Labor I Midterms Reviewer

7/29/2019 Labor I Midterms Reviewer

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LABOR

Art. 1. Name of Decree

This Decree shall be known as the Labor Code of the Philippines

Art. 2. Date of Effectivity

This Code shall take effect six (6) months after its promulgation.

Definition of Labor Legislation

a. Consists of statutes, regulations and jurisprudenceb. Governing the relations between capital and laborc. By providing for certain employment standards, andd. A legal framework for negotiating, adjusting and administering those

standards and other incidents of employment

Classifications of Labor Legislation

1. Labor Standards A law which sets out the least or basic terms, conditions and benefits of

employment that employers must provide or comply with and to which

employees are entitled as a matter of legal right

Minimum requirements prescribed by existing laws, rules and regulationsrelating to

a. Wagesb. Hours of workc. Cost-of-living allowance, andd. Other monetary and welfare benefits

2. Labor Relations

Defines the status, rights and duties, and institutional mechanisms thatgovern the individual and collective interactions of employers,

employees or their representatives

Definition of Terms

a. Labor physical toil although it does not necessarily exclude theapplication of skill

b. Skill familiar knowledge of any art or science, united with readiness anddexterity in execution, performance or application

c. Work covers all forms of physical or mental exertion, or both combinedd. Workers may be self-employed people or those working in the service

and under the control of another, regardless of rank, title or nature of work

e. Employee salaried person working for another who controls or supervisesthe means, manner or method of doing the work

Definition of Social Legislation

Laws that provide particular kinds of protection or benefits to society orsegments thereof in furtherance of social justice

Raison detre of Labor Laws

Social Justice both a juridical principle (prescribes equality of the peoplebefore the law) and societal goal (attainment of decent quality of life of the

masses through humane productive efforts

o Exemptions to the rule of equality before the law:a. Classification rests on substantial distinctionsb. Germane to the purpose/s of the lawc. Not confined to existing conditionsd. Apply equally to all members of the same class

Police power is the basis or foundation of social justice Department Order No. 1 of 1988 temporarily suspended the deployment of

female domestic workers abroad

Birth of the Labor Code

Mr. Blas F. Ople began writing the Labor Code in 1968; he is regarded as theFather of the Labor Code

It was approved on 1 November 1974 but was to take effect 6 months afterits promulgation

7 Principles underlying the Labor Code

1. Labor relations must be made both responsive and responsible to nationaldevelopment

2. During a period of national emergency, it must substitute rationality forconfrontation

3. Labor justice made expeditious without sacrificing due process4. Manpower development and employment regarded as a major dimension

of labor policy

5. Global labor market available to qualified Filipinos6. Command adequate resources and acquire a capable machinery for

effective and sustained implementation

7. Popular participation in national policy-making though tripartism


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International Aspect

Philippines is a member of the International Labor Organization (ILO), a UNspecialized agency which seeks the promotion of social justice and

internationally recognized human and labor rights

ILO created in 1919o Acceptance of ILO in the Philippines was on 19 March 1948 upon

passing of Res. No. 44 by the Philippine Senate

o Membership was made on 15 June 1948 in San Francisco

Art. 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.

Art. 4. Construction in Favor of Labor

All doubts in the implementation and interpretation of the provisions of this Code,

including its implementing rules and regulations, shall be resolved in favor of labor.

The policy is to extend the decrees applicability to a greater number ofemployees to enable them to avail of the benefits under the laws

The law regards lowly workers with tenderness and even favor and alwayswith faith and hope in his capacity to help in shaping the nations future

Reason for according greater protection to employees the employerstands on higher footing that the employee

a. There is greater supply than demand for laborb. Need for employment by labor comes from vital, and even desperate

necessity

However, management also has its own rights which are entitled to respectand enforcement in the interest of simple fair play

Management prerogatives are subject to limitations provided bya. Lawb. Contract or collective bargaining agreementsc. General principles of fair play and justice

Management rights:a. Right to Return of Investments and make Profitb. Right to Prescribe Rules

o Company policies and regulations are, unless shown to be grosslyoppressive or contrary to law, generally binding and valid on the

partiesc. Right to Select Employees

o Right under the law to full freedom in employing any person free toaccept employment from him, and this, except as restricted by

valid statute or contract, at a wage and under conditions

agreeable to them, or to refuse employment whomever he may

wish irrespective of his motive

d. Right to Transfer or Discharge Employeeso Such transfer or dismissal must not be done in abuse of power but in

good faith and is due to causes beyond control

Art. 5. Rules and Regulations

The Department of Labor and Employment and other government agencies

charged with the administration and enforcement of this Code or any of its parts

shall promulgate the necessary implementing rules and regulations. Such rules and

regulations shall become effective fifteen (15) days after announcement of their

adoption in newspapers of general circulation.

A rule or regulation promulgated by an administrative body to implement alaw in excess of its rule-making authority is void

An administrative interpretation which takes away a benefit granted in thelaw is ultra vires

Art. 6. Applicability

All rights and benefits granted to workers under this Code shall, except as may

otherwise be provided herein, apply alike to all workers, whether agricultural or

non-agricultural.

GOCCs with original charter are subject to Civil Service rules and not theLabor Code

The Labor Code applies to government corporations incorporated underthe Corporation Code

Examples of GOCCs incorporated under the Corporation Codea. Philippine National Oil Corporation Energy Development Corporation

(PNOC-EDC)

b. Food Terminal Inc.c. National Housing Corporation

Labor Code may apply even if the parties are not employers andemployees of each other

o The presence or absence of employer-employee relationship is itself alabor law question and is resolved by applying Labor Code provisions

EMANCIPATION OF TENANTS

Art. 7. Statement of objectives

Inasmuch as the old concept of land ownership by a few has spawned valid andlegitimate grievances that gave rise to violent conflict and social tension and the


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redress of such legitimate grievances being one of the fundamental objectives of

the New Society, it has become imperative to start reformation with the

emancipation of the tiller of the soil from his bondage.

Art. 8. Transfer of lands to tenant-workers

Being a vital part of the labor force, tenant-farmers on private agricultural lands

primarily devoted to rice and corn under a system of share crop or lease tenancy

whether classified as landed estate or not shall be deemed owner of a portionconstituting a family-size farm of five (5) hectares, if not irrigated and three (3)

hectares, if irrigated.

In all cases, the land owner may retain an area of not more than seven (7)

hectares if such landowner is cultivating such area or will now cultivate it.

Art. 9. Determination of land value

For the purpose of determining the cost of the land to be transferred to the tenant-

farmer, the value of the land shall be equivalent to two and one-half (2-1/2) times

the average harvest of three (3) normal crop years immediately preceding the

promulgation of Presidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the rate of six percent (6%) per

annum, shall be paid by the tenant in fifteen (15) years of fifteen (15) equal annual

amortizations.

In case of default, the amortization due shall be paid by the farmers' cooperative in

which the defaulting tenant-farmer is a member, with the cooperative having a

right of recourse against him.

The government shall guarantee such amortizations with shares of stock in

government-owned and government-controlled corporations.

Art. 10. Conditions of ownership

No title to the land acquired by the tenant-farmer under Presidential Decree No. 27shall be actually issued to him unless and until he has become a full-fledged

member of a duly recognized farmers' cooperative.

Title to the land acquired pursuant to Presidential Decree No. 27 or the Land

Reform Program of the Government shall not be transferable except by hereditary

succession or to the Government in accordance with the provisions of Presidential

Decree No. 27, the Code of Agrarian Reforms and other existing laws and

regulations.

Art. 11. Implementing agency

The Department of Agrarian Reform shall promulgate the necessary rules and

regulations to implement the provisions of this Chapter.

