Memoire Labor Law

Juris DiscipulusLabor Law I

GENERAL PRINCIPLES

Historical Perspective

People v. Pomar, GR No. L-22008, 11.3.94

Defendant’s main argument is that by Sec. 13 & 15 of Act No. 3071, he is deprived of his liberty to contract, which the constitution of the Philippine Islands guarantees to every citizen his liberty and one of his liberties is the liberty to contract.

Held: said section creates a term or condition in every contract made by every person, firm, or corporation with any woman who may, during the course of her employment, become pregnant, and a failure to include in said contract the terms fixed to a fine and imprisonment. Clearly, therefore, the law has deprived, every person, firm, or corporation owning or managing a factory, shop or place of labor of any description within the Philippine Islands, of his right to enter into contracts of employment upon such terms as he and the employee may agree upon. The law creates a term in every such contract, without the consent of the parties.

As civilization develops and public conscience becomes awakened, the police power may be extended, as has been demonstrated in the growth of public sentiment with reference to the manufacture and sale of intoxicating liquors. But that power cannot grow faster than the fundamental law of the state, nor transcend or violate the express inhibition of the people's law — the constitution. If the people desire to have the police power extended and applied to conditions and things prohibited by the organic law, they must first amend that law.

WEST COAST HOTEL CO. V. PARRISH, 300 US 379 (1937)

x x x The basis that a state set minimum wage violates the "liberty of contract´ constructed by the Fifth Amendment of the U.S. Constitution as applied by the Fourteenth Amendment.

Held: regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This limitation of liberty in particular governs the ‘freedom of contract.´ There is

no absolute freedom to do as one wills or to contract as one chooses, because liberty implies the absence of arbitrary restraint, not immunity from reasonable regulation imposed in the interests of the community. This allows for state intervention when the state holds a particular interest of protection; especially when the parties to a contact ‘do not stand one quality,´ such as in an employer/employee relationship.

ACCFA v. CUGCO, GR No L-21484/L23605, 11.69

The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a government agency created under Republic Act No. 821. Reorganized to Agricultural Credit Administration. Pendente lite, CUGCO petitioned in the CIR to recognize it as the official Union. Denied, ACCFA argues that because of the reorganization, their function became governmental and not proprietary anymore, therefore they no longer need to deal privately w/ said unions.

Held: The Unions have no bargaining rights with ACA. EO 75 placed ACA under the LRPA and by virtue of RA 3844 the implementation of the Land Reform Program of the government is a governmental function NOT a proprietary function - Section 11 of Republic Act No. 875

Concurring Opinion of Justice Fernando: The opinion of Justice Makalintal contains this footnote: "It must be stated, however, that we do not here decide the question — not at issue in this case — of whether or not a labor organization composed employees discharging governmental functions, which is allowed under the legal provision just quoted, provided such organization does not impose the obligation to strike or to join in strike, may petition for a certification election and compel the employer to bargain collectively with it for purposes other than to secure changes or conditions in the terms and conditions of employment."

Bengzon v. Drilon, GR No. 103524, 4.15.92

Deprivation of pension to Justices due to them.

Held: For as long as these retired Justices are entitled under laws which continue to be effective, the

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government cannot deprive them of their vested right to the payment of their pensions.

"Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it."

CONSTITUTIONAL BASIS – 1987 CONSTITUTION

Art. II, Section 10. The State shall promote social justice in all phases of national development.

Art. II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Art. XIII, Section 3. (LABOR) The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

Social legislation – include laws that provide particular kinds of protection or benefits to society or segments thereof infurtherance of social justice.

Labor Legislation – consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for employment standards and a legal framework for negotiating, adjusting and administering those standards and other incidents of employment.

Calalang v. Williams, GR No. 47800, 12.02.40

The petitioner avers that the rules and regulations complained of (Road Schedule arrangements of C.A. 548) infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people.

Held: The promotion of social justice, however, is to be achieved not through a mistaken sympathy towards any given group. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.

1. x x x It bears repeating that even granting that petitioners might have had the right to dismiss Tobias from work, the abusive manner in which that right was exercised amounted to



a legal wrong for which petitioners must now be held liable. – Mackay v. NLRC, GR No. 81262

2. It must be underscored that no less than our Constitution looks with compassion on the workingman and protects his rights not only under a general statement of a state policy, but under the Article on Social Justice and Human Rights, thus placing labor contracts on a higher plane and with greater safeguards. Verily, relations between capital and labor are not merely contractual. They are impressed with public interest and labor contracts must, perforce, yield to the common good. – Brew Master v. NAFLU, GR No. 119243, 4.17.97

3. x x x We agree with the conclusion of the Labor Arbiter that the termination of the services of petitioners was illegal as there was no valid retrenchment. x x x This Court firmly holds that measures should be strictly implemented to ensure that such constitutional mandate on protection to labor is not rendered meaningless by an erroneous interpretation of applicable laws. – Fuentes v. NLRC, GR No. 110017, 1.2.97

4. x x x The cause of social justice is not served by upholding the interest of petitioners in disregard of the right of private respondents. Social justice ceases to be an effective instrument for the "equalization of the social and economic forces" by the State when it is used to shield wrongdoing. – Jamer v. NLRC, GR No. 112630, 9.5.05

HUMAN RESOURCES & MANPOWER DEVELOPMENT

Government Machinery

The National Manpower and Youth Council (NMYC) has been replaced by Technical Education and Skills Development Authority (TESDA) created under R.A. No. 7796 or the TESDA Act of 1994.

