Finals Pointers

8/2/2019 Finals Pointers

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FINALS POINTERS:

- Coverage: SSS & GSIS

- 60% MCQ, 30% ESSAY, 10% BONUS(automatic +10)

Period of appeal from decision of SSC

o Court Review. The decision of the Commission upon any disputed matter may be reviewed

both upon the law and the facts by the Court of Appeals. For the purpose of such review, the

procedure concerning appeals from the Regional Trial Court shall be followed as far as

practicable and consistent with the purposes of this Act. Appeal from a decision of the

Commission must be taken within fifteen (15) days from notification of such decision. If the

decision of the Commission involves only questions of law, the same shall be reviewed by the

Supreme Court. No appeal bond shall be required. The case shall be heard in a summary

manner, and shall take precedence over all cases, except that in the Supreme Court, criminal

cases wherein life imprisonment or death has been imposed by the trial court shall take

precedence. No appeal shall act as a supersedeas or a stay of the order of the Commission

unless the Commission itself, or the Court of Appeals or the Supreme Court, shall so order.

How appeal is taken?

- By verified petition for review (The Revised Rules of SSC [1997]).- Note: 1990 Rules of SCC state that it is by notice of appeal.

Effectivity of the compulsory coverage of SSS employees:

o Compulsory coverage

For an employee on the first day of employment

For an employer on the first day the employer hires employee/s.

Employer is given 30 days from date of employment to report the employee for

coverage to SSS.

For self-employed upon payment of first valid contribution, in case of initial

coverage.

o Voluntary coverage

For OFW upon first payment of contribution, in case of initial coverage.

For non-working spouse upon first payment of contribution.

For separated member on the month the person resumed payment of contribution.

Prescriptive periods: SSS & GSIS

o SSS

Sickness Benefit

Prescribed period in filing a claim of a member confined in

hospital/home:

o For hospital, claim for benefit must be filed within 1 year from lastday of confinement;

o For home, 1 year from start of illness.

Failure to file the claim within the prescribed period will result to denial of

claim.

Disability Benefit

10 years from the date of occurrence of disability

Right to Institute (NOT A CRIMINAL ACTION)


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Sec. 22 - The right to institute the necessary action against the employer

may be commenced within twenty (20) years from the time the delinquency

is known or the assessment is made by the SSS, or from the time the benefit

accrues, as the case may be. (normally from the time of discovery)

o GSIS

4 years from date of contingency except life & retirement which do not prescribe

Benefits where employer advances payment

o Claim for reimbursement?

Jurisdiction of SSC

o SEC. 5. Settlement of Disputes (a) Any dispute arising under this Act with respect to

coverage, benefits, contributions and penalties thereon or any other matter related

thereto, shall be cognizable by the commission, and any case filed with respect thereto shall

be heard by the Commission, or any of its members, or by hearing officers duly authorized by

the Commission and decided within twenty (20) days after the submission of the evidence.

The filing, determination and settlement of disputes shall be governed by the rules and

regulations promulgated by the Commission. (RA 8282)

Filing of criminal action under SSS

o Criminal offenses for violations of the SS law are within the jurisdiction of the regular courts.

o Section 28: (i) Criminal action arising from a violation of the provisions of this Act may be

commenced by the SSS or the employee concerned either under this Act or in appropriate

cases under the Revised Penal Code: Provided, That such criminal action may be filed by the

SSS in the city or municipality where the SSS office is located, if the violation was committed

within its territorial jurisdiction or in the Metro Manila, at the option of the SSS.

o Who has jurisdiction on criminal violations?

According to SSS, it has the option to file a criminal case either before the SSC orregular court citing Section 28 (i) but there is a directive that criminal cases be filed

before the regular courts; Section 5 says about a dispute arising under this Act with respect to coverage,

benefits, contributions and penalties thereon or any other matter related theretounder SSC.

The Revised Rules of SSC (1997) does not define a dispute.

A criminal violation is not within SSC.

BP Blg. 129 says:Sec. 20. Jurisdiction in Criminal Cases Regional Trial Courts shall exercise

exclusive original jurisdiction in all criminal cases not within the exclusivejurisdiction of any court, tribunal or body. Except those now falling under theexclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter beexclusively taken cognizance of by the law.

o Is the consent of SSS required before any criminal case may be filed? No, because Section 28 (i) states that a Criminal action arising from a violation of the

provision of this Act may be commenced by the SSS or the employee concernedeither under this Act or in appropriate cases under the Revised Penal Code xxx.

