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ATENEO CENTRAL BAR OPERATIONS 2007

Labor Law and Social Legislation


SUMMER REVIEWER

Head:

Ryan Quan

Labor Standards:

Kukay Malabanan

Labor Relations:

Peewee Estrella

Socail Legislation: Binkki Hipolito


Understudy:

Kate Sabado

Volunteers:

Aren Samonte, Vina Padilla, Ria Campos, Ina Quintanilla, Athena Zosa

TABLE OF CONTENTS
LABOR STANDARDS
I. GENERAL PRINCIPLES..................................................................................................................... 1
A. ARTICLE 3: Declaration of Basic Policies
B. ARTICLE 4: Construction in Favor of Labor
C. ARTICLE 5: Rules and Regulations
D. ARTICLE 6: Applicability of Labor Code
II. EMPLOYER EMPLOYEE RELATIONSHIP ......................................................................... 2
A. Elements of Relationship
B. Independent Contractors and Labor-Only Contractors
C. Special Cases
III. PRE EMPLOYMENT............................................................................................................. 6
A. Principles and Definitions
B. Recruitment and Placement
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2. Regulation of Recruitment and Placement


3.

Contracts

4.

Dispute Settlements

C. Employment of Aliens
D. Human Resources and Manpower Development
1. Government Machinery

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2. Apprenticeship and Learnership
IV. WORKING CONDITIONS ...................................................................................................... 13
A. Coverage
B. Hours of Work
C. Rest Periods and Holidays
D. Service Charge and Service Incentive Leaves
E. Others
V. WAGES.................................................................................................................................. 20
A. Concept and Definition
B. Wage Fixing
C. Payment of Wages
D. Liability for Wages
VI. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES ............................... 26
A. Women
B. Minors
C. Househelpers
D. Homeworkers
E. Handicapped/Disabled
VII. ADMINISTRATION AND EMPLOYMENT ............................................................................. 30
A. ARTICLE 128: Visitorial and Enforcement Powers
B. Power of DOLE Secretary
VIII. MEDICAL, DENTAL AND OCCUPATIONAL SAFETY ........................................................ 31
IX. EMPLOYEES COMPENSATION.. ......................................................................... 31
A. Workmens Compensation

LABOR RELATIONS
I.

RIGHT TO SELF ORGANIZATION.................................................... 35


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A. Conceptareand
Scope...........................................................................................
35

1. ARTICLE 243: Coverage and E,mployees Right to Self-Organization


2. ARTICLE 246: Non-Abridgment of Right to Self-Organization
B. Labor Organization. .................................................................................................. 35
1. Definition and Types
2. Registration of Labor Organizations

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i.

Requirements for Registration


See ANNEX A

ii.

Requirements in Case of Merger/Consolidation


See ANNEX B

iii.

Procedure for Registration of labor Organization


See ANNEX C

3. Cancellation of Registration
i.

Procedure for Cancellation of Registration


See ANNEX D

4. Rights of Labor Organization


ii.

ARTICLE 242: Rights of Legitimate Labor Organizations

iii.

ARTICLE 277: Miscellaneous Provisions

C, Special Groups of Employees .................................................................... 37


1. Manegerial and Supervisory Employees
2. Confidential Employees
3. Security Guards
4. Members of Cooperatives
5. Members of Iglesia ni Kristo
6. Government Employees
i.

ARTICLE 244: Rights of Employees in the Public Service

ii.

ARTICLE 276: Government Employees

7. Employees of International Organizations


D. Acquisition and Retention of Membership; Union Security Agreements........ 39
1. ARTICLE 277: Miscellaneous Provisions
2. ARTICLE 248: Unfair Labor Practice of Employers
E. Membership; Rights of Members.. ............................................................. 40
1. ARTICLE 241: Rights and Conditions of Membership in a Labor Organization
2. ARTICLE 274: Visitorial Powers
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3. ARTICLE
222:
Appearances and Fees

4. Rights of Union Members


i.

Political Right

ii.

Deliberative and Decision-Making Right

iii.

Right Over Money Matters

iv.

Right to Information

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v.

Other Rights and Conditions Under Article 241

5. Elections Under Rule 12 of the Implementing Rules and Regulations


See ANNEX F
6. Check-Offs and Assessments
II. UNFAIR LABOR PRACTICES. .............................................. 42
A. ARTICLE 247: Concept of Unfair Labor Practice ................................................................ 42
B. Elements of Unfair labor Practice............................................................... 42
C. ARTICLE 248: Unfair Labor Practice of Employers ................................... 43
1. Interference
2. Yellow Dog Contract
3. Contracting Out
4. Company Domination of Union
5. Discrimination
6. Discrimination Because of Testimony
7. Violation of the Duty to Bargain
8. Paid Negotiation
9. Violation of the CBA
D. Relief in ULP Cases.............................................................................................. 49
E. ARTICLE 249: Unfair labor Practices of labor Organization ............................................... 50
1. Restraint or Coercion of labor Organization
2. Refusal to Bargain
3. Featherbedding and Make-Work Arrangements
III. RIGHT TO COLLECTIVE BARGAINING .............................................................................. 51
A. Duty to Bargain Collectively .............................................................................. 51
1. Collective Bargaining Agreement
2. Bargaining Procedure under the Labor Code
See ANNEX G
3. Violation of the Duty to Bargain Collectively
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4. Registration
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Collective Bargaining Agreement

5. Rules on Effectivity and Retroactivity of New CBA


B. Bargaining Agent and Certification Election Proceedings ................................................... 54
1. Voluntary Recognition
2. Certification Election
i.

Procedure for Petition for Certification Election

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See ANNEX H
ii.

Procedure for Conduct of Certification Election


See ANNEX I

C. Bars to Certification Election ..........................................................................59


1. Contract Bar
2. Deadlock Bar
3. Negotiation Bar
4. Certification Year Rule Bar
D. Administration If Agreement; Grievance and Voluntary Arbitration....................... 59
1. Establishments of Grievance Machinery
2. Procedure in Handling Grievances
See ANNEX J
E. Labor Management Cooperation Schemes......................................................................... 61
IV. STRIKES, LOCKOUTS AND CONCERTED ACTIONS........................................................ 61
A. Strike.. ............................................................................................................... 61
B. Lockout.............................................................................................................. 61
C. Notice of Strike or Lockout ......................................................................... 62
D. Prohibited Activities During Strike or Lockouts. ............................................. 63
E. Injunction.. ......................................................................................................... 63
F. Assumption of Jurisdiction by DOLE Secretary .................................................... 63
G. Powers of the President Under Article 263 (g). ........................................................ 64
V. POST EMPLOYMENT ........................................................................................................ 65
A. Regular, Casual, Probationary Employment .......................................... 65
1. Regular Employment
2. Casual Employment
3. Fixed-Term Employment
4. Project Employment
5. Probationary Employment
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6. Seasonal

B. Security of Tenure...................................................................................... 67
1. ARTICLE 279: Security of Tenure
C. Just Causes, Authorized Causes, Constructive Dismissal ................................... 67
1. ARTICLE 282: Just Causes for Termination by Employer
2. ARTICLE 283: Authorized Causes for Termination

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3. Constructive Dismissal
4. ARTICLE 284: Disease as Ground for Termination
5. ARTICLE 285: Termination by Employee
6. ARTICLE 286: When Employment Not Deemed Terminated
D. Due Process.. ....................................................................................................... 70
1. ARTICLE 277 (b): Miscellaneous Provisions
E. Reliefs for Illegal Dismissal............................................................................ 71
F. Retirement ..................................................................................................... 72
1. ARTICLE 287: Retirement
VI. DISPUTE SETTLEMENT....................................................................................................... 72
A. Jurisdiction of the Different Agencies. ............................................................... 72
1. Bureau of Labor Relations
2. Labor Arbiters
3. NLRC
4. Med-Arbiters/BLR
5. POEA
6. DOLE Regional Directors
7. NCMB
See ANNEX L
B. Procedure.......................................................................................................... 74
C. Appeal.. ........................................................................................... 75
1. Appeal of LAs Decision
2. Appeal Involving Monetary Award
3. Appeal of Voluntary Arbitrators Decision
4. Appeal of BLRs Decision
5. Appeal of Regional Directors Decision Under Article 129
VII. PENAL PROVISIONS AND LIABILITIES ............................................................................. 77
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SOCIAL LEGISLATION
I.

THIRTEENTH MONTH PAY (P.D. 851)............................................................................. 78

II. ANTI-SEXUAL HARASSMENT ACT OF 1995 (RA 7877).................................................... 78


III. EXECUTIVE ORDER NO. 180............................................................................................... 79
IV. SALIENT PROVISIONS OF THE SSS LAW AND GSIS LAW
See ANNEX O
V. NATIONAL HEALTH INSURANCE ACT OF 1995 (R.A. 7875)............................................ 80

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ATENEO CENTRAL BAR OPERATIONS 2007


Labor Law & Social Legislation
SUMMER REVIEWER

LABOR STANDARDS
I. GENERAL PRINCIPLES
Labor Code principal labor law of the country. But
even now, there are Labor Laws that are not found in
the Labor Code.
Social Legislation the promotion of the welfare of
all the people, the adoption by the government of
measures calculated to insure economic stability of
all the component elements of society thru the
maintenance of proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, thru the adoption of
measures legally justifiable, or extra-constitutionally,
thru the exercise of powers underlying the existence
of all governments, on the time honored principle of
salus populi esta suprema lex (Calalang v. Williams,
02 December 1940)
Social Justice humanization of laws and the
equalization of social and economic forces by the
State so that justice in its rational and objective
secular conception may at least be approximated
Labor Standards sets out the minimum 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
Labor Relations defines the status, rights and
duties, as well as the institutional mechanisms that
govern the individual and collective interactions
between
employers,
employees
and
their
representatives
Art. 3. Declaration of basic policy
Afford protection to labor
Promote full employment
Ensure equal work opportunities regardless of
sex, race, or creed
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employers
Assure workers rights to self-organization,
collective bargaining, security of tenure, and just
and humane conditions of work
Seven basic rights of workers guaranteed by the
Constitution:
1. right to organize
2. to conduct collective bargaining or negotiation
with management