RA 7796 TESDA Act of 1994 - STATEMENT OF GOALS AND OBJECTIVES

1. To attain international competitiveness;

2. To meet demands for quality middle-level manpower;

3. To disseminate scientific and technical knowledge base;

4. To recognize and encourage the complementary roles of public and private institutions; and

5. To inculcate desirable values.

(Art. 43-56 of the Labor Code, as superseded by TESDA Act)

Apprenticeship and Learnership (Labor Code)

Types of Special Workers:

1. Apprentice2. Learner3. Handicapped

Art. 57 – Statement of Objectives for the training and employment of special workers.

1. To help meet the demand of the economy for trained manpower;

2. To establish a national apprenticeship program; and

3. To establish apprenticeship standards for the protection of apprentices.

Art. 58 – Definition of Terms

APPRENTICESHIP - practical training on the job supplemented by related theoretical instruction, for a highly skilled or technical occupation for a period of not less than three (3) months but not more than six (6) months.

APPRENTICE - a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter, with an apprenticeship program duly approved by theDOLE.

APPRENTICEABLE OCCUPATION - any trade, form of employment or occupation which requires more than 3 months of practical training on the job supplemented by related theoretical instruction.

APPRENTICESHIP AGREEMENT – an employment contract wherein the employer binds himself to train



the apprentice and the apprentice in turn accepts the terms of training.

ON-THE-JOB TRAINING - practical work experience through actual participation in productive activities given to or acquired by an apprentice.

HIGHLY TECHNICAL INDUSTRIES - a trade, business, enterprise, industry or other activity, which is engaged in the application of advanced technology.

Art. 59 – Qualification of Apprentices.

1. At least 15 years of age (as amended by R.A. 7610), provided that if below 18 years, he shall not be eligible for hazardous occupation;

2. Possess vocational aptitude and capacity for appropriate tests;

3. Possess the ability to comprehend and follow oral and written instructions; and

4. The company must have an apprenticeship program duly approved by the DOLE.

NOTE: Trade and industry associations may recommend to the Secretary of Labor appropriate educational qualifications for apprentices in certain occupations which, if approved, shall be the educational requirements for apprenticeship in such occupations, unless waived by an employer in favor of an applicant who has demonstrated exceptional ability.

Art. 60 – Employment of Apprentices

QUALIFICATIONS TO BE MET BY EMPLOYER

1. Only employers in highly technical industries may employ apprentices; and

2. Only in apprenticeable occupations as determined by the Secretary of Labor.

REQUISITES FOR A VALID APPRENTICESHIP

1. Qualifications of apprentice are met; 2. Apprentice earns not less than 75% of the

prescribed minimum salary;3. Apprenticeship agreement duly executed and

signed;4. Apprenticeship program must be approved by

the Secretary of Labor; otherwise, the

apprentice shall be deemed a regular employee (Nitto Enterprises v. NLRC, GR No. 114337, September 29, 1995); and

5. Period of apprenticeship shall not exceed six (6) months (Sec. 19, Rule VI, Book II, Rules Implementing the Labor Code).

NOTE: At the termination of the apprenticeship, the employer is not required to continue the employment.

Art. 61 – Contents of Apprenticeship Agreement

1. Full name and address of the contracting parties;

2. Date of birth of the apprentice;3. Name of trade, occupation or job in which the

apprentice shall be trained and the dates on which such training will begin and will proximately end;

4. Approximate number of hours of on-the-job training with compulsory theoretical instructions which the apprentice shall undergo during his training;

5. Schedule of the work processes of the trade/occupation in which the apprentice shall be trained and the approximate time to be spenton the job in each process;

6. Graduated scale of wages to be paid to the apprentice;

7. Probationary period of the apprentice during which either party may summarily terminate their agreement; and

8. A clause that if the employer is unable to fulfill his training obligation, he may transfer the agreement, with the consent of the apprentice, to any other employer who is willing to assume such obligation (Sec. 18, Rule VI, Book II, Rules Implementing the Labor Code).