Definition of employee under SSS

o (d) Employee Any person who performs services for an employer in which either or

both mental or physical efforts are used and who receives compensation for such

services, where there is an employer-employee relationship: Provided, That a self-


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employed person shall be both employee and employer at the same time. (RA 8282,

Sec. 8)

o Employment services excluded

1. Purely casual employment and not for the purpose of occupation or business of theemployer

2. Services performed or in connection with an alien vessel by an employee if he/she is

employed when such vessel is outside the Philippines3. Services performed in the employ of the Philippine government4. Service performed in the employ of a foreign government or international

organization, or their wholly-owned instrumentality unless there is an agreement withthe Philippine Government for the inclusion of such employees in the SSS

5. Such other temporary services performed by temporary employees which may beexcluded by regulation. Employees of bona fide independent contractors shall not bedeemed employees of the employer engaging the service of said contractors.

Effect of final judgment in an NLRC case involving EE relationship

o Final judgment on relationship/conclusive judgement

A final and executor NLRC decision (to the effect that respondent spouses were

not the employees of petitioner) was binding on the criminal case for violationof RA 1161, as amended. (Co vs. People)

Dependency under SSS (read the cases)

o The legal beneficiaries of a member are:

Legally married dependent spouse until he or she remarries;

Dependent legitimate, legitimated or legally adopted and illegitimate children.

These two are primary beneficiaries.

If single, benefits will go to dependent parents who are considered secondary

beneficiaries.

In absence of both primary and secondary, any other person designated by member.

(does not need to be legally married nor a dependent; does not also need to be a legal heir of

the member unlike in GSIS where legal heirs will enjoy the benefits) (RA 8282, Sec. 8[k])

o Dependents

(1) The legal spouse entitled by law to receive support from the member;(2) The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried,

not gainfully employed, and has not reached twenty-one (21) years of age, or if over twenty-one(21) years of age, he is congenitally or while still a minor has been permanently incapacitated andincapable of self-support, physically or mentally; and

(3) The parent who is receiving regular support from the member. (RA 8282, Sec. 8[e])

Portability law

o Portability of benefits- ( Portability law RA 7699)

A member of GSIS who does not qualify for old age and other benefits by reason

of non-fulfillment of the required period of service may be able to qualify for such

benefits by making use of the period during which he rendered services to a

private employer and for which contributions were paid to SSS. This is allowed

under RA 7699 (approved May 1, 1994)

The Act instituted a limited portability scheme in the GSIS and SSS by totalizing

the workers creditable services or contributions in each of the Systems.


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Portability refers to transfer of funds for the benefit and account of a worker

who transfers from one system to the other (RA 7699, Sec. 2 [b]).

Totalization refers to the processof adding up the periods of creditable

services or contributions in each of the Systems for purposes of eligibility and

computation of benefits, For purposes of totalization, overlapping periods of

membership shall be considered once only (Sec. 3)

Overlapping period refers to the period during which a worker contributes

simultaneously to GSIS and SSS.

The totalization of service credits is only resorted when the retiree does not

qualify for benefits in either or both of the Systems.

If a person is qualified to receive benefits granted by GSIS if such right has not

yet been exercised, then this principle does not apply.

Case under SSS where defenses are good faith and lack of criminal intent

o Tan vs. Ballena

In answer to criminal complaint for violation of SS law, petitioners interposed the

defenses of lack of criminal intent and good faith as their failure to remit was

brought about by alleged economic difficulties, and they have already agreed tosettle their obligations with the SSS through a memorandum of agreement to pay

in installments.

SC:

As held by the Court of Appeals, the claims of good faith and absence of criminal

intent for the petitioners' acknowledged non-remittance of the respondents'

contributions deserve scant consideration. The violations charged in this case

pertain to the SSS Law, which is a special law. As such, it belongs to a class of

offenses known as mala prohibita.

Therefore, lack of criminal intent and good faith are not valid defenses

Case of Asia Pro Cooperative

RP v. Asiapro Cooperative

Respondent Asiapro, as a cooperative, is composed of owners-members. Its primary

objectives are to provide savings and credit facilities and to develop other livelihood

services for its owners-members.