Labor Code covers agrarian reform in 5 articles only since it is a subjectprincipally governed by RA 6657 (Comprehensive Agrarian Reform Law of1988)

EO 228 declared full land ownership in favor of the beneficiaries of PD 27and provided for the valuation of still unvalued lands covered by the

decrees as well as the manner of their payment

o PD 27 decreed the emancipation of tenants from the bondage of soiland transferring to them ownership of land they till

PP 131 is the Comprehensive Agrarian Reform Program Share tenancy was abolished and outlawed by RA 3844 putting agricultural

leasehold system and eventual ownership of land by its tillers in its stead

Compensation scheme shall be just and only upon full payment of such willtitle to all expropriated properties be transferred to the State

Retention Limits:a. Landowner not to exceed 5 hectaresb. Each child of the landowner 3 hectares but subject to following

qualifications:

i. He is at least 15 years oldii. He is actually tilling the land or directly managing the farm

Lands not covered under PD 27a. Homestead Patent enacted for the welfare and protection of thepoor

o The law gives a needy citizen a piece of land where he may built amodest house for himself and family and plant what is necessary for

subsistence and for satisfaction of lifes other needs

b. Residential subdivisions an agricultural tenancy cannot beestablished on land in a residential subdivision

c. Livestock, Poultry and Swine Raising Lands

PRE-EMPLOYMENT

Art. 12. Statement of objectives

It is the policy of the State:

a. To promote and maintain a state of full employment through improvedmanpower training, allocation and utilization;

b. To protect every citizen desiring to work locally or overseas by securing for himthe best possible terms and conditions of employment;

c. To facilitate a free choice of available employment by persons seeking work inconformity with the national interest;

d. To facilitate and regulate the movement of workers in conformity with thenational interest;

e. To regulate the employment of aliens, including the establishment of a


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registration and/or work permit system;

f. To strengthen the network of public employment offices and rationalize theparticipation of the private sector in the recruitment and placement of

workers, locally and overseas, to serve national development objectives;

g. To insure careful selection of Filipino workers for overseas employment in orderto protect the good name of the Philippines abroad.

Department of Labor and Employment (DOLE) primary policy-making,programming, coordinating, and administrative entity of Executive Branch

of the government in the field of labor and employment

DOLEs primary responsibility:a. Promotion of gainful employment opportunitiesb. Advancement of workers welfarec. Maintenance of industrial peace

RECRUITMENT AND PLACE OF WORKERS

Art. 13. Definitions

a. "Worker" means any member of the labor force, whether employed orunemployed.

b. "Recruitment and placement" refers to any act of canvassing, enlisting,contracting, transporting, utilizing, hiring or procuring workers, and includes

referrals, contract services, promising or advertising for employment, locally or

abroad, whether for profit or not: Provided, That any person or entity which, in

any manner, offers or promises for a fee, employment to two or more persons

shall be deemed engaged in recruitment and placement.

c. "Private fee-charging employment agency" means any person or entityengaged in recruitment and placement of workers for a fee which is charged,

directly or indirectly, from the workers or employers or both.

d. "License" means a document issued by the Department of Labor authorizing aperson or entity to operate a private employment agency.

e. "Private recruitment entity" means any person or association engaged in therecruitment and placement of workers, locally or overseas, without charging,

directly or indirectly, any fee from the workers or employers.

f. "Authority" means a document issued by the Department of Labor authorizinga person or association to engage in recruitment and placement activities as

a private recruitment entity.

g. "Seaman" means any person employed in a vessel engaged in maritimenavigation.

h. "Overseas employment" means employment of a worker outside thePhilippines.

i. "Emigrant" means any person, worker or otherwise, who emigrates to a foreigncountry by virtue of an immigrant visa or resident permit or its equivalent in the

country of destination.

The number of persons is not an essential ingredient of the act of recruitmentand placement of workers

To prove recruitment activities, it must be shown that the accused gave thecomplainant the distinct impression that she had the power or ability to send

him abroad for work, such that the latter was convinced to part with her

money in order to be employed

Art. 14. Employment promotion

The Secretary of Labor shall have the power and authority:

a. To organize and establish new employment offices in addition to theexisting employment offices under the Department of Labor as the need

arises;

b. To organize and establish a nationwide job clearance and informationsystem 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. To require any person, establishment, organization or institution to submitsuch employment information as may be prescribed by the Secretary of

Labor.

Effective allocation of manpower resources in local employment is assigned toBureau of Local Employment (BLE) and Philippine Overseas EmploymentAdministration (POEA)

Art. 15. Bureau of Employment Services

a. The Bureau of Employment Services shall be primarily responsible fordeveloping and monitoring a comprehensive employment program. It shall

have the power and duty:

1. To formulate and develop plans and programs to implement theemployment promotion objectives of this Title;

2. To establish and maintain a registration and/or licensing system toregulate private sector participation in the recruitment and placement of

workers, locally and overseas, and to secure the best possible terms andconditions of employment for Filipino contract workers and compliance


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therewith under such rules and regulations as may be issued by the

Minister of Labor;

3. To formulate and develop employment programs designed to benefitdisadvantaged groups and communities;

4. To establish and maintain a registration and/or work permit system toregulate the employment of aliens;

5. To develop a labor market information system in aid of proper manpowerand development planning;

6. To develop a responsive vocational guidance and testing system in aid ofproper human resources allocation; and

7. To maintain a central registry of skills, except seamen.b. The regional offices of the Ministry of Labor shall have the original and

exclusive jurisdiction over all matters or cases involving employer-employee

relations including money claims, arising out of or by virtue of any law or

contracts involving Filipino workers for overseas employment except seamen:

Provided, That the Bureau of Employment Services may, in the case of theNational Capital Region, exercise such power, whenever the Minister of Labordeems it appropriate. The decisions of the regional offices of the Bureau of

Employment Services, if so authorized by the Minister of Labor as provided in

this Article, shall be appealable to the National Labor Relations Commission

upon the same grounds provided in Article 223 hereof. The decisions of the

National Labor Relations Commission shall be final and inappealable.

c. The Minister of Labor shall have the power to impose and collect fees basedon rates recommended by the Bureau of Employment Services. Such fees shall

be deposited in the National Treasury as a special account of the General

Fund, for the promotion of the objectives of the Bureau of Employment

Services, subject to the provisions of Section 40 of Presidential Decree No. 1177.

RA 8759 established Public Employment Service Office (PESO) intended toserve as employment service and information center in its area of operationo It also renders livelihood self-employment bazaars (job fairs) and hiring

of Workers in Infrastructure Projects (WHIP)

Art. 16. Private recruitment

Except as provided in Chapter II of this Title, no person or entity other than the publicemployment offices, shall engage in the recruitment and placement of workers.

Entities that are authorized to recruit and place workers for local or overseasemployment:

1. Public Employment Offices2. Private Recruitment Entities

3. Private Employment Agencies4. Shipping or Manning Agents or Representatives5. POEA6. Construction Contractors authorized to operate by POEA and

Construction Industry Authority

7. Members of Diplomatic corps8. Other entities authorized by DOLE

Art. 17. Overseas Employment Development Board

An Overseas Employment Development Board is hereby created to undertake, in

cooperation with relevant entities and agencies, a systematic program foroverseas employment of Filipino workers in excess of domestic needs and to

protect their rights to fair and equitable employment practices. It shall have the

power and duty:

a. Promote the overseas employment of Filipino workers through acomprehensive market promotion and development program;

b. Secure the best possible terms and conditions of employment of Filipinocontract workers on a government-to-government basis and to ensurecompliance therewith;

c. Recruit and place workers for overseas employment on a government-to-government arrangement and in such other sectors as policy may dictate

d. Act as secretariat for the Board of Trustees of the Welfare and Training Fund forOverseas Workers.