Art. 62 – Who signs the agreement: Apprentice, if minor, his parent or DOLE representative

Art. 63 – Venue of Apprenticeship: Sponsor; DOLE training Center; Others, given the participation of the firm

Art. 64 – Sponsoring of Apprenticeship ProgramPage 4 of 20

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1. The plant, shop or premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm;

2. The premises of one or several firms designated for the purpose by the organizer of the program i f such organizer is an association of employers, civic group and the like; and

3. DOLE Training Center or other public training institutions with which the TESDA

Art. 65-67 – Violation of Apprenticeship Agreement

INVESTIGATION OF VIOLATION OF APPRENTICESHIP AGREEMENT (Art. 65)

1. Either party to an agreement may terminate the same after the probationary period only for a valid cause.

2. Action may be initiated upon complaint of any interested person or upon DOLE’s own initiative.

APPEAL (Art. 66)

The decision of an authorized agency of the Department of Labor may be appealed to the Secretary of Labor, within 5 days from receipt of the adverse decision.

The decision of the Secretary of Labor shall be final and executory.

EXHAUSTION OF ADMINISTRATIVE REMEDIES (Art. 67)

1. The exhaustion of administrative remedies is a condition precedent to the institution of action.

2. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements (Sec. 32b, Rule VI , Book II , Rules Implementing the Labor Code).

Art. 70 – Voluntary Organization of Apprenticeship Programs

GENERAL RULE: The organization of apprenticeship program shall be primarily a voluntary undertaking of employers.

EXCEPTION: Instances when organization of program is compulsory:

1. When national security or particular requirements of economic development so demand; and

2. Where services of foreign technicians are utilized by private companies in apprenticeable trades.

Art. 71 – Deductibility of Training Costs

An additional deduction from taxable income of 1/2 of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices are granted to the person or enterprise organizing an apprenticeship program.

REQUISITES

1. Apprenticeship program must be duly recognized by the Department of Labor;

2. Deduction shall not exceed 10% of direct labor wage; and

3. Employer must pay his apprentices the minimum wage.

Art. 72 – Apprentice w/o Compensation

Apprentice may be hired w/o compensation where on-the-job training is:

1. Required by the school;2. Required by the training program Curriculum;3. A requisite for graduation; or4. A requisite for board examination.

Note:

1. There is no EER between students on one hand, and schools, colleges or universities on the other hand, where there is agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities, including such facilities as may be reasonable



and necessary to finish their chosen courses under such agreement (Sec. 14, Rule X, Book III, Implementing Rules).

2. Under this Article, the student is not considered an employee. But if he causes injury or damage to a third person, the school may be held liable under Art. 2180 of the Civil Code (Filamer Christian Institute v. IAC, GR No. 75112, August 17, 1992).

LEARNERS

Art. 73 – Learners Defined

LEARNERS - persons hired as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed 3 months.

LEARNERSHIP AGREEMENT -employment and training contract entered into between the employer and the learner.

NOTE: On-the-job or practical training of a learner need not be supplemented by theoretical instruction (Sec. 1[a], Rule VII, Book II, Rules Implementing the Labor Code).

Art. 74 – Learners may be hired.

1. No experienced workers are available;2. The employment of learners being necessary

to prevent curtailment of employment opportunities; and

3. The employment will neither create unfair competition in terms of labor costs nor impair working standards.

Art. 75 – Learnership Agreement; Include

1. The names and addresses of the employer and the learner;

2. The occupation to be learned and the duration of the training period which shall not exceed three (3) months;

3. The wage of learner which shall be at least 75% of the applicable minimum wage; and

4. A commitment to employ the learner, if he so desires, as a regular employee upon completion of training.

NOTE: A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by the employer before the end of the stipulated period through no fault of the learner (Sec. 4, Rule VII, Book II, Rules Implementing the Labor Code).

Art. 76 – Learners in Piecework

Learners in piecework or incentive-rate jobs are to be paid in full for the work done during the training period.



BOOK II, RULES VI AND VII OF THE OMNIBUS IMPLEMENTING RULES OF THE LABOR CODE

(IRR of TESDA Act on Apprenticeship and Learnership)

DUAL TRAINING SYSTEMS ACT OF 1994RA 7686

The policy of the State to strengthen manpower education and training in the country so that the latter may be assured of an ever-growing supply of an educated and skilled manpower equipped with appropriate skills and desirable work habits and attitudes. The dual training system, as successfully tested in some highly developed countries, shall be adopted in duly accredited vocational and technical schools, in cooperation with accredited agricultural, industrial and business establishments, as one of the preferred means of creating a dependable pool of well-trained operators, craftsmen and technicians for the economy.