In the discharge of the aforesaid primary objectives, respondent cooperative entered

into several Service Contracts with Stanfilco a division of DOLE Philippines, Inc.

and a company based in Bukidnon. The owners-members do not receive

compensation or wages from the respondent cooperative. Instead, they receive a

share in the service surplus which the respondent cooperative earns from different

areas of trade it engages in, such as the income derived from the said Service

Contracts with Stanfilco. The owners-members get their income from the service

surplus generated by the quality and amount of services they rendered, which isdetermined by the Board of Directors of the respondent cooperative.

In order to enjoy the benefits under the Social Security Law of 1997, the owners-

members of the respondent cooperative, who were assigned to Stanfilco requested

the services of the latter to register them with petitioner SSS as self-employed and to

remit their contributions as such SSS sent a letter to Asiapro that based on the

Service Contracts it executed with Stanfilco, respondent cooperative is actually a

manpower contractor supplying employees to Stanfilco and for that reason, it is an


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employer of its owners-members working with Stanfilco. Thus, respondent

cooperative should register itself with petitioner SSS as an employer and make the

corresponding report and remittance of premium contributions in accordance with the

Social Security Law

Who should determine e-e?

Since the existence of an employer-employee relationship between the

respondent cooperative and its owners-members was put in issue and considering

that the compulsory coverage of the SSS Law is predicated on the existence of such

relationship, it behooves the petitioner SSC to determine if there is really an

employer-employee relationship that exists between the respondent cooperative and

its owners-members.

The question on the existence of an employer-employee relationship is not within the

exclusive jurisdiction of the National Labor Relations Commission (NLRC). Article

217 of the Labor Code enumerating the jurisdiction of the Labor Arbiters and the

NLRC provides that:

ART. 217. JURISDICTION OF LABOR ARBITERS AND THE COMMISSION. (a)

. . . .

xxx xxx xxx6. Except claims for Employees Compensation, Social Security, Medicare

and maternity benefits, all other claims, arising from employer-employee relations,

including those of persons in domestic or household service, involving an amount

exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with

a claim for reinstatement.

Although the aforesaid provision speaks merely of claims for Social Security, it would

necessarily include issues on the coverage thereof, because claims are undeniably

rooted in the coverage by the system. Hence, the question on the existence of an

employer-employee relationship for the purpose of determining the coverage of the

Social Security System is explicitly excluded from the jurisdiction of the NLRC and

falls within the jurisdiction of the SSC which is primarily charged with the duty of

settling disputes arising under the Social Security Law of 1997.

In determining the existence of an employer-employee relationship, the following

elements are considered: (1) the selection and engagement of the workers; (2) the

payment of wages by whatever means; (3) the power of dismissal; and (4) the power

to control the worker's conduct, with the latter assuming primacy in the overall

consideration. The most important element is the employer's control of the

employee's conduct, not only as to the result of the work to be done, but also as to

the means and methods to accomplish.

All elements are present in this case.

o First. It is expressly provided in the Service Contracts that it is the

respondent cooperative which has the exclusive discretion in the selection

and engagement of the owners-members as well as its team leaders who willbe assigned at Stanfilco.

o Second. The weekly stipends or the so-called shares in the service surplus

given by the respondent cooperative to its owners-members were in reality

wages, as the same were equivalent to an amount not lower than that

prescribed by existing labor laws, rules and regulations, including the wage

order applicable to the area and industry; or the same shall not be lower than

the prevailing rates of wages. It cannot be doubted then that those stipends


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or shares in the service surplus are indeed wages, because these are given

to the owners-members as compensation in rendering services to

respondent cooperative's client, Stanfilco

o Third. It is also stated in the above-mentioned Service Contracts that it is the

respondent cooperative which has the power to investigate, discipline and

remove the owners-members and its team leaders who were rendering

services at Stanfilco.

o Fourth. It is the respondent cooperative which has the sole control over the

manner and means of performing the services under the Service Contracts

with Stanfilco as well as the means and methods of work. Also, the

respondent cooperative is solely and entirely responsible for its owners-

members, team leaders and other representatives at Stanfilco.