Legislative background of Overseas Employmenta. Act 2486 provided for license issuance and license fee and welfare

regulations

b. PD 442 (Labor Code) gave government complete control of theoverseas employment program

c. PD 1412 limited governments role to government-to-governmentarrangements and forced to revive private sector participation in the

recruitment and placement of Filipino workers

d. EO 797 streamlined operations in overseas employment programe. EO 247 Reorganization Act of POEAf. RA 8042 Migrant Workers and Overseas Filipinos Act

o Selective deployment in countries where rights of Filipino migrantworkers are protected

Overseas Filipino Worker (OFW) a Filipino worker who is to be engaged, isengaged, or has been engaged in a remunerated activity in a country of

which he or she is not a legal resident1. Sea-based 2. Land-based


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POEA performs regulatory and adjudicatory functions in cases ofa. Recruitment violation and related casesb. Employer-employee relations except in cases of Money Claims where

jurisdiction is vested with the NLRC

c. Disciplinary action cases consisting of all complaints against a contractworker for breach of discipline

Jurisdiction of NLRCa. Money Claimsb. Compromise Agreement

Non-compliance of mandatory periods to settle cases shall result inadministrative penalties:

a. Salary of the official withheld until he complies therewithb. Suspension of not more than 90 daysc. Dismissal from service with disqualification to hold any appointive public

office for 5 years

Employer-employee Relation cases:a. Contractual employees include seafarersb. Premature termination of contract where it is not shown to be based on

lawful or valid grounds

o Award to pay the worker his salary corresponding to the unexpiredportion of his employment contract

o For OFW, entitled to full reimbursement of placement fee withinterest (12%) plus salary for the unexpired portion of his

employment contract

c. Due process required to Terminate Employmento Employer is bound to furnish a seafarer 2 notices:

1. Written charge2. Written notice of dismissal

d. Contracted but Not Deployedo Perfection of employment contract both parties agreed on the

object and the cause as well as the rest of the terms and conditions

therein

Upon perfection, even without deployment, both parties areentitled to certain rights and obligations

o Commencement of employment contract deployment from thepoint of hire

e. Money Claimso Employers nationality is immaterial, Filipino seamen working in

ocean-going vessels should receive the same wages and benefits

without regard to the nationality of the vessels on which they serve

f. Basis of Compensation on Death and other benefitso Jurisdiction is with the Labor Arbiters of NLRCo Death benefit, funeral benefit and burial gratuityo Under the Standard Employment Contract, the death of a seafarer,

to be compensable, must occur during the term of his contract of

employment not necessarily due to causes that are work-related

g. Evaluation of Disabilityo Permanent Disability inability of a worker to perform his job for

more than 120 days, regardless of whether or not he loses the use of

any part of his body

o Total Disability disablement of an employee to earn wages in thesame kind of work that he was trained for, or accustomed to

perform, or any kind of work which a person of his mentality and

attainments could no

o In disability compensation, it is not the injury which is compensatedbut rather it is the incapacity to work resulting in the impairment of

ones earning capacity

h. Overseas Compensation Benefits in Dollars is allowed as payment of itsequivalent in the Philippine currency is allowed

Grounds for Disciplinary Action:a. Commission of a felonyb. Drug addiction or possession or trafficking of prohibited drugsc. Desertion or abandonmentd. Drunkennesse. Gamblingf. Initiating or joining a strike or work stoppageg. Creating trouble at the worksiteh. Embezzlement of company funds or of money and properties of a

fellow worker entrusted for delivery to kins or relativesi. Theft or robberyj. Prostitutionk. Vandalism or destruction of company propertyl. Gunrunning or possession of deadly weaponsm. Unjust refusal to depart for worksiten. Violation of laws and sacred practices of host country

Outside of POEA Jurisdiction1. Enforce foreign judgment2. Torts


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Art. 18. Ban on direct-hiring

No employer may hire a Filipino worker for overseas employment except throughthe Boards and entities authorized by the Secretary of Labor. Direct-hiring by

members of the diplomatic corps, international organizations and such other

employers as may be allowed by the Secretary of Labor is exempted from this

provision.

Exceptions on prohibition on direct hiring of Filipino workers by foreignemployer:

a. Direct hiring by members of diplomatic corpsb. name hirees those individual workers who are able to secure

contracts for overseas employment on their own efforts and

representation without assistance or participation of any agency;

however, such hiring must be processed through POEA

Art. 19. Office of Emigrant Affairs

a. Pursuant to the national policy to maintain close ties with Filipino migrantcommunities and promote their welfare as well as establish a data bank in aid

of national manpower policy formulation, an Office of Emigrant Affairs is

hereby created in the Department of Labor. The Office shall be a unit at the

Office of the Secretary and shall initially be manned and operated by suchpersonnel and through such funding as are available within the Department

and its attached agencies. Thereafter, its appropriation shall be made part of

the regular General Appropriations Decree.

b. The office shall, among others, promote the well-being of emigrants andmaintain their close link to the homeland by:

1. serving as a liaison with migrant communities;2. provision of welfare and cultural services;3. promote and facilitate re-integration of migrants into the national

mainstream;

4. promote economic; political and cultural ties with the communities; and5. generally to undertake such activities as may be appropriate to enhance

such cooperative links.

BP 79 Commission on Filipinos Overseas where it provides assistance andadvice to the President of the Philippines and Congress in formulation of

policies and measures affecting Filipinos overseas

o There are 5 appointed members by the Presidento The Minister of Foreign Affairs is an ex-officio member

Art. 20. National Seamen Board

a. A National Seamen Board is hereby created which shall develop and maintaina comprehensive program for Filipino seamen employed overseas. It shall

have the power and duty:

1. To provide free placement services for seamen;2. To regulate and supervise the activities of agents or representatives of

shipping companies in the hiring of seamen for overseas employment andsecure the best possible terms of employment for contract seamen

workers and secure compliance therewith;

3. To maintain a complete registry of all Filipino seamen.b. The Board shall have original and exclusive jurisdiction over all matters or cases

including money claims, involving employer-employee relations, arising out of

or by virtue of any law or contracts involving Filipino seamen for overseas

employment. The decisions of the Board shall be appealable to the National

Labor Relations Commission upon the same grounds provided in Article 223

hereof. The decisions of the National Labor Relations Commission shall be final

and inappealable.

This was abolished and its functions were transferred to POEA

An agreement that diminishes the employees pay and benefits containedin a POEA-approved contract is void unless such subsequent agreement is

approved by POEA

When claim was filed within the 3-year statutory period, recovery thereforcannot be barred by laches

Laches failure or neglect for an unreasonable and unexplained length oftime to do that which, by exercising due diligence, could or should have

been done earlier

Minimum employment conditions:a. Guaranteed wages for regular working hours and overtime payb.

Free transportation to and from worksite, or offsetting benefit

c. Free food and accommodation, or offsetting benefitd. Just or authorized causes for termination

Art. 21. Foreign service role and participation

To provide ample protection to Filipino workers abroad, the labor attaches, the

labor reporting officers duly designated by the Secretary of Labor and the

Philippine diplomatic or consular officials concerned shall, even without prior

instruction or advice from the home office, exercise the power and duty:

a. To provide all Filipino workers within their jurisdiction assistance on all mattersarising out of employment;

b. To insure that Filipino workers are not exploited or discriminated against;


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c. To verify and certify as requisite to authentication that the terms andconditions of employment in contracts involving Filipino workers are in

accordance with the Labor Code and rules and regulations of the Overseas

Employment Development Board and National Seamen Board;

d. To make continuing studies or researches and recommendations on thevarious aspects of the employment market within their jurisdiction;

e. To gather and analyze information on the employment situation and itsprobable trends, and to make such information available; and

f. To perform such other duties as may be required of them from time to time. Additional agencies that promote the welfare and protect rights of migrant

workers and of all overseas Filipinos::

1. DFA take priority action or make representation with the foreignauthority concerned to protect rights of migrant workers and other

overseas Filipinos and extend immediate assistance including

repatriation

2. DOLE sees to it that labor and social welfare laws in foreign countriesare fairly applied to migrant workers

3. POEA regulates private sector participation in recruitment andoverseas placement of workers by setting up a licensing and registration

system

4. OWWA provides Filipino migrant worker and his family all theassistance they may need in enforcement of contractual obligations

5. RPM Re-Placement and Monitoring Center develops livelihoodprograms for returning workers and formulate a computer-based

information system on skilled Filipino migrant workers

Art. 22. Mandatory remittance of foreign exchange earnings

It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign

exchange earnings to their families, dependents, and/or beneficiaries in thecountry in accordance with rules and regulations prescribed by the Secretary of

Labor.