"Dual training system" refers to an instructional delivery system of technical and vocational education and training that combines in-plant training and in-school training based on a training plan collaboratively designed and implemented by an

accredited dual system educational institution/training center and accredited dual system agricultural, industrial and business establishments with prior notice and advice to the local government unit concerned. Under this system, said establishments and the educational institution share the responsibility of providing the trainee with the best possible job qualifications, the former essentially through practical training and the latter by securing an adequate level of specific, general and occupation-related theoretical instruction. The word "dual" refers to the two parties providing instruction: the concept "system" means that the two instructing parties do not operate independently of one another, but rather coordinate their efforts;

“Trainee" refers to a person qualified to undergo the dual training system for the purpose of acquiring and developing job qualifications;

"Accredited dual training system educational institution/training center" refers to a public or private institution duly recognized and authorized by the appropriate authority, in coordination with business and industry, to participate in the dual training system;

Sec.6 - Coverage. This Act shall apply to all public and private educational institutions/training centres and agricultural, industrial and business establishments duly accredited to participate in the dual training system.

Sec. 9 – Incentives for participating establishments. To encourage agricultural, industrial and business establishments to participate in the system, they shall be allowed to deduct from their taxable income the amount of fifty (50) per cent of the system expenses paid to the accredited dual training system educational institution for the establishment's trainees: provided that such expenses shall not exceed five (5) per cent of their total direct labor expenses but in no case to exceed twenty-five million pesos (P25,000,000) a year.

Sec. 10 Obligations of accredited agricultural, industrial and business establishments. The



agricultural, industrial and business establishments shall:

(a) ensure that the necessary abilities and knowledge for the trainee to achieve the purpose of his training are imparted to him and shall provide such training systematically in accordance with an approved training plan; x x x

(d) Allow the trainee to attend his in-school training and to sit for his examinations; x x x

(h) Pay to the accredited educational institution/training centre the daily allowance of the trainee; x x x

Sec. 11 –Obligations of the trainee. A trainee shall exert every effort to acquire the abilities and knowledge necessary for him to achieve the purpose of his training. Towards this end, he shall:

(a) Carefully perform the jobs entrusted to him as part of his training;

(b) Take part in training programmes for which he has been granted time off under this Act;

(c) Follow the instruction given to him as part of his training by the training officer or any other person entitled to give him such instructions;

(d) Observe rules of behavior in the training premises;

(e) Use tools, instruments, machines and other equipment with due care;

(f) Not reveal any business or trade secrets that have come to his knowledge in the course of his training; and

(g) Keep his record books up to date.

Sec. 14 –Signing of memorandum of agreements by the accredited dual training system agricultural, industrial and business establishments, the accredited dual training system, educational institution/training centre and the trainee. Before an individual establishment begins with an accredited education institution/training centre and the trainee or his representative, the individual establishment shall provide the accredited educational

institution/training centre and the trainee with a copy of the signed agreement.

The memorandum of agreement shall set forth, among others, the following:

(a) the training plan;

(b) the nature and objective of the training;

(c) the commencement and duration of the training period, including the total number of in-school and in-plant training hours;

(d) the normal daily training hours;

(e) the trainee's allowance and the rate to be applied, which in no case shall start below seventy-five (75) per cent of the applicable minimum daily wage for days spent in the establishments;

(f) the rights and obligations of the parties concerned in addition to those provided in Sections 10, 11 and 12;

(g) the definition of the status of the trainee according to Section 8 of this Act;

(h) the conditions for the termination of the training agreement;

(i) the performance, monitoring and evaluation system; and

(j) such other essential particulars as would mutually benefit all parties concerned.

Sect. 15 –Insurance coverage of the trainee. Every agricultural, industrial and business establishment undertaking training, in accordance with the provisions of this Act, shall sign a life and/or accident insurance policy on the life of the trainee with the insured and the spouse, children or parents of the trainee as the beneficiaries thereof: provided that the agricultural, industrial and business establishments shall pay for the premiums of said insurance policy.

Nitto Enterprises v. NLRC, GR No. 114337, 9.29.95

Nitto entered into an apprenticeship agreement w/ PR, w/o DOLE approval, when PR was found to be



careless, PR was asked to resign. PRs family then sued for illegal dismissal.

Held: the apprenticeship agreement between petitioner and private respondent was executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "core maker/molder." On the same date, an apprenticeship program was prepared by petitioner and submitted to the Department of Labor and Employment. However, the apprenticeship Agreement was filed only on June 7, 1990. Notwithstanding the absence of approval by the Department of Labor and Employment, the apprenticeship agreement was enforced the day it was signed.

Petitioner did not comply with the requirements of the law. Article 57 of the Labor Code x x x Prior approval of the DOLE to any apprenticeship program has to be secured as a condition sine qua non before any such apprenticeship agreement can be fully enforced. The role of the DOLE in apprenticeship programs and agreements cannot be debased.

