal bytheemployer of benefitsalreadyenjoyedbytheemployees. [TSPIC Corporation vs. TSPIC Employees Union (FFW), G.R. 163419, Feb. 13, 2008]Diminution of Benefits; Negative DefinitionSince under the CBA, overtime pay was notgiven to each employee consistently, deliberately and unconditionally, but as compensation for additional services rendered, the employer's change of schedulewhichisnot prohibitedbytheCBA, resultinginlesser overtimework, doesnot constituteadiminutionof benefitsunder Art. 100of theLabor Code[ManilaJockeyClub EmployeesLabor Union-PTGWOvs. ManilaJockeyClub, Inc., 517SCRA707, 712-713, March 7, 2007]There is diminution of benefits when it is shown that:(a)The grant or benefits is founded on a policy or has ripened into a practice over a long period; (b)The practice is consistent and deliberate;(c)The practice is not due to error in the construction or application of a doubtful or difficult Syllabus for 2011 Bar Examinations in Labor Law 26question of law; and(d)The discontinuance is done unilaterally by the employer.Rationale for Art. 100 Employees are protected by law from unwarranted practices that diminish an employee's compensation without his knowledge and consent [Pacific Banking Corporation vs. Clave, 128 SCRA 112]2.8.Workers preference in case of bankruptcyArt. 110.Worker preference in case of bankruptcy.In the event of bankruptcy or liquidation of an employers business, his workers shall enjoyfirst preferenceasregardstheirwagesandothermonetaryclaims, any provisions of lawto the contrary notwithstanding. Suchunpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid.(As amended by Section 1, Republic Act No. 6715, March 21, 1989)NOTES:Worker Preference (in case of Bankruptcy) * For unpaid wages and other monetary claims, even against gov't. claims.(See Folder of Jurisprudence)* Cf. with PD 902-A, Secs. 5 & 6 on Rehabilitation. [Rubberworld Phils. vs. NLRC, April 14, 1999]* Rehabilitation suspends automatically proceedings at NLRC.* Receiver takesholdof assetsfor thebenefit of creditorswithpossibilityof continued operation.* Liquidator takes hold of assets to dispose according to priorities. Operations stop.Both receivership/liquidation personality of corp. continues [PVB v. NLRC, Oct. 26, 1999]- Workers claims for unpaid wages and monetary benefits cannot be paid outside of a bankruptcyorjudicial liquidationproceedingsagainst theemployer.[Barayogavs. Asset Privatization Trust, 473 SCRA 690]2.9.Labor Code provisions for wage protectionArt. 112.Non-interference in disposal of wages.No employer shall limit or otherwise interfere with the freedom of any employee to disposeofhiswages. Heshall notinanymannerforce, compel, orobligehis employeestopurchasemerchandise, commoditiesorotherpropertyfromany other person, or otherwise make use of any store or services of such employer or any other person.Art. 114.Deposits for loss or damage.No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations orbusiness wherethe practiceofmaking deductions or requiring depositsisa recognizedone, orisnecessaryordesirableasdeterminedbytheSecretaryof Labor and Employment in appropriate rules and regulations.Art. 115.Limitations.No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibility has been clearly shown.Syllabus for 2011 Bar Examinations in Labor Law 27Art. 116.Withholdingofwagesandkickbacksprohibited. It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent.Art. 117.Deduction to ensure employment.It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representativeor intermediary as considerationof a promise of employment or retention in employment.Art. 118. Retaliatory measures.It shall be unlawful for an employer torefusetopay orreduce thewagesand benefits, dischargeor inany manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings.Art. 119. False reporting.It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respectCASE:Special Steel Products, Inc. vs. Lutgardo Villareal, et al., G.R. No. 143304, July 8, 2004Petitioner contends that as a guarantor, it could legally withhold respondent Villareals monetary benefitsasapreliminaryremedypursuant toArticle2071of theCivil Code, asamended. Asto respondent So, petitioner, citing Article 113 of the Labor Code, as amended, in relation to Article 1706 of the Civil Code, as amended, maintains that it could withhold his monetary benefits