Art. 23. Composition of the Boards

a. The OEDB shall be composed of the Secretary of Labor and Employment asChairman, the Undersecretary of Labor as Vice-Chairman, and a

representative each of the Department of Foreign Affairs, the Department of

National Defense, the Central Bank, the Department of Education, Culture and

Sports, the National Manpower and Youth Council, the Bureau of Employment

Services, a workers organization and an employers organization and the

Executive Director of the OEDB as members.

b. The National Seamen Board shall be composed of the Secretary of Labor andEmployment as Chairman, the Undersecretary of Labor as Vice-Chairman, the

Commandant of the Philippine Coast Guard, and a representative each of

the Department of Foreign Affairs, the Department of Education, Culture and

Sports, the Central Bank, the Maritime Industry Authority, the Bureau ofEmployment Services, a national shipping association and the Executive

Director of the NSB as members.

The members of the Boards shall receive allowances to be determined by theBoard which shall not be more than P2,000.00 per month.

c. The Boards shall be attached to the Department of Labor for policy andprogram coordination. They shall each be assisted by a Secretariat headed by

an Executive Director who shall be a Filipino citizen with sufficient experience in

manpower administration, including overseas employment activities. The

Executive Director shall be appointed by the President of the Philippines upon

the recommendation of the Secretary of Labor and shall receive an annual

salary as fixed by law. The Secretary of Labor shall appoint the other members

of the Secretariat.

d. The Auditor General shall appoint his representative to the Boards to audit theirrespective accounts in accordance with auditing laws and pertinent rules and

regulations.

Governing Board:1. Chairman = Secretary of Labor and Employment2. Administrator appointed by President upon recommendation of the

Secretary

3. Third member well versed in field of overseas employment who shallbe appointed by the President for a term of 2 years

Art. 24. Boards to issue rules and collect fees

The Boards shall issue appropriate rules and regulations to carry out their functions.

They shall have the power to impose and collect fees from employers concerned,

which shall be deposited in the respective accounts of said Boards and be used by

them exclusively to promote their objectives.

Art. 25. Private sector participation in the recruitment and placement of workers

Pursuant to national development objectives and in 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,

locally and overseas, under such guidelines, rules and 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


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engaging in the business of recruitment and placement of workers for overseas

employment whether for profit or not.

Persons with derogatory records such as those convicted for illegal recruitment orother crimes involving moral turpitude are also disqualified

Art. 27. Citizenship requirement.

Only Filipino citizens or corporations, partnerships or entities at least seventy-five

percent (75%) of the authorized and voting capital stock of which is owned andcontrolled by Filipino citizens shall be permitted to participate in the recruitment

and placement of workers, locally or overseas.

Art. 28. Capitalization

All applicants for authority to hire or renewal of license to recruit are required to

have such substantial capitalization as determined by the Secretary of Labor.

Capitalization requirement:1. Private employment agency for local employment

a. Single proprietorship or partnership minimum networth of P200kb. Corporation minimum paid-up capital of P500k

2. Private recruitment or manning agency for overseas employmenta. Single proprietorship or partnership minimum capitalization of

P2M

b. Corporation minimum paid-up capital of P2M

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. Prior to the conduct of provincial recruitment, a copy of the authority shall

be presented to the DOLE Regional Director concerned

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 applicants for license or authority shall post such cash and surety bonds as

determined by the Secretary of Labor to guarantee compliance with prescribed

recruitment procedures, rules and regulations, and terms and conditions ofemployment as may be appropriate.

Amount of Bond:1. Recruitment agency for local employment valid for 2 years

a. Cash bond = P25kb. Surety bond = P100k

2. Recruitment or manning agency for overseas employment valid forthe period of license

a. Escrow agreement = P1M with confirmation of escrow depositb. Surety bond = P100k from a bonding company accredited with

Insurance Commission

The bond under this article is different from an appeal bond (Art. 223)required for the perfection of an appeal

The bond under this article is intended to answer only for employment-related claims and for violations of labor laws

Once an Order or Notice of Garnishment is served upon the Bank, the POEAshall require the agency to replenish its escrow deposit

Release of Cash Bond/Deposit in Escrow1. Recruitment agency for local employment

o Only after posting of a surety bond of similar amount which will bevalid for 3 years from expiration of license

2. Recruitment or manning agency for overseas employmento Only after posting a surety bond of similar amount valid for 4 years

from expiration of license

Art. 32. Fees to be paid by workers

Any person applying with a private fee-charging employment agency for

employment assistance shall not be charged any fee until he has obtained

employment through its efforts or has actually commenced employment. Such fee

shall be always covered with the appropriate receipt clearly showing the amount

paid. The Secretary of Labor shall promulgate a schedule of allowable fees.

Chargeable fees:1. Placement fee for local employment not exceed 20% of workers first

months basic salary and in no case shall it be charged prior to the

actual commencement of employment

2. Placement and Documentation fees for overseas employment thereare those chargeable to Principals and to Workers separately

Service fees:1. Employment agency for local employment not exceed 20% of

annual salary of the worker but in no case shall it be deducted from

workers salary, same with transportation expenses of worker from place

of origin to the place of work


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LaborLaw1 Page10of21

2. Recruitment or manning agency for overseas employment chargedonly to the principals

POEA has the power to order refund of illegally collected fees

Art. 33. Reports on employment status

Whenever the public interest requires, the Secretary of Labor may direct all persons

or entities within the coverage of this Title to submit a report on the status of

employment, including job vacancies, details of job requisitions, separation fromjobs, wages, other terms and conditions and other employment data.

Art. 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 thatspecified in the schedule of allowable fees prescribed by the Secretary of

Labor, or to make a worker pay any amount greater than that actually

received by him as a loan or advance;

b. To furnish or publish any false notice or information or document in relation torecruitment or employment;

c.

To give any false notice, testimony, information or document or commit anyact of misrepresentation for the purpose of securing a license or authority

under this Code.

d. To induce or attempt to induce a worker already employed to quit hisemployment 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 anyworker who has not applied for employment through his agency;

f. To engage in the recruitment or placement of workers in jobs harmful to publichealth or morality or to the dignity of the Republic of the Philippines;

g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or byhis duly authorized representatives;

h. To fail to file reports on the status of employment, placement vacancies,remittance of foreign exchange earnings, separation from jobs, departures

and such other matters or information as may be required by the Secretary of

Labor.

i. To substitute or alter employment contracts approved and verified by theDepartment 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 intravel agency or to be engaged directly or indirectly in the management of atravel agency; and

k. To withhold or deny travel documents from applicant workers beforedeparture for monetary or financial considerations other than those authorized

under this Code and its implementing rules and regulations.

Acts under this are not only grounds for suspension or cancellation of licenseor authority but likewise constitute illegal recruitment under RA 8042

Art. 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, GeneralOrders and Letters of Instructions.