3. to engage in peaceful concerted activities,


including strike in accordance with law
4. to enjoy security of tenure
5. to work under humane conditions
6. to receive a living wage
7. to participate in policy and decision-making
processes affecting their rights and benefits as
may be provided by law.
Art. 4. Construction in favor of labor
When the interest of labor and capital collide, the
heavier influence of capital should be
counterbalanced with the sympathy and
compassion of law for the less privileged
workers. But protection to labor does not mean
oppression or destruction of capital. The
employers act will be sustained when it is in the
right. [Eastern Shipping Lines v. POEA, 166
SCRA 523 (1998)]
Court decisions adopt a liberal approach that
favors the exercise of labor rights. The mandate
is simply to resolve doubt in favor of labor. If
there is no doubt in implementing and interpreting
the law, labor will enjoy no built-in advantage and
the law will have to be applied as it is.
When the subject matter is covered by the Labor
Code, doubts which involve implementation and
interpretation of labor laws should be resolved in
favor of labor, even if the question involves Rules
of Evidence.
Management Rights / Prerogative except as
limited by special laws, an employer is free to
regulate, according to his own discretion and
judgment, all aspects of employment, including hiring,
work assignments, working methods, time, place and
manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations,
transfer of employees, work supervision, lay-off of
workers and the discipline, dismissal and recall of
workers
Capitol Medical Center, Inc. v. Meris (16
September 2005)
As long as the companys exercise of the same is
exercised in good faith for the advancement of the
employers interest, and not for the purpose of
defeating or circumventing the rights of the
employees under special laws or valid agreements,
the courts will uphold them.

Adviser: Atty. Marlon J. Manuel; Head: Ryan Quan; Understudy: Kate Sabado;
Labor Standards: Kukay Malabanan; Labor Relations: Peewee Estrella; Social Legislation: Binkki Hipolito

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ATENEO CENTRAL BAR OPERATIONS 2007
Philippine Blooming Mills Employees Association
v. Philippine Blooming Mills, GR No. L-31195, 05
June 1973
The primacy of human rights freedom of
expression, of peaceful assembly and of petition for
redress of grievances over property rights has been
sustained.
PAL v. NLRC, GR No. 85985 (1993)
The exercise of management prerogatives is not
unlimited. A line must be drawn between
management prerogatives regarding business
operations per se and those which affect the rights of
employees. In treating the latter, management should
see to it that its employees are at least properly
informed of its decisions and modes of action.

Art. 5. Rules and regulations


Department of Labor and Employment (DOLE)
Lead agency in enforcing labor laws and it
possesses rule-making power in the enforcement
of the Code
But a rule or regulation that exceeds the
Departments rule-making authority is void.
Art. 6. Applicability of Labor Code
Applies alike to all workers, except as otherwise
provided by law, whether agricultural or nonagricultural.
Applies to a government corporation incorporated
under the Corporation Code

II. EMPLOYER EMPLOYEE RELATIONSHIP


(EER)
A. ELEMENTS OF RELATIONSHIP
Jurisprudential Tests to Determine Existence of
EER:
A. The employer has the ability (need not be
actual) to exercise control over the following:
1. Payment of Wages
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commission does not militate against the
conclusion EER exists. Under Art. 97 of the
Labor Code, "wage" shall mean "however
designated, capable of being expressed in
terms of money, whether fixed or ascertained
on a time, task, price or commission basis"
(Insular Life Assurance Co., Ltd. V. NLRC,
GR No.119930, 12 March 1998)

Wages are defined as remuneration or


earnings, however designated, capable of
being expressed in terms of money, whether
fixed or ascertained on a time, task, piece or
commission basis, or other method of
calculating the same, which is payable by an
employer to an employee under a written or
unwritten contract of employment for work
done or to be done, or for services rendered
or to be rendered, and included the fair and
reasonable value, as determined by the
Secretary of Labor, of board, lodging, or
other facilities customarily furnished by the
employer to the employee. [Ruga v. NLRC,
181 SCRA 266 (1990)]
2. Hiring employment relation arises from
contract of hire, express or implied [Ruga v.
NLRC, 181 SCRA 266 (1990)]
Selection and engagement of the
workers rests with the employers
Not a conclusive test since it can be
avoided by the use of subcontracting
agreements or other contracts other than
employment contracts
3. Firing disciplinary power exercised by
employer over the worker and the corresponding
sanction imposed in case of violation of any of its
rules and regulations
4. Control, not only over the end product / RESULT
of the work, but more importantly, control over
the MEANS through which the work is
accomplished. (most essential element; without
it, there is no EER)
B. Economic Relations Test a subordinate /
alternative test. Existing economic conditions
between the parties are used to determine whether
EER exists.
1. payment of PAG-IBIG Fund contributions
2. payment / remittance of contributions to the State
Insurance Fund
3. deduction of withholding tax
4. deduction / remittance of SSS contributions
Insular Life Assurance Co., Ltd. v. NLRC, GR No.
119930, 12 March 1998
The employment status of a person is defined
and prescribed by law and not by what the parties
say it should be.
Algon Engineering Construction Corp. v. NLRC,
GR No. 83402, 06 October 1997
No particular evidence is required to prove the
existence of an EER. All that is necessary is to show
that the employer is capable of exercising control
over the employee. In labor disputes, it suffices that
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there be a causal connection between the claim
asserted and the EER. Control of the employee's
conduct is commonly regarded as the most crucial
and determinative indicator of the presence or
absence of an employer-employee relationship.
Aurora Land Projects Corp. v. NLRC, GR No.
114733, 02 January 1997
Whenever the existence of EER is in dispute,
four elements constitute the reliable yardstick (fourfold test); (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of
dismissal; and (d) the employer's power to control the
employee's conduct. It is the so-called "control test,"
and that is whether the employer controls or has
reserved the right to control the employee not only as
to the result of the work to be done but also as to the
means and methods by which the same is to be
accomplished, which constitute the most important
index of the existence of the employer-employee
relationship Stated otherwise, an EER exists where
the person for whom the services are performed
reserves the right to control no only the end to be
achieved but also the means to be used in reaching
such end.
Filipinas Broadcasting Network, Inc. v. NLRC, GR
No. 118892, 11 March 1998
There could be no EER where "the element of
control is absent; where a person who works for
another does so more or less at his own pleasure
and is not subject to definite hours or conditions of
work; and in turn is compensated according to the
result of his efforts and not the amount thereof, we
should not find that the relationship of employeremployee exists."
Dy Keh Beng v. International Labor, GR No. L32245, 25 May 1979
It should be borne in mind that the control test
calls merely for the existence of the right to control
the manner of doing the work, not the actual exercise
of the right.
AFP Mutual Benefit Association v. NLRC, GR No.
102199, 28 January 1997
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fact that private respondent
was
required to solicit
business exclusively for petitioner could hardly be
considered as control in labor jurisprudence. Under
Memo Circulars No. 2-81 and 2-85 issued by the
Insurance Commissioner, insurance agents are
barred from serving more than one insurance
company, in order to protect the public and to enable
insurance companies to exercise exclusive
supervision over their agents in their solicitation work.

Thus, the exclusivity restriction clearly springs from a


regulation issued by the Insurance Commission, and
not from an intention by petitioner to establish control
over the method and manner by which private
respondent shall accomplish his work. This feature is
not meant to change the nature of the relationship
between the parties, nor does it necessarily imbue
such relationship with the quality of control
envisioned by the law.
So too, the fact that private respondent was
bound by company policies, memo/circulars, rules
and regulations issued from time to time is also not
indicative of control. With regard to the territorial
assignments given to sales agents, this too cannot be
held as indicative of the exercise of control over an
employee. Further, not every form of control that a
party reserves to himself over the conduct of the
other party in relation to the services being rendered
may be accorded the effect of establishing an
employer-employee relationship.
Ruga v. NLRC, 181 SCRA 266 (1990)
The employer-employee relationship between the
crew members and the owners of the fishing vessels
engaged in deep-sea fishing is merely suspended
during the time the vessels are drydocked or
undergoing repairs or being loaded with the
necessary provisions for the next fishing trip. The
said ruling is premised on the principle that all these
activities i.e., drydock, repairs, loading of necessary
provisions, form part of the regular operation of the
company fishing business.
B. INDEPENDENT CONTRACTORS AND
LABOR-ONLY CONTRACTORS
Independent
Contractors
has sufficient substantial
capital OR investment in
machinery, tools or
equipment directly or
intended to be related to
the job contracted
carries an independent
business different from
the employers
undertakes to perform
the job under its own
account and
responsibility, FREE from
the principals control
NO EER except when
the contractor or
subcontractor fails to pay
the employees wages.

Labor Only
Contractors
has NO substantial
capital OR investment in
the form of machinery,
tools or equipment

has no independent
business
performs activities
directly related to the
main business of the
principal
Principal treated as direct
employer of the person
recruited in all instances
(contractor is deemed
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LIMITED liability
(principal solidarily liable
with contractor or
subcontractor only when
latter fails to comply with
requirements as to
unpaid wages and other
labor standards
violations.
PERMISSIBLE

agent of the principal)


Principals liability
extends to all rights,
duties and liabilities
under labor standard
laws including the right to
self-organization

PROHIBITED

Contracting or subcontracting an arrangement


whereby a principal agrees to put out or farm out with
a contractor or subcontractor 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
Contractor or subcontractor any person or entity
engaged in a legitimate contracting or subcontracting
arrangement

2. The employees recruited, supplied or placed by


such contractor or subcontractor are performing
activities which are directly related to the main
business of the principal; or
3. The contractor does not exercise the right to
control over the performance of the work of the
contractual employee.
Substantial capital or investment capital stocks
and subscribed capitalization in the case of
corporations,
tools,
equipment,
implements,
machineries and work premises, actually and directly
used by the contractor or subcontractor in the
performance or completion of the job, work or service
contracted out.
Right to Control 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.