EMPLOYER EMPLOYEE RELATIONSHIP

Employer-employee relationship is an agreement between parties to render service in exchange for compensation. [Compania Maritima v. Ernesta Cabagnot Vda. de Hio, G.R. No. L-17367-69, February 28, 1963]. However, these contracts are impressed with public interest that they must yield to the common good. [Article 1700, Civil Code]. Hence, the presence or absence of employer-employee relationship is a question of law. [Insular Life Assurance Co., Ltd. v. NLRC, G.R. No. 119930, March 12, 1998; Tabas v. California Manufacturing, G.R. No. 80680, January 26, 1989; SSS v. CA, G.R. No. 100388, December 14, 2000].

Azucena on EER: a natural person who is hired, directly or indirectly, by a natural or juridical person to perform activities related to the business of the “hirer” who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the “hiree.” [Cesario Azucena, Jr., Everyone’s Labor Code, p. 56 (2012)].

Employer – Any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business, industry, undertaking or activity of any kind and uses the services of another person who is under his order as regards the employment [Section 8(c), R.A. No. 8282].

Employer includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. Art 212(e)

Employee –Any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Labor Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. [Art 212 (f), Labor Code].

INDEPENDENT CONTRACTOR

Art. 106 – Contractor or Sub-Contractor

Contractor or subcontractor. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code.

In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.

The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job



contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.

There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.

"Contracting" or "Subcontracting" refers to an arrangement whereby a principal agrees to put out or farm out with a contractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal. [Section 3(c), D.O. No. 18-A].

"Contractor" refers to any person or entity, including a cooperative, engaged in a legitimate contracting or subcontracting arrangement providing either services, skilled workers, temporary workers, or a combination of services to a principal under a Service Agreement. [Section 3(d), D.O. No. 18-A].

"Contractor's employee" includes:

One employed by a contractor to perform or complete a job, work, or service pursuant to a Service Agreement with a principal.

It shall also refer to regular employees of the contractor whose functions are not dependent on the performance or completion of a specific job, work or service within a definite period of time, i.e., administrative staff. [Section 3(e), D.O. No. 18-A].

"Principal" refers to any employer, whether a person or entity, including government agencies and

government-owned and controlled-corporations, who/which puts out or farms out a job, service or work to a contractor. [Section 3(h), D.O. No. 18-A].

"Trilateral Relationship" refers to the relationship in a contracting or subcontracting arrangement where there is a contract for a specific job, work or service between the principal and the contractor, and a contract of employment between the contractor and its workers. There are three (3) parties involved in these arrangements: the principal who decides to farm out a job, work or service to a contractor; the contractor who has the capacity to independently undertake the performance of the job, work or service; and the contractual workers engaged by the contractor to accomplish the job, work or service. [Section 3(m), D.O. No. 18-A].

"Right to control" refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. [Section 3(i), D.O. No. 18-A].

"Service Agreement" refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job, work or service being farmed out for a definite or predetermined period. [Section 3(j), D.O. No. 18-A].

"Solidary liability" refers to:

The liability of the principal, pursuant to the provision of Article 109 of the Labor Code, as direct employer together with the contractor for any violation of any provision of the Labor Code. [Section 3(k), D.O. No. 18-A].

It also refers to the liability of the principal, in the same manner and extent that he/she is liable to his/her direct employees, to the extent of the work performed under the contract when the contractor fails to pay the wages of his/her employees, as provided in Article 106 of the Labor Code, as amended. [Section 3(k), D.O. No. 18-A].

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Contracting or subcontracting shall be legitimate if all the following circumstances concur:

The contractor must be registered in accordance with these Rules and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

The contractor has substantial capital and/or investment; and

The Service Agreement ensures compliance with all the rights and benefits under Labor Laws. [Section 4, D.O. No. 18-A].

Trilateral relationship in contracting arrangements; Solidary liability

In legitimate contracting or subcontracting arrangement there exists:

An employer-employee relationship between the contractor and the employees it engaged to perform the specific job, work or service being contracted; and

A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code.

In the event of any violation of any provision of the Labor Code, including the failure to pay wages, there exists a solidary liability on the part of the principal and the contractor for purposes of enforcing the provisions of the Labor Code and other social legislation, to the extent of the work performed under the employment contract.

However, the principal shall be deemed the direct employer of the contractor's employee in cases where there is a finding by a competent authority of labor-only contracting, or commission of prohibited activities as provided in Section 7, or a violation of either Sections 8 or 9 hereof. [Section 5, D.O. No. 18-A].

Prohibition against labor-only contracting.

Labor-only contracting is hereby declared prohibited. For this purpose, labor only contracting shall refer to an arrangement where:

The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are performing activities which are usually necessary or desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal; or

The contractor does not exercise the right to control over the performance of the work of the employee. [Section 6, D.O. No. 18-A].

Security of tenure of contractor's employees.

It is understood that all contractor's employees enjoy security of tenure regardless of whether the contract of employment is co-terminus with the service agreement, or for a specific job, work or service, or phase thereof. [Section 11, D.O. No. 18-A].