Grounds for imposition of administrative sanctions:a. Engaging in act/s of misrepresentation for purpose of securing a license

or renewal thereof

b. Engaging in recruitment or placement of workers in jobs harmful topublic health or morality or dignity

c. Charging of any fee in amount exceeding the allowable rated. Obstructing inspections by DOLE

DOLE Secretary and POEA Administrator have concurrent jurisdiction tosuspend or cancel a license

A recruitment agency is solidarily liable for the unpaid salaries of a worker itrecruited for employment with a foreign principal

o Even if the recruitment agency and the principal had already severedtheir agency agreement at the time the worker was injured, the

recruitment agency may still be sued for violation of the employment

contract, if no notice of the termination was given to the employee

A foreign corporation which, through unlicensed agents, recruits workers inthe country may be sued in and found liable by Philippine Courts

WORKING CONDITIONS AND REST PERIODS

HOURS OF WORK

Art. 82. Coverage.

The provisions of this Title shall apply to employees in all establishments and

undertakings 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.

As used herein, "managerial employees" refer to those whose primary duty consists of

the management of the establishment in which they are employed or of a

department or subdivision thereof, and to other officers or members of the

managerial staff.

"Field personnel" shall refer to non-agricultural employees who regularly perform their


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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.

These conditions or standards of employment apply only if there existsemployer-employee relationship

o The character of the relationship is not whatever the parties call it butwhat the law calls it after examination of facts

o An employer-employee relationship may exist regardless of the natureof the activities, core or non-core jobs, involved

Question of law = there is doubt as to what the law is on a certain state offacts

Question of fact = doubt as to the truth or falsity of alleged facts Definitions under the Social Security Law:

1. Employera. Any person, natural or juridical, domestic or foreign, who carries on

in the Philippines

b. Any trade, business, industry, undertaking or activity of any kind andc. Uses the services of another person who is under his order as

regards the employment

2. Employeea. Any person who performs services for an employerb. In which either or both mental and physical efforts are used andc. Who receives compensation for such servicesd. Where there is an employer-employee relationship

Elements or Tests of Employment Relationship:1. Selection and engagement of employee2. Payment of wages3. Power of dismissal4. Employers power to control the employee with respect to means and

methods by which the work is to be accomplished (control test)

o This is the most important elemento This calls only for the existence of the right to control and not the

actual exercise of the right

Hallmarks of a management system where there can be no escaping theconclusion that one is an employee of an insurance company:

a. exclusivity of service for the companyb. control of assignmentsc. removal of agentsd. collection of premiums

e. furnishing of facilities and materials as well as capital described as unitdevelopment fund

Independent contractors can employ others to work and accomplishcontemplated result without consent of contractee

o Employee cannot substitute another in his place without consent of hisemployer

When the control test is insufficient to determine the existence ofemployer-employee relationship, the two-tiered approach test is used:

1. Putative employers power to control the employee with respect tomeans and methods by which work is to be accomplished

2. Underlying economic realities of the activity or relationship (economicrealties test)

a. Extent to which the services performed are an integral part ofemployers business

b. Extent of workers investment in equipment and facilitiesc. Nature and degree of control exercised by employerd. Workers opportunity for profit and losse. Amount of initiative, skill, judgment or foresight required for the

success of the claimed independent enterprise

f. Permanency and duration of relationshipg. Degree of dependency of worker upon the employer for his

continued employment in that line of business

Evidence of employment is any competent and relevant evidence to provesuch relationship

o Examples of evidence to show employment:a. Identification cardb. Vouchers covering salaries or payrolls

Mode of compensation is not a test of employment statusc. SSS registrationd. Appointment letters or employment contractse. Personnel lists or organization chartsf. Testimony of co-employees

When Employment Relationship PresentInsurance Agent 2 types:

A. Salaried employees who keep definite hours and workunder the control and supervision of company

(employee)

B. Registered representatives who work on commissionbasis


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School Teachers University controls the work by prescribing the courses or

subjects that they teach and the time and place for

teaching, etc.

Driver Employee because not having any interest in the business

and not participating in the management thereof do not

constitute a lessor-lessee relationship

In the lease of chattels, lessor must lose complete controlover the chattel leased; however, in case of drivers, the

lessor exercises supervision and control of the drivers

Piece-Rate Workers Supervision is still actively manifested in all these acts

tailors, seamsters, sewers, etc.

Street-hired

Cargadores

Employee since the work is directly related, necessary and

vital to the operations of the company; there is power of

dismissal

Film crew Employee of the movie company

Mere fact that an entity is a labor union or an unregistered association doesnot mean that it cannot be considered as employer of the persons who

work for it

Job Contracting or Independent Contractorshipo Contractor = self-employed or an employer of otherso This is possible if it is considered as a bona fide job contractor or valid

job contracting as opposed to labor-only contracting

o In valid job contracting, the employer-employee relationship existsbetween the contractor and the people it hire

o In labor-only contracting, the employer-employee relationship existsbetween the workers it send out and the enterprise that receives them

Kinds of Employment Conditions:1. Statutory = provided for by law2. Voluntary = initiated by employer unilaterally or by contractual

stipulation provided that it should not be contrary to law, morals, good

customs, public order or public policy

Employees that are not covered by the law on conditions of employment:a. Government employees covered by Civil Service rulesb. Managerial employees, including other officers or members of

managerial staff non-applicability of overtime law (8-hour labor law)

c. Field personnel -- non-applicability of overtime law (8-hour labor law)d. Employers family members who depend on him for supporte. Domestic helpersf. Persons in the personal service of another

g. Workers who are paid by results as determined under DOLE regulations paid not by virtue of the time spent in working

Art. 83. Normal hours of work.

The normal hours of work of 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%) of their

regular wage for work on the sixth day. For purposes of this Article, "health personnel"

shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, socialworkers, laboratory technicians, paramedical technicians, psychologists, midwives,

attendants and all other hospital or clinic personnel.

Purposes:a. to safeguard the health and welfare of the employeeb. to minimize unemployment

What is regulated is working for more than 8 hourso However, a workshift that exceeds 8 hours with corresponding overtime

pay is valid and binding

Part-time work is allowed and it is common in restaurants, schools orfactories

o Wage and benefits of a part-timer are in proportion to the number ofhours worked

Work hours of health personnel is covered under Art. 83[2]o It also includes medical secretarieso Training programs between the physician and the hospital are duly

accredited or approved by the appropriate government agency and is

not covered under the 8-hour labor work

Art. 84. Hours worked.

Hours worked shall include (a) all time during which an employee is required to be on

duty or to be at a prescribed workplace; and (b) all time during which an employee is

suffered or permitted to work.

Rest periods of short duration during working hours shall be counted as hours worked.

Principles in Determining Hours Worked:1. All hours are hours worked regardless of whether or not such hours are

spent in productive labor or involve physical or mental exertion

2. An employees rest period shall be counted when he stops working; hemay rest completely and may leave his workplace to go elsewhere,whether within or outside the premises of his workplace


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3. If work performed was necessary, or it benefited the employer, oremployee could not abandon his work at the end of his normal working

hours because he had no replacement, all time spent for such work

shall be considered as hours worked, if work was with the knowledge of

his employer or immediate supervisor

4. Time during which an employee is inactive by reason of interruptionsbeyond his control shall be considered time

Preliminary and postliminary activities are deemed performed duringworking hours

Waiting time spent by an employee shall be considered as working time ifwaiting is considered an integral part of his work or if employee is required or

engaged by an employer to wait

Employee must be completely relieved from duty for purpose of eatingregular meals

o If the employee is not relieved to perform his duties, whether active orinactive, while eating, the work performed during that period shall not

be considered as rest period but overtime work

A worker sleeping may be working which will depend upon the express orimplied agreement of the parties or upon the nature of the service and its

relation to the working timeo Not considered as working time if there is an opportunity for

comparatively uninterrupted sleep under fairly desirable conditions,

even though the employee is required to remain on or near the

employers premises and must hold himself in readiness for a call to

action employment

On-Call = employee who is required to remain on call on the employerspremises or so close thereto that he cannot use the time effectively for his

own purposes

o For public health workers, on-call pay is equivalent to 50% of his or herregular wage

When an employee is kept within reach through a mobile phone or othercontact device, the employee is not considered to be in work status

Time spent walking, riding, or traveling to or from the place of work may ormay not constitute working time which depends on the kind of travel

involved

a. Travel from home to worko GR: not worktimeo Exception: when employee receives an emergency call outside of

his regular working hours and is required to travel to his regular

place of business or some other work site

b. Travel that is in all days work = all the time spent by an employee intravel as part of his principal activity is counted as hours worked

c. Travel away from home = travel that keeps an employee away fromhome overnight

o Considered worktime when it cuts across or coincides with theemployees workday or regular working hours

Attendance at lectures, meetings, training programs, and similar activitiesneed not be counted as working time if the following are met:

a. Attendance is outside employees regular working hoursb. Attendance is voluntaryc. Employee does not perform any productive work during such

attendance

Grievance meeting = GR is that it is part of hours worked Semestral break

o Regular full-time monthly paid teachers in a private school are entitledto salary and emergency cost-of-living allowance during semestral

breaks

Doubts as to hours worked:o When an employer alleges that his employee works less than the normal

hours of employment as provided for in the law, he bears the burden of

proving his allegation with clear and satisfactory evidence

Art. 85. Meal periods.