Contractual employee one employed by a


contractor or subcontractor to perform or complete a
job, work or service pursuant to an arrangement
between the latter and a principal
Principal any employer who puts out or farms out a
job, service or work to a contractor or subcontractor
Permissible Job Contracting; Conditions
a. The contractor carries on an independent
business;
b. Undertakes the contract work on his own account
under his own responsibility according to his own
manner and method, free from the control and
direction of his employer or principal in all matters
connected with the performance of the work
except as to the results thereof; and
c. The contractor has substantial capital or
investment in the form of tools, equipment,
machineries, work premises, and other materials
which are necessary in the conduct of his
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Labor-only Contracting an arrangement where


the contractor or subcontractor merely recruits,
supplies or places workers to perform a job, work or
service for a principal, and any of the following
elements are present:
1. The contractor or subcontractor does not have
substantial capital or investment which relates to
the job, work or service to be performed

The test to determine whether one is a job or


labor-only contractor is to look into the elements
of a job contractor. If ALL elements of a job
contractor are present, then he is a job
contractor. Otherwise, he is a labor-only
contractor. Absent one of the elements for being
a job contractor, the person is a labor-only
contractor.
On the other hand, not all requisites of a laboronly contractor need to be present. As long as
any one of the elements is present, then the
person is a labor-only contractor.

Posting of Bond an employer or indirect employer


may require the contractor or subcontractor to furnish
a bond equal to the cost of labor under contract, on
condition that the bond will answer for the wages due
the
employees
should
the
contractor
or
subcontractor, as the case may be, fail to pay the
same
Civil liability of employer and contractors Every
employer or indirect employer shall be jointly and
severally liable with his contractor or sub-contractor
for the unpaid wages of the employees of the latter.
Such employer or indirect employer may require the
contractor or sub-contractor to furnish a bond equal
to the cost of labor under contract on condition that
the bond will answer for the wages due the
employees should the contractor or subcontractor, as
the case may be, fail to pay the same
Liability of the principal to the employee in cases
of illegal dismissal
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1. Joint and several with the employer, but with the
right to reimbursement from the employercontractor
2. Wage differentials only to the extent where the
employee performed the work under the
principal.
3. Separation pay and backwages, only when the
principal has some relation to the termination
(such as when he conspired to terminate)
(Rosewood Processing Inc. v. NLRC, GR Nos.
116476-84, 21 May 1998)
NOTE: this ruling is an obiter and made an
unjustified interpretation of Art. 109 of the Labor
Code. Art. 109 makes the principal liable in illegal
dismissal WON there was fault on his part.
Prohibited Acts (DO 18-02):
a. Contracting out of a job, work or service when not
done in good faith and not justified by the
exigencies of the business and the same results
in the termination of regular employees and
reduction of work hours or reduction or splitting of
the bargaining unit

iii.

Requiring him to sign a contract fixing the


period of employment to a term shorter
than the term of the contract between the
principal
and
the
contractor
or
subcontractor, unless the latter contract is
divisible into phases for which substantially
different skills are required and this is
made known to the employee at the time of
engagement

d. Contracting out of a job, work or service through


an in-house agency which refers to a contractor
or subcontractor engaged in the supply of labor
which is owned, managed or controlled by the
principal and which operates solely for the
principal
e. Contracting out of a job, work or service directly
related to the business or operation of the
principal by reason of a strike or lockout whether
actual or imminent
f.

Contracting out of a job, work or service being


performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their rights to self organization as
provided in Art. 248 (c) of the Labor Code, as
amended

b. Contracting out of work with a "cabo" as defined


in Section 1 (ii), Rule I, Book V of these Rules.
"Cabo" refers to a person or group of persons or
to a labor group which, in the guise of a labor
organization, supplies workers to an employer,
with or without any monetary or other
consideration whether in the capacity of an agent
of the employer or as an ostensible independent
contractor

Existence of EER The contractor or subcontractor


shall be considered the employer of the contractual
employee for purposes of enforcing the provisions of
the Labor Code and other social legislation.

c.

Taking undue advantage of the economic


situation or lack of bargaining strength of the
contractual employee, or undermining his
security of tenure or basic rights, or
circumventing the provisions of regular
employment, in any of the following instances:
i.
In addition to his assigned functions,
requiring the contractual employee to
perform functions which are currently being
performed by the regular employees of the
principal or of the contractor or
subcontractor;
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ii.
RequiringTIFFhim
to
sign, and
asa a precondition to
(Uncompressed) decompressor
are needed
to see this picture.employment, an
employment
or continued
antedated resignation letter; a blank
payroll; a waiver of labor standards
including minimum wages and social or
welfare benefits; or a quitclaim releasing
the principal, contractor or subcontractor
from any liability as to payment of future
claims; and

The principal, however, shall be solidarily liable


with the contractor in the event of any violation of
any provision of the Labor Code, including the
failure to pay wages.
The principal shall be deemed the employer of
the contractual employee in any of the following
cases as declared by a competent authority:
a. where there is labor-only contracting; or
b. where the contracting arrangement falls
within the prohibited acts

Registration of Contractors and Subcontractors


The
registration
of
contractors
and
subcontractors shall be necessary for purposes
of establishing an effective labor market
information and monitoring.
Failure to register shall give rise to the
presumption that the contractor is engaged in
labor-only contracting.
Neri v. NLRC, GR Nos. 97008-09, 23 July 1993

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The law does not require both substantial capital
and investment in the form of tools, equipment and
machineries. This is clear from the use of the
conjunction or. If the intention was to require the
contractor to prove that he has both capital and the
requisite investment, then the conjunction and
should have been used.
While these services (janitorial, security and even
technical or other specific services) may be
considered directly related to the principal business
of the employer, nevertheless, they are not
necessary in the conduct of the principal business of
the employer.
Lapanday Agricultural Devt Corp. v. CA, GR No.
112139, 31 January 2000
It will be seen from the above provisions that the
principal (petitioner) and the contractor (respondent)
are jointly and severally liable to the employees for
their wages. The joint and several liability of the
contractor and the principal is mandated by the Labor
Code to assure compliance with the provisions
therein including the minimum wage. The contractor
is made liable by virtue of his status as direct
employer. The principal, on the other hand, is made
the indirect employer of the contractor's employees to
secure payment of their wages should the contractor
be unable to pay them. Even in the absence of an
EER, the law itself establishes one between the
principal and the employees of the agency for a
limited purpose i.e. in order to ensure that the
employees are paid the wages due them.
Several factors to consider to Determine Whether
Contractor is carrying on an independent
business:
1. nature and extent of work
2. skill required
3. term and duration of the relationship
4. right to assign the performance of specified
pieces of work
5. control and supervision of worker
6. power of employer with hiring, firing, and
payment of wages
7. control of the premises
8. duty to supply premises,
tools, appliances,
QuickTime and a
TIFF (Uncompressed) decompressor
materials and labor
are needed to see this picture.
9. mode, manner, terms of payment (Vinoya v.
NLRC, GR No. 126286, 02 February 2000)
C. SPECIAL CASES
1. Working scholars no EER between students
on one hand, and schools, colleges or
universities on the other, where:

a. there is written agreement between them


under which the former agree to work for the
latter in exchange for the privilege to study
free of charge
b. provided, the students are given real
opportunities, including such facilities as may
be reasonable and necessary to finish their
chosen courses under such agreement
2. Resident physicians in training There is EER
between resident physicians and the training
hospital unless:
a. There is a training agreement between them
b. The training program is duly accredited or
approved by the appropriate government
agency.

III. PRE-EMPLOYMENT
A. PRINCIPLES AND DEFINITIONS
JMM Promotion & Management Inc. v. CA, GR No.
120095, 05 August 1996
The POEA Rules are clear. A reading thereof
readily shows that in addition to the cash and surety
bonds and the escrow money, an appeal bond in an
amount equivalent to the monetary award is required
to perfect an appeal from a decision of the POEA.
Obviously, the appeal bond is intended to further
insure the payment of the monetary award in favor of
the employee if it is eventually affirmed on appeal to
the NLRC. Overseas recruiters are subject to more
stringent requirements because of the special risks to
which our workers abroad are subjected by their
foreign employers, against whom there is usually no
direct or effective recourse. The overseas recruiter is
solidarily liable with the foreign employer. The bonds
and the escrow money are intended to insure more
care on the part of the local agent in its choice of the
foreign principal to whom our overseas workers are
to be sent. Every intendment of the law must be
interpreted in favor of the working class, conformably
to the mandate of the Constitution. By sustaining
rather than annulling the appeal bond as a further
protection to the claimant employee, this Court
affirms once again its commitment to the interests of
labor.
PNB v. Cabansag, GR No. 157010, 21 June 2005
Noteworthy is the fact that respondent likewise
applied for and secured an Overseas Employment
Certificate from the POEA through the Philippine
Embassy in Singapore. The Certificate, issued on
March 8, 1999, declared her a bona fide contract
worker for Singapore. Under Philippine law, this
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document authorized her working status in a foreign
country and entitled her to all benefits and processes
under our statutes. Thus, even assuming that she
was considered at the start of her employment as a
direct hire governed by and subject to the laws,
common practices and customs prevailing in
Singapore she subsequently became a contract
worker or an OFW who was covered by Philippine
labor laws and policies upon certification by the
POEA. At the time her employment was illegally
terminated, she already possessed the POEA
employment Certificate. Whether employed locally or
overseas, all Filipino workers enjoy the protective
mantle of Philippine labor and social legislation,
contract stipulations to the contrary notwithstanding.
This pronouncement is in keeping with the basic
public policy of the State to 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.
B. RECRUITMENT AND PLACEMENT

5.

6.

7.

8.

9.

10.

1. Definition: Illegal Recruitment; Prohibited Acts


Recruitment and Placement any act of
(CETCHUP) canvassing, enlisting, transporting,
contracting, hiring, utilizing or procuring workers and
includes (CRAP) includes contract services, referrals,
advertising
for
employment,
promising
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
Prohibited Practices
1. To charge or accept, directly or indirectly, any
amount greater than that specified 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
2. To furnish or publish any false notice or
information or document
in relation to recruitment
QuickTime and a
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or employmentTIFFare(Uncompressed)
needed to see this picture.
3. To give any false notice, testimony, information
or document or commit any act of
misrepresentation for the purpose of securing a
license or authority under this Code
4. To induce or attempt to induce a worker already
employed to quit his employment in order to offer
him to another unless the transfer is designed to

11.