LABOR DISPUTE

Article. 212. Definitions. - (a) "Commission" means the National Labor Relations Commission or any of its divisions, as the case may be, as provided under this Code.

x x x

(i) "Company union" means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code.

x x x

GROUPS OF EMPLOYEES

Special – Women Art. 130-138

Prohibited Acts under the Labor Code and Implementing Rules: It shall be unlawful for any employer:

To deny any woman employee the benefits provided for in this Chapter (Employment of Women) or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code;a. To deny any woman employee of the benefits

provided under Chapter 1 (Employment of Women), Title III (Working Conditions for Special Groups of Employees) of Book III of the Labor Code, namely:

a. Facilities for women under Article 130 (132)

b. Maternity leave benefits under Article 131 (133)

c. Family planning services and incentives for family planning under Article 132 (134)

b. To discharge any woman employee for the purpose of preventing her from enjoying any of the benefits provided by the Labor Code.

NOTE: Under the first clause, mere denial of the benefits constitutes a violation while the second clause requires discharge or dismissal of the woman employee in order to prevent her from enjoying any benefit provided by the Code.

c. To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;

To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant;

The above two constitute the prohibited act of discharging a woman due to pregnancy which are:

1. To discharge a woman employee on account of her pregnancy;

2. To discharge a woman employee while she is on leave due to her pregnancy;



3. To discharge a woman employee while she is in confinement due to her pregnancy;

4. To discharge a woman employee upon returning to her work for fear that she may again be pregnant;

5. To refuse admission a woman employee upon returning to her work for fear that she may again be pregnant

Absences due to pregnancy related ailments such as urinary tract infection is not a valid ground for dismissal from work because it falls under the prohibition on discharging a woman employee on account of her pregnancy. [Del Monte Philippines, Inc. v. Velasco, G.R. No. 153477, March 6, 2007].

To discharge any woman or any other employee for having filed a complaint or having testified or being about to testify under the Code; and

To require as condition for or continuation of employment that a woman employee shall not get marries or to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.

[See Article 135 (137), Labor Code; Section 13, Rule XII, Book III, Rules Implementing the Labor Code].

Other law(s): Expulsion of Women faculty or female student due to pregnancy outside of marriage

Expulsion and non-readmission of women faculty due to pregnancy outside of marriage shall be outlawed. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school. [Section 13(c), R.A. No. 9710].

RULE XII – LC IRR: Employment of Women and Minors

SECTION 1. General statement on coverage. — This Rule shall apply to all employers, whether operating for profit or not, including educational, religious and charitable institutions, except to the Government and to government-owned or controlled corporations and to employers of household helpers and persons in their personal service insofar as such workers are concerned.

x x x

SECTION 4. Status of women workers in certain work places. — Any woman who is permitted or suffered to work with or without compensation, in any night club, cocktail lounge, beer house, massage clinic, bar or similar establishments, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishments for purposes of labor and social legislation. No employer shall discriminate against such employees or in any manner reduce whatever benefits they are now enjoying by reason of the provisions of this Section.cralaw

SECTION 5. Night work of women employees. — Any woman employed in any industrial undertaking may be allowed to work beyond 10:00 o'clock at night, or beyond 12:00 o'clock midnight in the case of women employees of commercial or non-industrial enterprises, in any of the following cases:

(a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquakes, epidemic or other disaster or calamity, to prevent loss of life or property or in cases of force majeure or imminent danger to public safety;

(b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer;

(c) Where the work is necessary to prevent serious loss of perishable goods;

(d) Where the woman employee holds a responsible position of a managerial or technical nature, or where



the woman employee has been engaged to provide health and welfare services;

(e) Where the nature of the work requires the manual skill and dexterity of women and the same cannot be performed with equal efficiency by male workers or where the employment of women is the established practice in the enterprises concerned on the date these Rules become effective; and

(f) Where the women employees are immediate members of the family operating the establishment or undertaking.cralaw

The Secretary of Labor and Employment shall from time to time determine cases analogous to the foregoing for purposes of this Section.cralaw

SECTION 6. Agricultural work. — No woman, regardless of age, shall be permitted or suffered to work, with or without compensation, in any agricultural undertaking at night time unless she is given a rest period of not less than nine (9) consecutive hours, subject to the provisions of Section 5 of this Rule.cralaw

SECTION 7. Maternity leave benefits. — Every employer shall grant to a pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months immediately preceding the expected date of delivery, or the complete abortion or miscarriage, maternity leave of at least two (2) weeks before and four (4) weeks after the delivery, miscarriage or abortion, with full pay based on her regular or average weekly wages.cralaw

SECTION 8. Accreditation of leave credits. — Where the pregnant woman employee fails to avail of the two-week pre-delivery leave, or any portion thereof, the same shall be added to her post-delivery leave with pay.cralaw