being authorized by the memorandum he signed.Article 116 of the Labor Code, as amended, provides:ART. 116.Withholdingof wagesandkickbacksprohibited.It shall beunlawful for any person, directly or indirectly, to withhold any amount from the wages (and benefits) of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent.The above provision is clear and needs no further elucidation. Indeed, petitioner has no legal authority to withhold respondents 13th month pay and other benefits.What an employee has worked for, hisemployermust pay. Thus, anemployercannot simplyrefusetopaythewagesorbenefitsof its employee because he has either defaulted in paying a loan guaranteed by his employer; or violated their memorandum of agreement; or failed to render an accounting of his employers property.2.10.Allowable deductions without employees consentArt. 113.Wage deduction.No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:a. Incases where theworker is insuredwithhis consent bythe employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;b. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; andc. Incaseswheretheemployerisauthorizedbylaworregulations issued by the Secretary of Labor and Employment.NOTES:Wage Deduction Syllabus for 2011 Bar Examinations in Labor Law 28 Employer cannot deduct from wages Except: a) InsurancePremiumb) Union dues 241 [o]; 248 [e]c) Authorized by law. -Check-off authorized by Employer requires written authorization from employee.2.11.Attorneys fees and union service fee in labor casesArt. 111.Attorneys fees.(a) In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent 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 wages, attorneys fees which exceed ten percent of the amount of wages recovered. NOTES:Attorney's Feesa) Extraordinary concept awarded by court; - 10% against culpable party for unlawful w/holding of wages;* Art. 111(a) is extraordinary attorney's fees.It does not require proof that the employer acted with malice or bad faith in withholding the wage.Proof that lawful wages were not paid is enough [PAL Shipping Phils., Inc., et al. vs. NLRC, et al. [G.R. 153031, Dec. 14, 2006] b)Ordinary concept paid by client to a lawyer as reasonable compensation;- 10% for lawyer in recovery of wages cases.* The award of attorney's fees, though not prayed for, is sanctioned by law and must be upheld [Marivel Trading, Inc. vs. NLRC, 525 SCRA 708, 733 (2007).Rules:(1) In actions for (1) recovery of wages or (2)where an employee was forced to litigate and thus incurred expenses to protect his rights and interests, a maximum award of ten percent (10%) of the monetary award by way of attorney's fees is legally and morally justifiable under Art. 111 of the Labor Code.XxxForced to litigate recovery of wages basics of attorneys fees [Rutaquio vs. NLRC, (Oct. 19, 1999); Marsaman Manning Agency vs. NRLC, (Aug. 25, 1999)(2) No attorneys fees when complaint is represented by PAO Lambo vs. NLRC, G.R. No. 111042, Oct. 26, 1999, 317 SCRA 420.(3) Non-Lawyers Not Entitled to Attorney's Fees2.12.Criteria/Factors for Wage SettingArt. 124. Standards/Criteriaforminimumwagefixing.Theregional minimumwages tobeestablishedbytheRegional Boardshall beas nearly adequate as is economically feasible to maintain the minimum standards of living necessaryfor the health, efficiency andgeneral well-beingof theemployees within the framework of the national economic and social development program. Syllabus for 2011 Bar Examinations in Labor Law 29In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following:(a) The demand for living wages;(b) Wage adjustment vis--vis the consumer price index;(c) The cost of living and changes or increases therein;(d) The needs of workers and their families;(e) The need to induce industries to invest in the countryside; (f) Improvements in standards of living;(g) The prevailing wage levels;(h) Fair return of the capital invested and capacity to pay of employers(i) Effects on employment generation and family income; and(j) The equitable distribution of income and wealth along the imperatives of economic and social development. * Pendency of disputes shall not delay applicability of wage order. Those paid by Result Distortion elimination or severe contraction ofintentional wagequantitativedifferencesresultingineffectivelyobliterationof distinctions in wagestructurebased onskills, length of service, other logical bases of differentiation.