12.
13.

liberate the worker from oppressive terms and


conditions of employment
To influence or to attempt to influence any person
or entity not to employ any worker who has not
applied for employment through his agency
To engage in the recruitment or placement of
workers in jobs harmful to public health or
morality or to the dignity of the Republic of the
Philippines
To obstruct or attempt to obstruct inspection by
the Secretary of Labor or by his duly authorized
representatives
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
To substitute or alter employment contracts
approved and verified by the Department of
Labor from the time of actual signing thereof by
the parties up to and including the periods of
expiration of the same without the approval of the
Secretary of Labor
To become an officer or member of the Board of
any corporation engaged in travel agency or to
be engaged directly or indirectly in the
management of a travel agency
To withhold or deny travel documents from
applicant workers before departure for monetary
or financial considerations other than those
authorized under this Code and its implementing
rules and regulations
Failure to actually deploy without valid reason as
determined by DOLE
Failure to reimburse expenses incurred by the
worker in connection with his documentation and
processing for purposes of deployment, in cases
where the deployment does not actually take
place without the workers fault

Art. 38. Illegal recruitment


Any recruitment activities, including the prohibited
practices enumerated under Article 34 of this
Code, to be undertaken by non-licensees or nonholders of authority, shall be deemed illegal and
punishable under Article 39 of this Code. The
Department of Labor and Employment or any law
enforcement officer may initiate complaints.
People v. Panis, 142 SCRA 664 (1986)
The number of persons dealt with is not the basis
in determining WON an act constitutes recruitment
and placement. Any of the acts mentioned in Article
13 (b) will constitute recruitment and placement even
if only one prospective worker is involved. In that
case, a license or authority from POEA is needed.
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The proviso about two or more persons merely lays
down a rule of evidence: where fee is collected
because of a promise or offer of employment to two
or more prospective workers, the individual or entity
dealing with them shall be deemed to be engaged in
the act of recruitment and placement. The words
shall be deemed create that presumption.

Labor Code
local recruitment and
employment
Illegal Recruitment
(Art. 38):
Any recruitment
activity including
Prohibited Acts
under Art. 34
committed by nonlicensees or nonholders of authority.
Elements:
1. That the offender
has no valid license
or authority required
by law to enable one
to lawfully engage in
recruitment and
placement of
workers; and,
2. That the offender
undertakes either
any activity within
the meaning of
recruitment and
placement defined
under Article 13(b),
or any prohibited
practices
enumerated under
Article 34.

RA 8042 Overseas
Filipinos and Overseas
Migrant Workers Act
applies to recruitment for
overseas employment
Illegal Recruitment (Sec.
6):
Any recruitment activity
committed by nonlicensees / non-holders
of authority; OR
Prohibited Acts (same
as Art. 34 of LC)
committed by any
person, whether a nonlicensee, non-holder,
licensee or holder of
authority.
Added the following in
the list of Prohibited
Acts:
1. fail to actually deploy
without valid reason;
2. fail to
reimburse expenses
incurred by the worker
in connection with
his/her documentation
and processing for
purposes of
deployment, in cases
where the deployment
does not actually take
place without the
workers fault.

To prove illegal recruitment, it must be shown


that the accused gaveQuickTime
the distinct
impression that
and a
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decompressor
he had the power
or
ability
to
send
complainants
are needed to see this picture.
abroad for work such that the latter were
convinced to part with their money in order to be
deployed.
A person is guilty of illegal recruitment when he
gives the impression that he has the power to
send workers abroad.

Illegal recruitment involving economic sabotage

1. By a syndicate carried out by a group of 3 or


more persons confederating with one another
2. In large scale committed against 3 or more
persons individually or as a group
People v. Fernandez, et. al., 07 March 2002
These categories are separate or independent
categories. If there is only one complainant in several
complaints, there is no illegal recruitment in large. But
where there are three conspiring recruiters, there is
illegal recruitment by a syndicate.
Non-licensee / Non-Holder of authority any
person, corporation or entity which has not been
issued a valid license or authority to engage in
recruitment and placement by the Secretary of Labor,
or whose license or authority has been suspended,
revoked or cancelled by the POEA or the Secretary
Who are liable:
Principals, accomplices, and accessories
For juridical persons, the officers having control,
management or direction of their business shall
be liable.
Where illegal recruitment is proved but the
elements of large scale or syndicate are
absent, the accused can be convicted only of
simple illegal recruitment. (People v. Sagun, GR
No. 110554, 19 February 1999)
Illegal recruitment (IR) involving Economic
Sabotage (Art. 38 (b) Labor Code & Sec. 10 RA
8042):
1. IR committed by syndicate carried out by a
group of 3 or more persons conspiring and/or
confederating with one another in carrying out
any unlawful or illegal transaction, enterprise or
scheme falling under illegal recruitment
2. IR committed in large scale - committed against 3
or more persons individually or as a group
Estafa a person convicted for illegal recruitment
under Labor Code can be convicted for violation of
the Revised Penal Code provisions on estafa
provided the elements of the crime are present.
Art. 39 (c) of Labor Code unconstitutional
Only a Judge may issue warrants of search and
arrest. The labor authorities must go through the
judicial process.
Venue filed with the RTC of the province or city,
Where offense committed; OR
Where offended party actually resides at the time
of the commission of the offense

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ATENEO CENTRAL BAR OPERATIONS 2007
Prescriptive Periods:
Simple IR within 5 years from time IR
happened
Economic Sabotage within 20 years from time
IR happened
People v. Diaz, 259 SCRA 441 (1996)
The acts of the appellant, which were clearly
described in the lucid testimonies of the three victims,
such as collecting from each of the complainants
payment for passport, medical tests, placement fee,
plane tickets and other sundry expenses, promising
them
employment
abroad,
contracting
and
advertising
for
employment,
unquestionably
constitute acts of large scale illegal recruitment.
Aquino v. CA, 204 SCRA 240 (1991)
Receipt of payments, after the expiration of the
license, for services rendered before said expiration
does not constitute illegal recruitment. Recruitment
refers to the offering of inducements to qualified
personnel to enter a particular job or employment.
The advertising, the promise of future employment
and other come-ons took place while Ms. Aquino was
still licensed. True, the payments for services
rendered are necessary consequences of the
applications for overseas employment. However, it is
asking too much to expect a licensed agency to
absolutely at the stroke of midnight stop all
transactions on the day its license expires and refuse
to accept carry-over payments after the agency is
closed. In any business, there has to be a winding-up
after it ceases operations. The collection of unpaid
accounts should not be the basis of a criminal
prosecution.
The prosecution is based on the date of the
prohibited activity, not on the payments being illegal
exactions even if effected during the correct period.
The payments are necessary in order to defray the
expenses entailed in any overseas contract of
employment. They are intended for administrative
and business expenses and for the travelling
expenses of the applicants once cleared for overseas
travel.
People v. Senoron, 267 SCRA 278 (1997)
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issuance or signing of receipts for the placement fees
that makes a case for illegal recruitment, but rather
the undertaking of recruitment activities without the
necessary license or authority. Absent any other
participation in the IR activities, mere receiving of
placement fees or signing of receipt do not constitute
IR.

By themselves, procuring a passport, airline


tickets and foreign visa for another individual, without
more, can hardly qualify as recruitment activities. IR
must be proved beyond reasonable doubt.
2. Regulation of Recruitment and Placement
Activities
Entities authorized to engage in recruitment and
placement
a. public employment offices
b. Philippine Overseas Employment Administration
(POEA)
c. private recruitment entities
d. private employment agencies
e. shipping or manning agents or representatives
f. such other persons or entities as may be
authorized by the DOLE Secretary
g. construction contractors
Is direct-hiring of OFWs allowed? Why?
No. Employers cannot directly hire workers for
overseas employment except through authorized
entities see (enumeration above).
The reason for the ban is to ensure full regulation
of employment in order to avoid exploitation.
Fees to be Paid by Workers:
No worker shall be charged with any fee until
employee: (1) obtained work through recruiters
efforts; and (2) worker has actually commenced
working.
Placement fee in an amount equivalent to one
months salary of the worker and documentation
costs are the ONLY AUTHORIZED PAYMENTS
that may be collected from a hired worker.
Eastern Assurance and Surety Corp. v. Secretary
of Labor, 181 SCRA 110 (1990)
POEA has the power to order refund of illegally
collected fees. Implicit in its power to regulate the
recruitment and placement activities of all agencies is
the award of appropriate relief to the victims of the
offenses committed by the respondent agency or
contractor. Such relief includes the refund or
reimbursement of such fees as may have been
fraudulently or otherwise illegally collected, or such
money, goods or services imposed and accepted in
excess of what is licitly prescribed.
Nature of the liability of local recruitment agency
and foreign principal
1. Local Agency is solidarily liable with foreign
principal.

Darvin v. CA, 292 SCRA 534 (1998)


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ATENEO CENTRAL BAR OPERATIONS 2007
2. Severance of relations between local agent and
foreign principal does not affect liability of local
recruiter.

protection from unscrupulous employers, the


recruitment or placement agency in the Philippines
be made to share in the employer's responsibility.

Joint and solidary liability of recruiter with


Foreign Principal
A recruitment agency is solidarily liable for the
unpaid salaries of a worker it recruited for
employment overseas.
Even if the recruiter and the principal had already
severed their agency agreement at the time
employee was injured, the recruiter may still be
sued for a violation of the employment contract
because no notice of the agency agreement's
termination was given to the employee.

Stronghold Insurance Co. v. CA, 205 SCRA 605


(1992)
The surety bond required of recruitment agencies
is intended for the protection of our citizens who are
engaged for overseas employment by foreign
companies. The purpose is to insure that if the rights
of these overseas workers are violated by their
employers, recourse would still be available to them
against the local companies that recruited them for
the foreign principal. The foreign principal is outside
the jurisdiction of our courts and would probably have
no properties in this country against which an
adverse judgment can be enforced. This difficulty is
corrected by the bond, which can be proceeded
against to satisfy that judgment.