SECTION 9. Payment of extended maternity leave. — When so requested by the woman employee, the extension of her maternity leave beyond the four-week post-delivery leave shall be paid by the employer from her unused vacation and/or sick leave credits, if any, or allowed without pay in the absence

of such leave credits, where the extended leave is due to illness medically certified to arise out of her pregnancy, delivery, complete abortion or miscarriage which renders her unfit for work.cralaw

SECTION 10. Limitation on leave benefits. — The maternity benefits provided herein shall be paid by an employer only for the first four (4) deliveries, miscarriages, and/or complete abortions of the employee from March 13, 1973, regardless of the number of employees and deliveries, complete abortions or miscarriages the woman employee had before said date. For purposes of determining the entitlement of a woman employee to the maternity leave benefits as delimited herein, the total number of her deliveries, complete abortions, or miscarriages after said date shall be considered regardless of the identity or number of employers she has had at the time of such determination, provided that she enjoyed the minimum benefits therefor as provided in these regulations.cralaw

SECTION 11. Family planning services. — Employers who habitually employ more than two hundred (200) workers in any locality shall provide free family-planning services to their employees and their spouses which shall include but not limited to, the application or use of contraceptives.cralaw

Subject to the approval of the Secretary of Labor and Employment, the Bureau of Women and Young Workers shall, within thirty (30) days from the effective date of these Rules, prescribe the minimum requirements of family planning services to be given by employers to their employees.cralaw

SECTION 12. Relation to agreements. — Nothing herein shall prevent the employer and his employees or their representatives from entering into any agreement with terms more favorable to the employees than those provided herein, or be used to diminish any benefit granted to the employees under existing laws, agreements, and voluntary employer practices.cralaw

SECTION 13. Prohibited acts. — It shall be unlawful for any employer:



(a) To discharge any woman employed by him for the purpose of preventing such woman from enjoying the maternity leave, facilities and other benefits provided under the Code;

(b) To discharge such woman employee on account of her pregnancy, or while on leave or in confinement due to her pregnancy;

(c) To discharge or refuse the admission of such woman upon returning to her work for fear that she may be pregnant;

(d) To discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code; and

(e) To require as a condition for a continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.cralaw

SECTION 14. Facilities for woman employees. — Subject to the approval of the Secretary of Labor and Employment, the Bureau of Women and Young Workers shall, within thirty (30) days from the effective date of these Rules, determine in an appropriate issuance the work situations for which the facilities enumerated in Article 131 of the Code shall be provided, as well as the appropriate minimum age and other standards for retirement or termination of employment in special occupations in which women are employed.

Difference between an Employee and Independent Contractor

IC: On its own account and under its own responsibility according to its own manner and method, free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof.

Employee: Subject to the employers’ power to control the means and methods by which the employees’ work is to be performed and accomplished.

EMPLOYMENT OF MINORS

Art. 139. Minimum employable age.

a. No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.

b. Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations.

c. The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.

Art. 140. Prohibition against child discrimination. No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.

Omnibus Implementing Rules, Section 2&3, Rule XII

SECTION 2. Employable age. — Children below fifteen (15) years of age may be allowed to work under the direct responsibility of their parents or guardians in any non-hazardous undertaking where the work will not in any way interfere with their schooling. In such cases, the children shall not be considered as employees of the employers or their parents or guardians.

SECTION 3. Eligibility for employment. — Any person of either sex, between 15 and 18 years of age, may be employed in any non-hazardous work. No employer shall discriminate against such person in regard to terms and conditions of employment on account of his age.

DOMESTICS – EMPLOYMENT OF HOUSEHELPERS



Art. 141 – Persons rendering services in households for compensation

Maintenance and Enjoyment of the Household; Ministering to the personal comfort and convenience of the family members

Art. 151 – Employment Certification: Right receive a Written statement of the nature and duration of the service; efficiency and conduct.

OIR Rule XIII

Contract: Initial, 2 years only – maybe renewed from year to year

Assignment: Household only Education: If under 18, at least elementary,

employers cost, unless not in the contract. Unjust Termination: If contracted, fixed, unjustly

dismissed – shall be paid of what she already earned

Funeral: In case of death, Employer shall bare the expenses

Compensation: as in this code, but if higher already, thus shall retain.

EMPLOYMENT OF HOMEWORKERS

Art. 153. Regulation of industrial homeworkers. The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the Secretary of Labor and Employment to ensure the

general welfare and protection of homeworkers and field personnel and the industries employing them.

Art. 155. Distribution of homework. For purposes of this Chapter, the "employer" of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person:

1. Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or

2. Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.

OIR Rule XIV - HOMEWORKER

Homeworkers - Performs in or about his home any processing of goods or materials, in whole or in part, which have been furnished directly or indirectly by an employer and thereafter to be returned to the latter.