Excluded from coverage of SSS: bona fide independent contractor

o (5) Such other temporary services performed by temporary employees which may beexcluded by regulation. Employees of bona fide independent contractors shall not bedeemed employees of the employer engaging the service of said contractors.

o SSS v. CA

Whether or not an agricultural laborer who was hired on "pakyaw" basis can be

considered an employee entitled to compulsory coverage and corresponding benefits

under the Social Security Law.

o SC:

There was no shred of evidence to show that Tana was only a seasonal worker. All

witnesses, including Ayalde, testified that Tana and his family resided in the plantation.

The only logical explanation for this set up was that Tana was working for most part of

the year exclusively for Ayalde. A closer scrutiny of the records revealed that while

Ayalde may not have directly imposed on Tana the manner and methods to follow in

performing his tasks, she did exercise control through her overseer. Under the

circumstances, the relationship between Ayalde and Tana has more of the attributes of

employer-employee than that of an independent contractor hired to perform a specificproject.

Manifestations of a labor-only contractor

o Naa ra sa labor hehehe

Which one between principal or contractor reports the "employee" to SSS?

o Contractor

Maternity leave

o It is a daily cash allowance granted to female member who was unable to work due to

childbirth or miscarriage.

o It is equivalent to 100% of members average daily salary credit multiplied by 60 days fornormal delivery or miscarriage, 78 days for caesarian section delivery.

o In maternity benefit, being legally married is not a requirement; whereas in paternity

benefit, being legally married is a requirement

Therefore, a single mother who is a member may still avail of the maternity

benefit

No requirement that if childbirth, all four instances shall be childbirth only.


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o Bill plans to change 60 to 78 and 78 to 100 days reason here is due to childbirth or

miscarriage to enhance the bonding between mother and child

Deliveries covered:

Only for the first four deliveries or miscarriages shall be paid starting May 24,

1997 (effectivity of RA 8282)

Notice required:

As soon as pregnancy is confirmed, member must notify immediately employer

or SSS, if unemployed, etc. and probable date of childbirth at least 60 days from

date of conception. Employer must in turn notify SSS after receipt of notification.

Failure to observe the rule may result in denial.

Qualifications for entitlement of Maternity Leave

1. She has paid at least three monthly contributions within the 12-month period immediately

preceding the semester of her childbirth or miscarriage

2. She has given the required notification of her pregnancy through her employer if

employed, or to SSS if separated, voluntary or self-employed.

For example: SSS member gives birth in December 2006.

The semester of contingency would be from July 2006 to December 2006.The 12-month period before the semester of contingency would be from July 2005 to

June 2006.

Contributions

o SSS 10.4% of the monthly salary credit not exceeding P15,000 and payable by both

employer (7.07%) and employee (3.33%) effective Jan. 1, 2007.

o EC Starting Jan. 1, 2007, P10 for a monthly salary credit of P14,500 and below and P30 for

employees with an MSC of P15,000 and payable only by employer.

o GSIS

Member Employer

First P10,000 9% 12%

In excess of P10,000 2% 12%

o Who is responsible for remittance of contributions? employer

o Date of remittance? First ten days of calendar month following the month to which

contributions apply.

Case of GSIS v. NLRC

o Private respondents were security guards of a security agency assigned to Tacloban branch

of GSIS.

o The security guards thereafter filed an illegal dismissal against the agency and GSIS,

separation pay, salary differential, 13th

month and unpaid salary

o GSIS filed the present petition contending the error committed because it is exempt from

execution per charter.o SC:

The fact that there is no actual and direct employer-employee relationship between

petitioner and respondents does not absolve the former from liability for the latters

monetary claims. When petitioner contracted DNLs security services, petitioner became

an indirect employer of respondents, pursuant to Article 107 of the Labor Code.

After DNL Security failed to pay the respondents the correct wages and other monetary

benefits, petitioner, as principal, became jointly and severally liable, as provided in

Articles 106 and 109 of the Labor Code.


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Citing GSIS vs. RTC of Pasig, SC did not agree with petitioner that the enforcement of

the decision is impossible because its charter unequivocally exempts it from execution.

Petitioners chartershould not be used to evade its liabilities to its employees, even to

its indirect employees, as mandated by the Labor Code.

Documents

Finals Pointers