Catan v. NLRC, 160 SCRA 691 (1988)


This must be so, because the obligations
covenanted in the recruitment agreement entered
into by and between the local agent and its foreign
principal are not coterminous with the term of such
agreement so that if either or both of the parties
decide to end the agreement, the responsibilities of
such parties towards the contracted employees under
the agreement do not at all end, but the same
extends up to and until the expiration of the
employment contracts of the employees recruited
and employed pursuant to the said recruitment
agreement. Otherwise, this will render nugatory the
very purpose for which the law governing the
employment of workers for foreign jobs abroad was
enacted.
Posting of cash bond by recruiter
Capricorn Travel & Tours v. CA, 184 SCRA 123
(1990)
The requirement for the posting of a cash bond is
also an indispensable adjunct to the requirement that
the agency undertakes to assume joint and solidary
liability with the employer for all claims and liabilities
which may arise in connection with the
implementation of the contract of overseas
employment and to guarantee compliance with
existing labor and social legislation of the Philippines
and the country of employment. The undertaking to
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decompressor
assume joint and solidary
liability
and to guarantee
are needed to see this picture.
compliance with labor laws, and the consequent
posting of cash and surety bonds, may be traced all
the way back to the constitutional mandate for the
State to "afford full protection to labor, local and
overseas." The peculiar nature of overseas
employment makes it very difficult for the Filipino
overseas worker to effectively go after his foreign
employer for employment-related claims and, hence,
public policy dictates that, to afford overseas workers

Liability of surety
In a surety bond, the surety unequivocally bound
itself to answer for all liabilities which the POEA
may adjudge or impose against the principal in
connection with the recruitment of Filipino
seamen
Stronghold Insurance Co. v. CA, 205 SCRA 605
(1992)
The surety agreed to answer for whatever
decision might be rendered against the principal,
whether or not the surety was impleaded in the
complaint and had the opportunity to defend itself.
There is nothing in the stipulation calling for a direct
judgment against the surety as a co-defendant in an
action against the principal.
Power to suspend or cancel any license or
authority to recruit employees for overseas
employment is concurrently vested with the
POEA and the Secretary of Labor.
The penalties of suspension and cancellation of
license or authority are prescribed for violations
of the above quoted provisions, among others.
And the Secretary of Labor has the power under
Section 35 of the law to apply these sanctions, as
well as the authority, conferred by Section 36, not
only to 'restrict and regulate the recruitment and
placement activities of all agencies,' but also to
'promulgate rules and regulations to carry out the
objectives and implement the provisions'
governing said activities. Pursuant to this rulemaking power thus granted, the Secretary of
Labor gave the POEA on its own initiative or
upon filing of a complaint or report or upon
request for investigation by any aggrieved
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ATENEO CENTRAL BAR OPERATIONS 2007
person, (authority to) conduct the necessary
proceedings for the suspension or cancellation of
the license or authority of any agency or entity'
for certain enumerated offenses including
1. the imposition or acceptance, directly or
indirectly, of any amount of money, goods or
services, or any fee or bond in excess of
what is prescribed by the Administration
2. any other violation of pertinent provisions of
the Labor Code and other relevant laws,
rules and regulations.

possible under the circumstances, the proper


disposition thereof, upon prior arrangement with
the workers next-of-kin and the nearest Embassy
or Consulate through the Office of the Labor
Attache
7. Assistance in the remittance of workers salaries,
allowances or allotments to his beneficiaries
8. Free and adequate lodging facilities or
compensatory food allowance at prevailing cost
of living standards at the jobsite
4. Dispute Settlement

The Administrator was also given the power to


'order the dismissal of the case or the suspension
of the license or authority of the respondent
agency or contractor or recommend to the
Minister (now Secretary) the cancellation thereof.

3. Contracts

Regulatory power DOLE Secretary shall have the


power to restrict and regulate the recruitment and
placement activities of all agencies within the
coverage of this Title and is hereby authorized to
issue orders and promulgate rules and regulations to
carry out the objectives and implement the provisions
of this Title.

Freedom to Stipulate
Vir-Jen Shipping v. NLRC, 115 SCRA 347 (1992);
125 SCRA 577 (1983)
The form contracts approved by the National
Seamen Board [now POEA] are designed to protect
Filipino seamen not foreign shipowners who can take
care of themselves. The standard forms embody the
basic minimums which must be incorporated as parts
of the employment contract. They are not collective
bargaining agreements or illimitable contracts which
the parties cannot improve upon or modify in the
course of the agreed period of time.

Terms and conditions and other benefits not


provided by the minimum requirements are valid
if the whole employment package is more
beneficial to the worker than the minimum. But
the stipulations should not contradict law, public
policy and morals.

Minimum Provisions for Contract


1. Guaranteed wages, for regular working hours
and overtime pay for services rendered beyond
regular work hours in accordance with the
standards established by the Administration
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2. Free transportation
from
point
of hire to site of
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employment and return
3. Free emergency medical and dental treatment
and facilities
4. Just causes for the termination of the contract or
of the services of the workers
5. Workmens compensation benefits and war
hazard protection
6. Repatriation of workers remains and properties in
case of death to the point of hire, or if this is not

Jurisdiction of the POEA


Original and exclusive jurisdiction to hear and decide:
a. all cases, which are administrative in character,
involving or arising out of violations of rules and
regulations relating to licensing and registration
of recruitment and employment agencies or
entities
b. disciplinary action cases and other special cases,
which are administrative in character, involving
employers, principals, contracting partners and
Filipino migrant workers
Money Claims of OFWs
A worker dismissed from overseas employment
without just, valid or authorized cause as defined by
law or contract, is entitled to:
a. full reimbursement of the placement fee with
interest at 12% per annum PLUS
b. his salary for unexpired portion of his
employment contract OR salary for 3 months for
every year of the unexpired term, WHICHEVER
IS LESSER

3-months option available ONLY IF the


employment contract is for at least one year. If
the contract is shorter than that, the salary paid
should be that for the unexpired portion.

Jurisdiction over Money Claims


Labor Arbiters have jurisdiction over all monetary
claims of Overseas Filipino Workers arising from
employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas
deployment, including claims for actual, moral,
exemplary and other forms of damages.
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C. EMPLOYMENT OF ALIENS
Requisites for Employment of Non-Resident
Aliens
1. working permit from DOLE
2. certification that there is no available Filipino
willing and competent to do the job for the
employer
3. alien must train at least two Filipino understudies
for such undertaking
4. FOR
ENTERPRISES
REGISTERED
IN
PREFERRED AREAS OF INVESTMENT
employment permit issued upon recommendation
of government agency charged with the
supervision of said registered enterprise
Exemption from Permit
1. All members of Diplomatic Services and foreign
government officials accredited with the Phil.
Government
2. Members of international organizations with
which the Phil. Government is a cooperating
member (i.e. ADB, IRRI)
3. Missionaries actually engaged in missionary work
4. All aliens granted exemption by special laws and
all those whose employment in the Phil. Have
been determined by the Sec. of Labor to be
beneficial to national interest.
Duration of Permit
Valid for 1 year from date of issuance, unless
sooner revoked by the Secretary of Labor
Renewable upon showing of good cause
Non-transferable
Other Prohibitions
Aliens shall not transfer to another job or change
his employer without prior approval of the
secretary of labor
Non-resident alien shall not take up employment
in violation of the provisions of the Code.
D. HUMAN RESOURCES &
MANPOWER DEVELOPMENT
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Policy
It is the policy of the State to provide relevant,
accessible, high quality and efficient technical
education and skills development in support of the
development of high-quality Filipino middle-level
manpower responsive to and in accordance with
Philippine development goals and priorities.

Power and Functions of TESDA


Responsible
for
formulating,
continuing,
coordinating, and fully integrating technical education
and skills development policies, plans and programs
2. Apprenticeship and Learnership
Learners
Apprentices
Persons hired as Practical
What
trainees in semitraining on the
skilled and other
job
industrial
Supplemented
occupations
by related
Nontheoretical
apprenticeable
instruction
May be learned
Covered by a
through practical
written
training on the
apprenticeship
job in a relatively
agreement with
short period of
an individual
time
employer or
Shall not exceed
entity
3 months
Needs DOLE
approval
Shall not
exceed 6
months
No experienced
Only in highlyWhen
workers
technical
may be
available
industries
hired
Prevent
Only in
curtailment of
apprenticeable
employment
occupations
opportunities
Not to create
unfair
competition in
labor costs and
lower working
standards
List of learnable
At least 14
trades provided
years old
by TESDA
Possesses
vocational
aptitude and
capacity for
tests
Ability to
comprehend
Ability to follow
oral and written
instructions
Any form of
employment
requiring
beyond 3 mos.
practical
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training on the
job
supplemented
by related
theoretical
instruction
No list
Requisites for a Valid Apprenticeship
1. qualifications of apprentice are met
2. the apprentice earns not less than 75% of the
prescribed minimum salary
3. apprenticeship agreement duly executed and
signed
4. apprenticeship program approved by the Sec. of
Labor; otherwise, the apprentice shall be deemed
as a regular employee
5. period of apprenticeship not exceed 6 months

At the termination of the apprenticeship, the


employer is not required to continue the
employment.
Employer may not pay wage if the apprenticeship
is
a requirement for graduation
required by the School
required by the Training Program Curriculum
requisite for Board examination

Venue of Apprenticeship Programs


The plant, shop, premises of the employer or firm
concerned if the apprenticeship program is
organized by an individual employer or firm.
The premises of one or several firms designated
for the purpose by the organizer of the program if
such organizer is an association of employers,
civic groups and the like.
DOLE training center or other public training
institutions with which the Bureau has made
appropriate arrangements.
Contents of Learnership Agreement
1. names and addresses of employer and learner
2. occupation to be learned and the duration of the
training period which shall not exceed 3 months
3. wage of the learner which shall be at least 75%
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of the applicable
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4. commitment to employ the learner, if he so
desires, as a regular employee upon completion
of training

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 thorough no fault of
the learner.