Subject to such regulations as the Secretary of Labor may prescribe, it shall be the

duty of every employer to give his employees not less than sixty (60) minutes time-off

for their regular meals.

Meal time is not compensable except in cases wherea. such is predominantly spent for employers benefitb. it is less than 60 minutes

Where work is continuous for several shifts, meal time breaks should becounted as working time for purposes of overtime compensation

When meal time is less than 60 minutes, it is compensable but in no caseshall it be less than 20 minutes

o If it is less than 20 minutes, it is considered as working timeo Situations where the meal break may be shortened to less than 60

minutes with full pay are the following:

a. Work is non-manual or does not involve serious physical exertionb. Establishment regularly operates not less than 16 hours a dayc. There is actual or impeding emergencies or there is urgent work to

be performed on machineries, equipment or installation to avoid

serious loss which the employer would otherwise suffer

d. Work is necessary to prevent serious loss of perishable goodso Exception: when the employees themselves request that their meal

period be shortened, it is not compensable


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a. Employees voluntarily agree in writing to a shortened meal periodof 30 minutes and are willing to waive the overtime pay for such

shortened meal period

b. There be no diminution whatsoever in the salary and other fringebenefits existing before the effectivity of the shortened meal period

c. Work does not involve strenuous physical exertion and they areprovided with adequate coffee breaks in the morning and

afternoond. Value of the benefits derived by such proposal is equal to or

commensurate with the compensation due them

e. Overtime pay will become due and demandable if ever they arepermitted or made to work beyond the stipulated end of the

regular working time

f. Effectivity shall be of temporary duration as determined bySecretary of Labor and Employment

o Changing shortened lunch break from paid to unpaid is allowed if itapplies to all employees and it fully complies with the 8-hour labor work

Art. 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 10:00 in the

evening and 6:00 in the morning.

The night-shift differential is not waivable since it is founded on public policy Burden of proof of payment rests upon the party who will suffer if no

evidence at all is presented by either party

Art. 87. Overtime work.

Work may be performed beyond eight (8) hours a day provided that the employee is

paid for the overtime work, an additional compensation equivalent to his regular

wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight

hours on a holiday or rest day shall be paid an additional compensation equivalent tothe rate of the first eight hours on a holiday or rest day plus at least thirty percent

(30%) thereof.

Overtime compensation = additional pay for service or work rendered orperformed in excess of 8 hours a day by employees covered by the 8-hour

labor law

o Overtime hourly rate X # of hours worked in excess of 8 hourso Overtime hourly rate = 30% of the rate of the 1 st 8 hours

Receipt of overtime pay will not preclude the right to night differential paysince the latter is payment for work done during the night while the former is

payment for the excess of the regular 8-hour work

Regular Base Pay = regular basic pay excluding money received in differentconcepts such as Christmas bonus and other fringe benefits

o Premium pay for work performed on rest days, special days or regularholidays is included as part of the regular rate in the computation of

overtime pay for work rendered on said days; however, parties may

stipulate otherwise in a collective agreement

Conversion of Monthly to Daily RateMonthly salary X 12 = Basic daily rate

No. of actual working days

Basic daily rate = Basic hourly rate

8

o The above is a better formula but using 365 days as a divisor is alsoallowed if it has been the practice of the company

Work day = the 24-hour period which commences from the time theemployee regularly starts to work

o Work in excess of 8 hours within a work day is considered as overtimeregardless of whether this is performed in a work shift other than at

which the employee regularly works

Express instruction of employer to the employee to render overtime work isnot required for the employee to be entitled to overtime pay

o It is sufficient that employee is permitted or suffered to worko However, a claim for overtime pay will not be granted for want of

factual and legal basis

Principles of estoppel and laches cannot be invoked against employees inan action for the recovery of compensation for past overtime work

o Overtime pay in arrears retroacts to the date when services wereactually rendered

Right to overtime pay cannot be waivedo Any stipulation in the contract that laborers shall work beyond the

regular 8 hours without additional compensation for the extra hours is

contrary to law and is null and void

o Exceptions:1. In consideration of other benefits

when waiver is made in consideration of benefits and privilegeswhich may be more than what will accrue to them in overtime

pay

2. Compressed work week arrangement (CWWA) Number of work days is reduced but the number of work hours

in a day is increased to more than 8, but no overtime pay may

be claimed

This is only valid when the following conditions are compliedwith:


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a. The scheme is expressly and voluntarily supported bymajority of employees affected

b. In firms using substances, or operating in conditions thatare hazardous to health, a certification is needed that

working beyond 8 hours is within the limits or levels of

exposure set out by DOLE

c. DOLE regional office is duly notified Effects of the adoption of this arrangement:

a. Work beyond 8 hours will not be compensable by overtimepremium provided that the work hours per day shall not

exceed 12 hours, otherwise, the excess shall be

compensable

b. Employees are entitled to a meal period of not less than 60minutes

c. In no case result in the diminution of existing benefitso Reversion to the normal 8-hour workday shall not

constitute a diminution of benefits but rather a

legitimate exercise of management prerogative

provided that prior notice within reasonable time was

given to the employees affected

Overtime pay integrated in basic salary is allowed especially to managerialemployees

Flexible work arrangements (FWA)a. Reduction of workdays which should not last for more than 6 months

(temporary)

b. Rotation of workersc. Forced leaved. Broken-time schedule where work schedule is not continuous but the

number of work hours within a day or week is not reduced

e. Flexi-holiday schedule

Art. 88. Undertime not offset by overtime.

Undertime work on any particular day shall not be offset by overtime work on any

other day. Permission given to the employee to go on leave on some other day of the

week shall not exempt the employer from paying the additional compensation

required in this Chapter.

Offsetting of undertime work by overtime work, whether on the same or onanother day, is prohibited by jurisprudence and by statute

Art. 89. Emergency overtime work.

Any employee may be required by the employer to perform overtime work in any ofthe following cases:

a. When the country is at war or when any other national or local emergency hasbeen declared by the National Assembly or the Chief Executive;

b. When it is necessary to prevent loss of life or property or in case of imminentdanger to public safety due to an actual or impending emergency in the

locality caused by serious accidents, fire, flood, typhoon, earthquake,

epidemic, or other disaster or calamity;

c. When there is urgent work to be performed on machines, installations, orequipment, in order to avoid serious loss or damage to the employer or someother cause of similar nature;

d. When the work is necessary to prevent loss or damage to perishable goods;and

e. Where the completion or continuation of the work started before the eighthhour is necessary to prevent serious obstruction or prejudice to the business or

operations of the employer.

Any employee required to render overtime work under this Article shall be paid the

additional compensation required in this Chapter.