- guaranteed wages- standard for 8 hours work recognized learnership (Apprenticeship adjusted)3.Rest DayArt. 91. Right to weekly rest day.(a) 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 (24) consecutive hours after every six (6) consecutive normal work days.(b) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulationsastheSecretaryofLaborandEmploymentmayprovide.However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. 3.1.Right to weekly rest dayNOTES:Weekly Rest Periods It shall be the employer's duty to give an employee rest period:(a) Weekly rest period of not less than 24 hours after every 6 consecutive normal work days.(b) Employer to fix schedule of rest day subject to:1) CBA2) Workers preference based on religious grounds, respected(c) Worked:Regular Holiday + Rest day=230% [Arts. 93(a) & 94(b)]Special day =130% [Art. 94(c)]Special day + Rest day=150%Syllabus for 2011 Bar Examinations in Labor Law 30[Art. 93(c), where such refers tospecial day]For work on Sundays and legal holidays, the employer must pay:1. a Daily-Rate Employee (125% of daily wage):a) regular remuneration, or 100% of his daily wage; andb) an additional sum of at least 25% of the regular remuneration, which shall be regarded as the premium pay2. a Monthly-Paid Employee:a) IF the remuneration is included in his salary, only the 25% premium pay can be claimed; andb) IF not so included in the monthly salary, (1) the first 100% of the 125%, which stands as the regular remuneration; and(2) the25%premiumpay[DeLeonvs. PampangaSugarDevelopment Co., Inc., G.R. No. L-26844, September 30, 1969, 29 SCRA 628]N.B.: The premiumpayments for Sundays, legal holidays, and rest days are basedontherule enunciated in De Leon.3.2.Preference of the employee Workers preference based on religious grounds, respected3.3.When work on rest day authorizedArt. 92.Whenemployermayrequireworkonarestday.The employer may require his employees to work on any day:(a) Incaseof actual or impendingemergencies causedbyserious accident, fire, flood, typhoon, earthquake, epidemic or otherdisaster or calamity to prevent loss of life and property, or imminent danger to public safety;(b) In cases of urgent work to be performed on the machinery, equipment, or installation, toavoidserious loss whichthe employer would otherwise suffer;(c) In the event of abnormal pressure of work due to special circumstances, wheretheemployercannotordinarilybeexpectedtoresortto other measures;(d) To prevent loss or damage to perishable goods;(e) 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(f) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment. NOTES:Grounds for compulsory rest day work(6 grounds) (a) impending emergency (fortuitous event)(b) urgent work on machinery, etc.(c) abnormal pressure of work due to special circumstances the employer cannot resort to other incomes(d) prevent loss or damage to perishable goods(e) nature of work requires continuous operations (irreparable loss)(f) analogous circumstances as determined by SOLESyllabus for 2011 Bar Examinations in Labor Law 31*[OT may be required when the country is at war/local or national emergency declared by Congress/President (difference between rest day and OT)]4.HolidaysNOTE:Regular Holiday PayHoliday paya) regular daily wageb) 200% if worker is required to work during holidaysException:In retail/service establishments regularly employing less than ten (10) employeesIMPORTANT:Legal holiday falling on a Sunday creates no legal obligation on the part of the employer to pay extra pay.Wellington Investment and Manufacturing Corporation vs. Trajano,G.R. No. 114698, July 3, 1995.Note: This ruling is no longer applicable in light of RA 9492, which moved holidays falling on a Sunday to the next Monday.Note also the ruling in Producers Bank vs. NLRC:Apparently, the divisor of 314 is arrived at by subtracting all Sundays from the total number of calendar days in a year, since Saturdays are considered paid rest days, as stated in the inter-office memorandum.Thus, the use of 314 as a divisor leads to the inevitable conclusion that the ten legal holidays are already included therein. [ProducersBankof thePhilippinesvs. NLRC, et al.,G.R. No. 100701, March 28, 2001, Third Division, Gonzaga-Reyes, J.]The foregoing seems to follow Sec. 2, Rule IV, B