V. WORKING CONDITIONS
Coverage
Book III of the Labor Code provides the conditions or
standards of employment. These standards apply
only if there exists EER.
Excluded Employees
1. Government employees whether employed by
the National Government or any of its political
subdivisions, including those employed in
GOCCs
2. Management employees. If they meet ALL of the
following conditions:
i. Their primary duty consists of the management
of the establishment in which they are
employed or of a department or subdivision
thereof
ii. They customarily and regularly direct the work
of two or more employees therein
iii. They have authority to hire or fire other
employees of lower rank; or there suggestions
and recommendations as to the hiring and
firing and as to the promotion or any other
change of status of other employees are given
particular weight
3. Officers or members of managerial staff if they
perform the following duties and responsibilities
i. Primary duty consists of performance of work
directly related to management policies of
employer
ii. Customarily and regularly exercise discretion
and independent judgment
iii. (a) Regularly and directly assist a proprietor
or a managerial employee; (b) Execute under
general supervision work along specialized
or technical lines requiring special training,
experience or knowledge; (c) execute under
general supervision special assignments and
tasks; and
iv. who do not devote more than 20% of their
hours worked in a workweek to activities
which are not directly and closely related to
the performance of work in i-iii above.
4. domestic servants and persons in the personal
service of another if
i.
they perform such services in the employers
home which are usually necessary or
desirable for the maintenance and enjoyment
thereof, or
ii.
minister
to
the
personal
comfort,
convenience, or safety of the employer as
well as members of the employers
household
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5. workers paid by results, including those who are
paid on piece-work, takaw, pakyaw or task basis
6. non-agricultural field personnel if they regularly
perform their duties away from the principal or
branch office of place of business and whose
actual hours of work in the field cannot be
determined with reasonable certainty.
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 non-agricultural employees who


regularly perform their duties away from the principal
place of business or branch office of the employer
and whose actual hours of work in the field cannot be
determined with reasonable certainty
Mercidar Fishing Corp. v. NLRC, 297 SCRA 440
(1998)
Fishermen are not field personnel since
throughout the duration of their work, they are under
the effective control and supervision of the employer.
Autobus Transport Systems Inc. v. Bautista, GR
No. 156367, 16 May 2005)
It is of judicial notice that along the routes that
are plied by bus companies, there are its inspectors
assigned in strategic places, mandatory once-a-week
car barn or shop day, drivers/conductors must be at a
specific place at a specific time, as they generally
observe prompt departure and arrival from their point
of origin to their point of destination. They are under
the constant supervision while in the performance of
this work. Thus, drivers/conductors are not field
personnel.
B. HOURS OF WORK

Work hours shall not exceed 8. Thus, part-time


work, or a days work of less than 8 hours, not
prohibited.

Work Day 24-hr period commencing from the time


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an employee regularly
starts
to
work regardless of
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whether the work is broken or continuous
Calendar Day 24-hr. period commencing at 12
midnight and ending at 11:59 p.m.
Compressed Work Week (CWW)
Resorted to by the employer to prevent serious
losses due to causes beyond his control, such as
when there is substantial slump in demand for his

goods and services or when there is lack of raw


materials.
Instead of working 6 days a week, the employees
will be regularly working for less than 6 days but
each workday exceeds 8 hrs. For the hours
exceeding 8 in a workday, the employees waive
their OT pay because, in return, they will no
longer incur transport and other expenses.
Allowed on condition that it is freely agreed upon
between the employer and majority of the
employees. Further, the arrangement should not
diminish the employees monthly or daily pay or
their established employment benefits.
Extended workday in CWW should not exceed 12
hrs. Work exceeding 12 hrs. in a day or 48 hrs. in
a week should be considered OT.
Should the work shift revert to 8 hrs., the
reversion shall not constitute a diminution of
benefits.

Hours of Work of Hospital and Clinic Personnel;


Coverage
1. all hospitals and clinics situated in cities or
municipalities with a population of 1 million or
more
2. all hospitals and clinics with a bed capacity of at
least 100
Hospitals and Clinics place devoted primarily to
maintenance and operation of facilities for the
diagnosis, treatment, and care of individuals suffering
from illness, disease, injury or deformity or in need of
obstetrical or other medical and nursing care
Regular Working Hours and Days of Hospital and
Clinic Personnel
Not more than 8 hrs. in any one day and not
more than 40 hrs. in any one week
Not more than 5 days in a work week. The
workweek may begin at any hour and on any day
Overtime Work of Hospital and Clinic Personnel
May be scheduled to work for more than 5 days
or 40 hrs. a week, provided employee is paid for
overtime work
Overtime: additional compensation of regular
wage + at least 30% thereof
Considered as Compensable Hours Worked
1. All time during which an employee required to be
on duty or to be at the employers premises or to
be at a prescribed work place; and
2. All time during which an employee suffered or
permitted to work.
3. Rest periods of short duration during working
hours.
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Principles in Determining Hours Worked
1. All hours are hours worked which the employee
is required to give to his employer, regardless of
whether or not such hours are spent in productive
labor or involve physical or mental exertion
2. An employee need not leave the premises of the
workplace in order that his rest period shall not
be counted, it being enough that he stops
working, may rest completely and may leave his
workplace
3. If the work performed was necessary or it
benefited the employer, or the employee could
not abandon his work at the end of his normal
working hours because he had no replacement,
all time spent or such work shall be considered
as hours worked, if the work was with the
knowledge of his employer or immediate
supervisor.
4. The time during which an employee is inactive by
reason of interruptions in his work beyond his
control shall be considered working time either if
a. the imminence of the resumption of work
requires the employee's presence at the
place of work; or
b. if the interval is too brief to be utilized
effectively and gainfully in the employee's
own interest.
Waiting Time
Waiting time spent by an employee shall be
considered as working time if
1. waiting is an integral part of his work or
2. the employee is required or engaged by the
employer to wait.
Working while on call - an employee who is
required to remain on call in the employer's
premises or so close thereto that he cannot use
the time effectively and gainfully for his own
purpose.
Travel Time
Travel that is
Travel Away
All in Days
from Home
Work
Normal travel from Time spent by Travel that
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home to work
an employee
keeps an
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are needed to see this picture.
which is not work
in travel as
employee
time
part of his
away from
principal
home
activity, like
overnight
travel from
jobsite to
jobsite during
the workday
GR: not
Compensable Work time
Travel From
Home to Work

compensable
because it is a
normal incident of
employment
Exceptions:
1. where
employee
made to work
on an
emergency
call and travel
is necessary in
proceeding to
the workplace
2. travel is done
through a
conveyance
provided by
the employer
3. travel is done
under the
supervision
and control of
the employer
4. travel is done
under vexing
and
dangerous
circumstances

and counted
as hours
worked

when it cuts
across an
employees
workday
because it
substitutes for
the hours the
employee
should have
been in the
office

Univ. of Pangasinan Faculty Union v. Univ. of


Pangasinan, 127 SCRA 691 (1984)
Semestral break of teachers is compensable
hours worked for it is a form of interruption beyond
their control. Applies only for regular full-time
teachers.
Rada v. NLRC, 205 SCRA 69 (1992)
The fact that he picks up employees at certain
specified points in EDSA in going to the project site
and drops them off at the same time on his way back
from the field office going home to Marikina is not
merely incidental to petitioners job as a driver.
Said transportation arrangement had been
adopted not so much for the convenience of the
employees, but primarily for the benefit of the
employer. Since the assigned task of fetching and
delivering
employees
is
indispensable
and
consequently mandatory, then the time required of
and used by petitioner in going from his residence to
the field office and back should be paid as overtime
work.
Lectures, Meeting, Trainings, Programs

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NOT considered working time if ALL the following


conditions are met:
1. Attendance is outside of the employee's
regular working hours
2. Attendance is in fact voluntary
3. The employee does not perform any
productive work during such attendance.

Meal and Rest Periods


GR: not less than 1 hour time-off for regular meals
non-compensable
Except: meal period of not less than 20 mins. in the
following cases compensable hours worked:
1. Where the work is non-manual work in nature or
does not involve strenuous physical exertion
2. Where the establishment regularly operates not
less than 16 hours a day
3. In case of actual or impending emergencies or
there is urgent work to be performed on
machineries, equipment or installations to avoid
serious loss which the employer would otherwise
suffer
4. Where the work is necessary to prevent serious
loss of perishable goods

Rest periods or coffee breaks running from 5


to 20 mins. considered as compensable working
time.
To shorten meal time to less than 20 mins, is not
allowed. If the so-called meal time is less than
20 mins., it becomes only a rest period.

Sime Darby Pilipinas v. NLRC, 289 SCRA 86


(1998)
The employer may change the meal break from
30 mins. fully paid to 60 mins. without pay.
For a full one hour undisturbed lunch break, the
employees can freely and effectively use this hour
not only for eating but also for their rest and comfort.
Since the employees are no longer required to work
during this 1-hour lunch break, there is no more need
for them to be compensated for this period.
Overtime Pay (OT) work exceeding eight hours
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within the workers TIFF
24-hour
workday.
Work within the
(Uncompressed)
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are needed to see this picture.
Eees shift is not overtime.

OT on a Regular Day: regular wage + at least


25% thereof
OT on a Holiday/Eees Rest Day: rate of 1st 8
hrs. on holiday/rest day + at least 30% thereof.
Since the OT work is considered hourly, the pay
rate is computed also on per hour basis. The

daily wage is divided by 8 to get the hourly base


rate.
If employee is paid on a monthly salary basis, the
daily rate is obtained by the following formula:
Daily Rate =

monthly salary x 12_____


Total no of days considered
paid in a year

Permissible for the employer to stipulate that the


employees monthly salary constitutes payment
for all the days of the month, including rest days
and holidays, where the employees monthly
salary, when converted by the increased divisor
into its daily equivalent, would still meet minimum
wage.

Regular Wage includes the cash wage only,


without deduction on account of facilities provided by
the employer
Conditions to be entitled to OT pay
1. Actual rendition of OT work
2. Submission of sufficient proof that said work was
actually performed
3. OT work is with the knowledge and consent of
the employer
Compulsory OT Work (provided employee paid
the additional compensation required)
1. Country at war/National or Local Emergency
th
2. Completion of work started before the 8 hour
and is necessary to prevent serious obstruction
or prejudice to the business
3. Urgent work to be performed on Machines to
avoid serious loss or damage to employer
4. Necessary to Prevent loss of life/property or
Imminent danger to public safety
5. Necessary to prevent loss or damage to
perishable goods
6. Necessary to avail of favorable weather or
environmental condition
Undertime NOT Offset by OT an employees
regular pay rate is lower than the OT rate. Offsetting
the undertime hours against the OT hours would
result in undue deprivation of the employees extra
pay for OT work.