In addition to the above, compulsory overtime work is authorized also whenit is necessary to avail of favorable weather or environmental conditions

where performance or quality of work is dependent thereon

Art. 90. Computation of additional compensation.

For purposes of computing overtime and other additional remuneration as required

by this Chapter, the "regular wage" of an employee shall include the cash wage only,

without deduction on account of facilities provided by the employer.

Cash wage = excludes non-cash value of facilities Wage = includes the value of facilities

o Hence, regular wage must therefor include the value of facilities

WEEKLY REST PERIODS

Art. 91. Right to weekly rest day.

a. It shall be the duty of every employer, whether operating for profit or not, toprovide 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 hisemployees subject to collective bargaining agreement and to such rules and

regulations as the Secretary of Labor and Employment may provide. However,

the employer shall respect the preference of employees as to their weekly rest

day when such preference is based on religious grounds.


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Art. 92. When employer may require work on a rest day.

The employer may require his employees to work on any day:

a. In case of actual or impending emergencies caused by serious accident, fire,flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent

loss of life and property, or imminent danger to public safety;

b. In cases of urgent work to be performed on the machinery, equipment, orinstallation, to avoid serious loss which the employer would otherwise suffer;

c. In the event of abnormal pressure of work due to special circumstances,where the employer cannot ordinarily be expected to resort to 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 asdetermined by the Secretary of Labor and Employment.

Art. 93. Compensation for rest day, Sunday or holiday work.

a. Where employee is made or permitted to work on his scheduled rest day, heshall be paid an additional compensation of at least thirty percent (30%) of his

regular wage. An employee shall be entitled to such additional compensation

for work performed on Sunday only when it is his established rest day

b. When the nature of the work of the employee is such that he has no regularworkdays and no regular rest days can be scheduled, he shall be paid an

additional compensation of at least thirty percent (30%) of his regular wage for

work performed on Sundays and holidays.

c. Work performed on any special holiday shall be paid an additionalcompensation of at least thirty percent (30%) of the regular wage of the

employee. Where such holiday work falls on the employees scheduled restday, he shall be entitled to an additional compensation of at least fifty per

cent (50%) of his regular wage.

d. Where the collective bargaining agreement or other applicable employmentcontract stipulates the payment of a higher premium pay than that prescribed

under this Article, the employer shall pay such higher rate.

Work done on rest days and special holidayso Employer must pay the employee his

a. Regular remuneration or 100%b. Additional sum of at least 30% of the regular remuneration =

premium pay

Special non-working days = only 30% of the regular remuneration and notthe 130% as provided for a legal holiday

a. August 21 = Ninoy Aquino Dayb. November 1 = All Saints Dayc. December 31

CHAPTER IIIHOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

Art. 94. Right to holiday pay.

a. Every worker shall be paid his regular daily wage during regular holidays, exceptin retail and service establishments regularly employing less than ten (10) workers;

b. The employer may require an employee to work on any holiday but suchemployee shall be paid a compensation equivalent to twice his regular rate; and

c. As used in this Article, "holiday" includes: New Years Day, Maundy Thursday,Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of

July, the thirtieth of November, the twenty-fifth and thirtieth of December and

the day designated by law for holding a general election.

12 Regular or Legal Holidaysa. New Years Day g. National Heroes Dayb. Maundy Thursday h. Bonifacio Dayc. Good Friday i. Christmas Dayd. Araw ng Kagitingan j. Rizal Daye. Labor Day k. Eidl Fitrf. Independence Day l. Eidl Adha

Conditions to be able to receive holiday pay:a.

Employee should not have been absent without pay on the working daypreceding the regular holiday

b. For Successive Regular Holidays1. Not paid for both if employee absents himself from work on the day

immediately preceding the first holiday

2. Paid for the second holiday only, even if he absents himself from workon the day immediately preceding, if he works on the first holiday

Holiday Pay of a Part-Timer shall be based on the following, whichever yieldsthe highest amount:

a. Regular wage per dayb. Basic wage on the

1. Working day preceding the regular holiday if he is present


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2. Last working day immediately prior to the regular holiday if he is onleave with pay on such day

c. Average of his basic wages for the last 7 working days for employees whoare paid by results

d. Basic wage on the particular holiday if worked Muslim Holidays:

a. New Year 1st day of the lunar month of Muharramb. Birthday of the Prophet Muhammad 12th day of the 3rd lunar month of

Rabi-ul-Awwal

c. Nocturnal Journey and Ascension of the Prophet of Mohammad 27thday of the 7th lunar month of Rajab

d. Hari Raja Pausa 1st day of the 10th lunar month of Shawwalcommemorating the end of the fasting season

e. Hari Raja Haji 10th day of the 12th lunar month of Dhul-Hijja All corporations within the Muslim provinces must observe the above Muslim

Holidays and both Muslim and Christian workers in those areas may not report

for work on those days and still be paid their regular rate

o Muslim employees working outside of the Muslim provinces may beexcused from reporting for work during the observance of the MuslimHolidays without diminution of salary or wages during the period

Emergency Cost-of-living Allowance (ECOLA) on a Regular Holidayo An employee is entitled to the ECOLA if he/she is paid his basic pay during

regular holiday, regardless of whether or not work is performed

Art. 95. Right to service incentive leave.

a. Every employee who has rendered at least one year of service shall be entitledto a yearly service incentive leave of five days with pay.

b. This provision shall not apply to those who are already enjoying the benefit hereinprovided, those enjoying vacation leave with pay of at least five days and those

employed in establishments regularly employing less than ten employees or in

establishments exempted from granting this benefit by the Secretary of Labor

and Employment after considering the viability or financial condition of such

establishment.

c. The grant of benefit in excess of that provided herein shall not be made asubject of arbitration or any court or administrative action.

Yearly service incentive leave of 5 days with pay; mandatoryo Exceptions:

a. Any establishments regularly employing less than 10b. Those already enjoying the benefitc.

Field personnel if unsupervised

d. Establishment exempted by DOLE

e. Those enjoying vacation leave of at least 15 days Who are entitled:

1. Employee has rendered at least 1 year of service2. Part-time employees3. Contract workers

at least 1 year of serviceo Service within 12 months, continuous or broken, reckoned from the date

the employee started working

Commutation of Service Incentive Leaveo Commutable to its money equivalent if not used or exhausted at the end

of the year (IRR)

Basis of Conversion = salary rate at the date of commutationo Example: an employee worked for 1 year and 2 months

Months worked in excess of 1 year x 5 days

12 months

Sick leave and Vacation leave as Voluntary benefitso Voluntaryo Non-contributory in nature the employees contribute nothing to the

operation of the benefits

o Intended to alleviate the economic condition of workerso Commutation is also voluntary

Paternity Leave (RA 8187)o Conditions:

a. Married male employee at the time of delivery of his childb. Cohabiting with his legitimate spouse at the time she gives birth or

suffers a miscarriage

c. Has applied for paternity leave within reasonable period of time fromthe expected date of delivery by the pregnant spouse

d. The above (c) is not applicable in case of miscarriageso Shall not exceed 7 days for each delivery and is entitled to his full pay for

those days

o Total of 4 deliveries, miscarriages or abortionso There is no commutation of unused paternity leave

Maternity Leave is provided for in Art. 133 Parental (Solo Parent) Leave

o Not more than 7 working days every yearo Granted to any solo parent employee who has rendered service of at

least 1 year


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o Not commutableo Conditions:

a. Has rendered at least 1 year of service whether continuous or brokenat the time of effectivity of RA 8792 (year 2000)

b. Has notified the employer of the availment thereof within areasonable period of time

c. Has presented a Solo Parent Identification Card to employerd. Children must be living with and dependent upon the solo parent

Art. 96. Service charges.

All service charges collected by hotels, restaurants and similar establishments shall be

distributed at the rate of eighty-five percent (85%) for all covered employees and

fifteen percent (15%) for management. The share of the employees shall be equally

distributed among them. In case the service charge is abolished, the share of the

covered employees shall be considered integrated in their wages.