Home: Dwelling Payment: Immediately upon receipt; exc.

Contractor/Subcontractor: within the week No Deduction, unless directly at fault. Disagreement: Regional Office Liability if Contractor/Sub-Contractor fails to pay.

EMPLOYMENT OF HANDICAPPED/DISABLED

RA 7277 – Magna Carta for Disabled Persons

Covers all disabled person and Departments, offices and agencies of the National Government or non-government organizations involved.

Adopting policies ensuring the rehabilitation, self-development, and self-reliance

Same rights as other people Rehabilitation shall be the concern of the

Government Partnership with the Private Sector Sheltered Employment: Workshops providing

facilities, income producing projects.

Sec 5. No difference in the terms and conditions of employment

Sec. 6. Sheltered Employment

Sec. 7. Eligibility to Apprenticeships or Learnership, provided that they are suitable to the job.

Sec. 8. Incentives to Employers

Sec. 9. Entitlement to Vocational Rehabilitation (Training)



Sec. 10. Entitlement to Guidance and Counseling for employment

Sec. 11. IRR

Sec. 32. Protection from Discrimination, regarding the job: Limitation, Segregation, Classification; Standards that disqualifies;

Sec. 33. Employment Entrance Examination, Subjecting one to medical examination.

Art 78-81 Labor Code

Art. 78, Definition: Impaired by age or physical or mental deficiency or injury

Art. 79, When Employed: Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.

Art. 80, Terms: Shall not be less than 75%; Duration; Work to be performed.

Art. 81, Eligibility for Apprenticeship, if disability does not impeded operations.

OIR – Book II, Rule VIII

Employment agreement, furnished to DOLE

GROUPS OF EMPLOYEES – SPECIAL – ORDINARY

PROBATIONARY EMPLOYMENT

Art. 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An

employee who is allowed to work after a probationary period shall be considered a regular employee.

REGULAR AND CASUAL EMPLOYMENT

Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.



Art. 212 (M&N). Managerial and Supervisory Employees - "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book.

LABOR STANDARDS

COVERAGE

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. (As amended by Presidential Decree No. 570-A, November 1, 1974)

LABOR STANDARDS | WAGES

Art. 97(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

Art. 98. Application of Title. - This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law.

OIR – BOOK III – RULE VII

SECTION 3. Holiday Pay. — Every employer shall pay his employees their regular daily wage for any worked regular holidays.

As used in the rule, the term 'regular holiday' shall exclusively refer to: New Year's Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the last Sunday of August, the thirtieth of November, the twenty-fifth and thirtieth of December. Nationwide special days shall include the first of November and the last day of December.

As used in this Rule legal or regular holiday and special holiday shall now be referred to as 'regular holiday' and 'special day', respectively.

SECTION 4. Compensation for holiday work. — Any employee who is permitted or suffered to work on any regular holiday, not exceeding eight (8) hours, shall be paid at least two hundred percent (200%) of his regular daily wage. If the holiday work falls on the scheduled rest day of the employee, he shall be entitled to an additional premium pay of at least 30% of his regular holiday rate of 200% based on his regular wage rate.

SECTION 5. Overtime pay for holiday work. — For work performed in excess of eight hours on a regular holiday, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on such holiday work plus at least 30% thereof.

Where the regular holiday work exceeding eight hours falls on the scheduled rest day of the employee, he shall be paid an additional compensation for the overtime work equivalent to his regular holiday-rest day for the first 8 hours plus 30% thereof. The regular holiday rest day rate of an employee shall consist of 200% of his regular daily wage rate plus 30% thereof.

SECTION 6. Absences.

a) All covered employees shall be entitled to the benefit provided herein when they are on leave of absence with pay. Employees who are on leave of absence without pay on the



day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday.

b) Employees shall grant the same percentage of the holiday pay as the benefit granted by competent authority in the form of employee's compensation or social security payment, whichever is higher, if they are not reporting for work while on such benefits.

c) Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.cralaw

SECTION 7. Temporary or periodic shutdown and temporary cessation of work.

a) In cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule.

b) The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor and Employment may not be paid by the employer.

SECTION 8. Holiday pay of certain employees.

a) Private school teachers, including faculty members of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation;

b) Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the

holiday pay be less than the applicable statutory minimum wage rate.

c) Seasonal workers may not be paid the required holiday pay during off-season when they are not at work.

d) Workers who have no regular working days shall be entitled to the benefits provided in this Rule.

SECTION 9. Regular holiday falling on rest days or Sundays.

a) A regular holiday falling on the employee's rest day shall be compensated accordingly.

b) Where a regular holiday falls on a Sunday, the following day shall be considered a special holiday for purposes of the Labor Code, unless said day is also a regular holiday.




Documents

Memoire Labor Law