Right to OT pay cannot be waived. But when the


alleged waiver of OT pay is in consideration of
benefits and privileges which may even exceed
the OT pay, the waiver may be permitted.

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Night Shift Differential (NSD) every employee
shall be paid a night shift differential of not less than
10% of his regular wage for each hour of work
performed between ten oclock in the evening and six
oclock in the morning.

NSD = (10% x regular wage/hr.) x no. of hrs. of work


between 10 pm 6 am

If work done between 10 pm and 6 am is OT


work, the NSD should be based on the OT rate.

Employees NOT Covered by NSD


1. Those of the government and any of its political
subdivisions, including government-owned and/or
controlled corporations
2. Those of retail and service establishments
regularly employing not more than 5 workers
3. Domestic helpers and persons in the personal
service of another
4. Managerial employees
5. Field personnel and other employees whose time
and performance is unsupervised by the
employer including those who are engaged on
task or contract basis, purely commission basis,
or those who are paid a fixed amount for
performing work irrespective of the time
consumed in the performance thereof
C. REST PERIODS AND HOLIDAYS
Weekly Rest Periods applies to all employers
whether operating for profit or not, including public
utilities operated by private persons
Business
on
Sundays/Holidays

All
establishments and enterprises may operate or open
for business on Sundays and holidays provided that
the employees are given the weekly rest day and the
benefits as provided.
Weekly Rest Day Every employer shall give his
employees a rest period of not less than 24
consecutive hrs. after every 6 consecutive normal
work days.
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Preference of employee The preference of the


employee as to his weekly day of rest shall be
respected by the employer if the same is based on
religious grounds.

The employee shall make known his preference


to the employer in writing at least 7 days before

the desired effectivity of the initial rest day so


preferred.
Where, however, the choice of the employee as
to his rest day based on religious grounds will
inevitably result in serious prejudice or
obstruction to the operations of the undertaking
and the employer cannot normally be expected to
resort to other remedial measures, the employer
may so schedule the weekly rest day of his
choice for at least 2 days in a month.

Schedule of Rest Day


a. Where the weekly rest is given to all employees
simultaneously the employer shall make known
such rest period by means of a written notice
posted conspicuously in the work place at least
one week before it becomes effective
b. Where the rest period is not granted to all
employees simultaneously and collectively the
employer shall make known to the employees
their respective schedules of weekly rest through
written notices posted conspicuously in the work
place at least one week before they become
effective
Work on Rest Day Authorized (UAAP NAF)
1. In case of urgent work to be performed on
machineries, equipment or installations to avoid
serious loss which the employer would otherwise
suffer
2. 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 or property, or in
cases of force majeure or imminent danger to
public safety
3. In the event of abnormal pressure of work due
to special circumstances, where the employer
cannot ordinarily be expected to resort to other
measures
4. To prevent serious loss of perishable goods
5. Where the nature of the work is such that the
employees have to work continuously for 7 days
in a week or more, as in the case of the crew
members of a vessel to complete a voyage and
in other similar cases
6. Under other analogous or similar circumstances
7. When the work is necessary to avail of favorable
weather or environmental conditions where
performance or quality of work is dependent
thereon.

Other than the above circumstances, no


employee shall be required against his will to
work on his scheduled rest day.
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When an employee volunteers to work on his rest


day under other circumstances, he shall express
such desire in writing, subject to payment of
additional compensation.
An employee shall be entitled additional
compensation for work performed on a Sunday
only when it is his established rest day.

Holidays with Pay; Applies to ALL employees.


EXCEPT:
1. Those of the government and any of the political
subdivision, including government-owned and
controlled corporation
2. Those of retail and service establishments
regularly employing less than ten 10 workers
3. Domestic helpers and persons in the personal
service of another
4. Managerial employees
5. Field personnel and other employees whose time
and performance is unsupervised by the
employer including those who are engaged on
task or contract basis, purely commission basis,
or those who are paid a fixed amount for
performing work irrespective of the time
consumed in the performance thereof.
Absences
Employee on Leave of absence with pay
entitled to the benefit provided herein
Employee 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
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

vacations. Paid for the regular holidays during


Christmas vacation
2. Employee paid by results (payment on piecework) holiday pay shall not be less than his
average daily earnings for the last 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
3. Seasonal workers may not be paid the
required holiday pay during off-season when they
are not at work
4. Workers without regular working days
entitled to the benefits
Double Holiday an employee who is entitled to
holiday pay should receive at least 200% of his basic
wage even if he did not work on that day, provided,
he was present or on leave wit pay on the preceding
work day. If he worked, he is entitled to 300% of his
basic wage.
Holiday-Sunday a legal holiday falling on a
Sunday creates no legal obligation for the employer
to pay extra, aside from the usual holiday pay, to its
monthly-paid employees
Successive Regular Holidays Where there are 2
successive regular holidays, like Holy Thursday and
Good Friday, an employee may not be paid for both
holidays if he absents himself from work on the day
immediately preceding the first holiday, unless he
works on the first holiday, in which case he is entitled
to his holiday pay on the second holiday. To be
entitled to 2 successive holidays, employee must: (1)
st
be present on the day immediately preceding the 1
holiday; or (2) be on leave wit pay.

TIFF (Uncompressed) decompressor


Temporary or Periodic
Shutdown
are needed
to see this picture.and Temporary
Cessation of Work Due to Business Reverses
employer may not pay the regular holidays during this
period

Holidays
1. New Years Day
2. Maundy Thursday
3. Good Friday
4. Araw ng Kagitingan
5. Labor Day
6. Independence Day
7. Natl Heroes Day
8. Bonifacio Day
9. Eidul Fitr
10. Christmas Day
11. Rizal Day

Holiday Pay of Certain Employees


1. Private School teachers including faculty
members of college and universities may not
be paid for the regular holidays during semestral

Special Days
1. Special Non-Working Days
2. Special Public Holidays
3. Special National Holiday

Temporary or Periodic Shutdown and Temporary


Cessation of Work (i.e. yearly inventory, repair or
cleaning of machineries or equipment, etc) regular
holidays falling within this period compensable
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Jan. 1
Movable Date
Movable Date
April 9
May 1
June 12
Last Sun. of Aug.
Nov. 30
Movable Date
Dec. 25
Dec. 30

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4. All Saints Day
5. Last Day of the Yr 6. Ninoy Aquino Day -

Nov. 1
Dec. 31
August 21

Muslim Holidays while the regular holidays are


observed in the whole country, the Muslim holidays,
except Eidul Fitr, are observed only in specified
areas. Muslim employees working outside of the
specified areas shall be excused from reporting for
work during the observance of the Muslim holidays
as recognized by law, without diminution of salary or
wages during the period.
Rules on Payment of Holiday Pay:
1. REGULAR HOLIDAYS
a. If it is employees regular work day:
- Unworked:
100%
- Worked:
st
200%
1 8 hrs
excess of 8 hrs.
+ 30%
of hourly rate
on said day
b. If it is employeees rest day:
- Unworked:
100%
- Worked:
- + 30% of 200%
1st 8 hrs.
excess of 8 hrs.
+ 30% of
hourly rate on said
day
2. SPECIAL DAYS
a. Unworked no pay unless there is a favorable
company policy, practice or CBA granting
payment of wages on special days even if
unworked
b. Worked

st
1 8 hrs.

+ 30% of the
daily rate of 100%
excess of 8 hrs. + 30% of
hourly rate on said
day

c. Falling on employees
rest day
QuickTime
and a and if worked
(Uncompressed) decompressor
8 are
hrs.
+ 50% of the
1st TIFF
needed to see this picture.
daily rate of 100%
excess of 8 hrs. + 30% of
hourly rate on said
day
3. SPECIAL WORKING HOLIDAYS only basic rate.

D. SERVICE CHARGE &


SERVICE INCENTIVE LEAVE
Service Incentive Leave (SIL) every employee
who has rendered at least 1 year of service shall be
entitled to a yearly service incentive leave of 5 days
with pay

Commutable to its money equivalent if not used


or exhausted at the end of the year.

At least 1 year service service for not less than 12


months, whether continuous or broken reckoned from
the date the employee started working, including
authorized absences and paid regular holidays
unless the working days in the establishment as a
matter of practice or policy, or that provided in the
employment contract is less than 12 months, in which
case said period shall be considered as one year
Employees NOT Covered
1. Those of the government and any of its political
subdivisions, including government-owned and
controlled corporations
2. Domestic helpers and persons in the personal
service of another
3. Managerial employees
4. Field personnel and other employees whose
performance is unsupervised by the employer
including those who are engaged on task or
contract basis, purely commission basis, or those
who are paid a fixed amount for performing work
irrespective of the time consumed in the
performance thereof
5. Those who are already enjoying the benefit
herein provided
6. Those enjoying vacation leave with pay of at
least five days
7. Those employed in establishments regularly
employing less than ten employees
Service Charges apply only to establishments
collecting service charges such as hotels,
restaurants, lodging houses, night clubs, cocktail
lounge, massage clinics, bars, casinos and gambling
houses, and similar enterprises, including those
entities operating primarily as private subsidiaries of
the Government
Employees Covered all employees of covered
employers, regardless of their positions, designations
or employment status, and irrespective of the method
by which their wages are paid EXCEPT to
managerial employees

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Distribution
85% distributed equally among the covered
employees
15% for the disposition by management to
answer for losses and breakages and distribution
to managerial employees at the discretion of the
management in the latter case
distributed and paid to the employees not less
than once every 2 weeks or twice a month at
intervals not exceeding 16 days
Supervisors share in the 15%. LC speaks of
management, and not managerial employees.
E. OTHERS
Vacation Leave (VL) / Sick Leave (SL) not
required by law and depends on voluntary employer
policy or collective bargaining.
Solo Parent Leave (RA 8972: Solo Parents
Welfare Act of 2000) a parental leave of not more
than 7 working days every years shall be granted to
any solo parent employee who has rendered service
of at least 1 year

Solo Parent woman who gives birth as a result


of rape or crimes against chastity, a widow or
widower, a spouse separated legally or de facto
for at least one year, and so forth. The claimant
parent has to show that he/she is left alone with
the responsibility of parenthood.