Coverage:a. Applies only to establishments collective service charges including those

entities operating primarily as private subsidiaries of government

b. Applies to all employees regardless of their positions, designations oremployment status except managerial employees

Distribution:o 85% to employeeso 15% retained by managemento paid not less than once every 2 weeks

If Collection of Service Charge is Abolishedo The share of employees shall be considered integrated in their wageso Basis average monthly salary for the past 12 months immediately

preceding the abolition

The same rules apply to TIPSo Tip pocketing is a serious offense of dishonesty

TITLE II WAGES

Art. 97. Definitions. As used in this Title:

a. "Person" means an individual, partnership, association, corporation, business trust,legal representatives, or any organized group of persons.

b. "Employer" includes any person acting directly or indirectly in the interest of anemployer in relation to an employee and shall include the government and all its

branches, subdivisions and instrumentalities, all government-owned or controlled

corporations and institutions, as well as non-profit private institutions, or

organizations.

c. "Employee" includes any individual employed by an employer.d. "Agriculture" includes farming in all its branches and, among other things,

includes cultivation and tillage of soil, dairying, the production, cultivation,

growing and harvesting of any agricultural and horticultural commodities, the

raising of livestock or poultry, and any practices performed by a farmer on a

farm as an incident to or in conjunction with such farming operations, but does

not include the manufacturing or processing of sugar, coconuts, abaca,

tobacco, pineapples or other farm products.

e. "Employ" includes to suffer or permit to work.f. "Wage" paid to any employee shall mean the remuneration or earnings, however

designated, capable of being expressed in terms of money, whether fixed or

ascertained on a time, task, piece, or commission basis, or other method of

calculating the same, which is payable by an employer to an employee under a

written or unwritten contract of employment for work done or to be done, or for

services rendered or to be rendered and includes the fair and reasonable value,

as determined by the Secretary of Labor and Employment, of board, lodging, or

other facilities customarily furnished by the employer to the employee. "Fair and

reasonable value" shall not include any profit to the employer, or to any person

affiliated with the employer.

Wage v. SalaryWage Salary

Compensation for manual labor, skilled

or unskilled, paid at stated time and

measured by the day, week, month or

season

Denotes a higher degree of

employment or a superior grade of

services and implies a position or office

What are included in wage or salary?a. Sales commissionb. Facilities or Commodities

1. Meals and snacks = employer may deduct from the wages not morethan 70% of the value of the meals and snacks enjoyed by the

employees provided that such deduction is authorized in writing by

the employee2. Lodging facility = value determined at the cost of operation and

maintenance including adequate depreciation plus reasonable

allowance

c. Those given as part of wage through company practice Facilities v. Supplements

Facilities Supplements

Include articles or services for 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 employer or necessary to the

conduct of employers business

Constitute extra remuneration or special

privileges or benefits given to or

received by the laborers over and

above their ordinary earnings or wages

Wage deductible Not wage deductible


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Requirements for deducting Value of Facilities1. Proof must be shown that such facilities are customarily furnished by trade2. Provision of deductible facilities must be voluntarily accepted in writing by

the employee

3. Facilities must be charged at fair and reasonable value4. Given for the benefit of the employee

Salary excludes allowances

Gratuity = something given freely or without recompense Fair Days Wage for Fair Days Labor

o GR: If there is no work performed by the employee, there can be nowage or pay

o Exception: Laborer was able, willing and ready to work but was preventedby management or was illegally locked out, suspended or dismissed

Equal Pay for Equal Worko Employees working in the Philippines, if performing similar functions and

responsibilities under similar working conditions, are paid equally

Agricultural Worko Work on the soil and its harvests

When the harvests are processed into finished product or transformedinto another product, that processing work is industrial

o It is the nature of the work which classifies a worker as one falling underagricultural laborers

Art. 98. Application of Title.

This Title shall not apply to

a. Farm tenancy or leaseholdb. Domestic service c. Persons working in their respective homes in

1. Needlework, or2. Any cottage industry duly registered in accordance with law

CHAPTER II MINIMUM WAGE RATES

Art. 99. Regional minimum wages.

The minimum wage rates for agricultural and non-agricultural employees and workers

in each and every region of the country shall be those prescribed by the Regional

Tripartite Wages and Productivity Boards.

Statutory Minimum Wage = lowest wage rate fixed by law that an employercan pay his workers

o Compensation less than such is considered underpayment that violatesthe law

As of June 2012o Minimum Wage for NCR (Non-Agriculture) = P446.00o Minimum Wage NCR (Agriculture, Plantation or Non-Plantation) = P409.00o Another P10 COLA to be given on 1 November 2012

Rationale for Minimum Wagea. Reduce the evils of the sweating system = exploiting of workers at

wages so low as to be insufficient to meet the bare cost of livingb. Fair and just wage = where the minimum imply not only the actual

minimum but some margin or leeway to take care of contingencies

c. Raises the standard of competition among employersd. Prerequisite to the adoption of needed social security program = where it

requires contributions from employees themselves

Acceptance by an employee of wages paid him without objection does notgive rise to estoppel precluding him from suing for the difference between the

amount received and the amount he should have received

Exceptions to the Rule on Minimum Wage:a. Household or domestic helpers, including family drivers and persons in the

personal service of anotherb. Homeworkers engaged in needle-workc. Workers employed in any establishment duly registered with National

Cottage Industries

d. Workers in any duly registered cooperative when so recommended bythe Bureau of Cooperative Development and upon approval of Secretary

of DOLE

e. Workers in a Barangay Micro Business Enterprises (BMBE)o However, employees of such must still be entitled to the same

benefits given to any regular employee such as social security and

health care benefits

oBMBE has a total assets not more than P3M and which is comprised ofno less than 90% Philippine employers

f. Employees of Retail/Service establishments regularly employing not morethan 10 workers upon application with and determined by the

appropriate Regional Board

g. Wage Orders issued by the wage boardsh. Farm tenancy or leaseholds

Art. 100. Prohibition against elimination or diminution of benefits.

Nothing in this Book shall be construed to eliminate or in any way diminish

supplements, or other employee benefits being enjoyed at the time of promulgation

of this Code.


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Requisites for Rule against Diminution of Benefits to apply:a. Grant of benefit is founded on a policy or has ripened into a practice over

a long period

b. Practice is consistent and deliberatec. Practice is not due to error in the construction or application of a doubtful

or difficult question of law

d. Diminution or discontinuance is done unilaterally by the employer Examples where company practice or policy in relation to grant of benefits

cannot be peremptorily withdrawn:

a. Employer approved commutation to cash of unused portion of sick leavefor 3 years and 9 months

b. Fixed monthly emergency allowance for 3 years and 4 monthsc. Inclusion of unused sick leave and vacation leave in the computation of

13-month pay for at least 2 years

d. Payment of allowance for foode. Employees have a vested and demandable right over existing benefits

voluntarily granted to them by their employer

Exceptions to the Non-Diminution Rule:a. Correction of error

o A past error being corrected does not give rise to a vested rightb. Negotiated benefits

o A bilateral contract where it can be eliminated or diminishedbilaterally

c. Wage order complianced. Benefits on reimbursement basis

o Per diem = daily allowance given for each day when an officer oremployee is away from his home base

e. Reclassification of position or Promotion done in good faithf. Contingent benefits or conditional bonus

o Bonus = amount granted and paid to an employee for his industryand loyalty which contributed to the success of employers business

and made possible the realization of profits

GR: not a demandable and enforceable obligation Exception: it is made part of the wage or salary or compensation

o For a bonus to be enforceable it must have beena. Promised by the employer without conditionsb. Expressly agreed by the partiesc. Had a fixed amountd. Had been long and regular practice on the part of e

Documents

Labor I Midterms Reviewer