Leave under RA 9262 (Anti-Violence Against


Women and their Children Act of 2004) allows
the victim of violence, which may be physical, sexual,
or psychological, to apply for the issuance of a
protection order. If such victim is an employee, she is
entitled to a paid leave of up to 10 days in addition to
other paid leaves under the Labor Code, other laws
and company policies.

The employee has to submit a certification from


the Punong Barangay or Kagawad or prosecutor
or Clerk of Court that an action under RA 9262
has been filed and is pending.
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VI. WAGES
A. CONCEPT AND DEFINITION
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
Wage paid to any employee shall mean the:
1. 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
2. the fair and reasonable value, as determined by
the DOLE Secretary, 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.
Fair Wage for Fair Work; No Work No Pay
Principle if there is no work performed by the
employee, there can be no wage or pay unless the
laborer was able, willing, and ready to work but was
prevented by management or was illegally locked
out, suspended or dismissed. But where the failure of
employees to work was not due to the employers
fault, the burden of economic loss suffered by the
employees. Should not be shifted to the employer.
Each party must bear his own loss.
Equal Pay for Equal Work persons who work with
substantially equal qualifications, skill, effort and
responsibility, under similar conditions, should be
paid similar salaries.
Facilities 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 the employer or necessary to the conduct of the
employers business. May be deducted from the
employees wages.
Acceptance of Facilities in order that the cost of
facilities furnished by the employer may be charged
against an employee, the employees acceptance of
such facilities MUST BE VOLUNTARY.
Mabeza v. NLRC, 271 SCRA 670 (1997)
Requirements for deducting value of facilities:
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1. Proof must be shown that such facilities are
customarily furnished by the trade
2. The provision of deductible facilities must be
voluntarily accepted in writing by the employee
3. The facilities must be charged at fair and
reasonable value

therein, with a salary of not less than the statutory or


established minimum wage, shall be presumed to be
paid for all the days in the month whether worked or
not. The monthly min. wage shall not be less than the
statutory minimum wage multiplied by 365 days
divided by 12.

Facilities
items of expense
necessary for the
laborers and his familys
existence and
subsistence

Agricultural Rate farm work from land preparation


to harvesting

part of the wage


deductible from the wage

Supplements
extra remuneration or
special privileges or
benefits given to or
received by the
employees over and
above their ordinary
earnings or wages.
independent of the wage
not wage deductible

Employees NOT Covered by Provisions on


Wages
1. farm tenancy / leasehold
2. domestic service
3. persons working in their respective homes in
needle work or in any cottage industry duly
registered in accordance with law
4. Barangay micro business enterprise (BMBE)
under RA 9178, the BMBE Law. BMBE any
business entity or enterprise engaged in the
production, processing, or manufacturing of
products or commodities, including agroprocessing, trading and services, whose total
assets including those arising from loans but
exclusive of the land on which the particular
business entitys office, plant and equipment are
situated, shall not be more than P3M
B. WAGE-FIXING
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
Minimum Wage lowest wage rate fixed by law that
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minimum wages is not dependent on the employers
ability to pay
Daily-Paid Employee paid only for days he
actually worked
Monthly-Paid Employee employees paid by the
month, irrespective of the number of working days

Industrial Rate manufacturing or processing of


farm products
Non-Diminution Rule
GR: Nothing in the Labor Code shall be construed to
eliminate or in any way diminish supplements, or
other employee benefits being enjoyed at the time of
promulgation of the Labor Code. Benefits being given
to employees shall not be taken back or reduced
unilaterally by the employer because the benefit has
become part of the employment contract, written or
unwritten.
Exception: To correct an error, otherwise, if the
error is left uncorrected for a reasonable period of
time, it ripens into a company policy and employees
can demand for it as a matter of right.
When Non-Diminution Rule Applicable The rule
is applicable if it is shown that the grant of the benefit
is
1. based on an express policy
2. has ripened into practice over a long period of
time; and the practice is consistent and
deliberate, and is not due to an error in the
construction/application of a doubtful or difficult
question of law
Bonus a benefit which is contingent or conditional;
its demandability depends on certain pre-conditions.

It is an amount granted voluntarily to an


employee for his/her industry and loyalty which
contributed to the success and realization of
profits of the employers business.
It is not a demandable and enforceable obligation
unless it was promised to be given without any
conditions imposed for its payment in which case
it is deemed part of the wage.

Payment by Results regulated by DOLE Secretary


to ensure the payment of fair and reasonable wage
rates, preferably through time and motion studies or
in consultation with representatives of workers and

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employers organizations. Includes pakyaw, piece
work and other noontime work.
Two Categories of Piece-Rate Employees
1. Employees paid piece rates which are prescribed
in Piece Rate orders issued by DOLE wages
are determined by multiplying the number of
pieces produced by the pay rate per piece.
2. Employees paid output rates which are
prescribed by the employer and are not yet
approved by the DOLE to determine wage, the
number of pieces produces is multiplied by the
rate per piece as determined by the employer. If
the result is equal to or greater than the
applicable legal daily rate in proportion to the
number of hours worked, the worker receives
such increased amount. If the amount is lower,
the employer must make up the difference.
Benefits Payable to Piece-Rate Workers
(HANS MOTO)
1. Holiday Pay
2. Applicable Statutory Minimum Daily Rate
3. Night Differential Pay
4. Service Incentive Leave
5. Meal and Rest Periods
6. Overtime and Premium Pay
7. Thirteenth Month Pay
8. Other Benefits

Regional Tripartite Wages and Productivity


Boards
1. Determine and fix minimum wage rates
applicable in their regions, provinces or industries
therein and to issue the corresponding wage
orders, subject to guidelines issued by the
National Wages and Productivity Commission.
2. Develop plans, programs and projects relative to
wages, incomes and productivity improvement for
their respective regions
3. Receive, process and act on applications for
exemption from prescribed wage rates as may be
provided by law or any Wage Order
4. Other functions
Composition of Each Regional Board
1. Regional Director of DOLE
2. Regional Director of NEDA
3. Regional Director of DTI
4. 2 members from Employer sector
5. 2 members from Employee sector
Wage Order an order issued by the Regional
Board whenever the conditions in the region so
warrant after studying and investigating and studying
all pertinent facts and based on the standards and
criteria prescribed by the Labor Code.

Basic Wage means all remuneration or earnings


paid by an employer to a worker for services
rendered on normal working days and hours but does
not include cost-of-living allowances, profit sharing
payments, premium payments, 13th month pay or
other monetary benefits which are not considered as
part of or integrated into the regular salary of the
workers
Minimum Wage lowest wage rate fixed by law than
an employer can pay his employees
Who Sets Minimum Wage
1. Regional Tripartite Wages and Productivity Board
2. Congress
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National Wages and


Productivity
Commission
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1. Prescribes rules and guidelines for the
determination of appropriate minimum wage and
productivity measures at the regional, provincial,
or industry levels
2. Reviews regional wage levels set by the Regional
Tripartite Wages and Productivity Boards to
determine if these are in accordance with
prescribed guidelines and national development
plans

A wage order adjusts the minimum level but not


the levels above the minimum. It does not
mandate across the board salary increase.

Employees NOT Covered


1. Household or domestic helpers, including family
drivers and workers in the personal service of
another
2. Workers and employees in retail/service
establishments regularly employing not more
than 10 workers, when exempted from
compliance, for a period fixed by the
Commission/Boards
3. Workers and employees in new business
enterprises outside the National Capital Region
and export processing zones for a period of not
more than two or three years, as the case may
be, from the start of operations when exempted
Effectivity of Wage Orders takes effect after 15
days from its complete publication in at least one
newspaper of general circulation in the region
Public Hearings and Consultations Mandatory
notice must be given to employees and employers

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groups, provincial, city and municipal officials and
other interested parties.

A wage order issued without the required public


consultation and newspaper publication is null
and void.

Frequency a wage order issued by the Board may


not be disturbed for a period of 12 months from its
effectivity and no petition for wage increase shall be
entertained during said period EXCEPT when
Congress itself issues a law increasing wages.

2. Any dispute arising should be resolved through


grievance procedure under CBA
3. If dispute remains unresolved, through voluntary
arbitration
B. UNORGANIZED ESTABLISHMENT
1. The employer and employees shall endeavor to
correct the distortion
2. Any dispute shall be settled through National
Conciliation and Mediation Board (NCMB)
3. If remains unresolved after 10 days of
conciliation, it shall be referred to the NLRC

Standards/Criteria
for
Minimum
Wage
Fixing must be economically feasible to maintain
the minimum standards of living necessary for the
health, efficiency and general well-being of the
employees within the framework of the national
economic and social development program. Factors
to Consider:

Amount of Distortion Adjustment the restoration


of the previous pay advantage is the aim but not
necessarily to the last peso. Restoration of
appreciable differential, a significant pay gap, should
suffice as correction.

1. The demand for living wages


2. Wage adjustment vis--vis the consumer price
index
3. The cost of living and changes or increases
4. The needs of workers and their families
5. The need to induce industries to invest in the
countryside
6. Improvements in standards of living
7. The prevailing wage levels
8. Fair return of the capital invested and capacity to
pay of employers
9. Effects on employment generation and family
income
10. The equitable distribution of income and wealth
along the imperatives of economic and social
development

Minimum Wage = % x Prescribed Increase Actual


Salary

Wage Distortion a situation where an increase in


prescribed wage rates results in the elimination or
severe contraction of intentional quantitative
differences in wage or salary rates between and
among employee groups in an establishment as to
effectively obliterate the distinctions embodied in
such wage structure based on skills, length of service
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or other logical basis
of differentiation.
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pay advantage of a position over another is removed
or significantly reduced by a pay adjustment required
by a wage order, such pay advantage should be
restored.
Correction of Wage Distortion
A. ORGANIZED ESTABLISHMENT
1. Employer and union shall negotiate to correct the
distortion

Suggested Formula to Correct a Salary Distortion

Prubankers Association v. Prudential Bank and


Trust Co., 302 SCRA 74 (1999)
Wage distortion involves comparison of jobs
located in the same region. Examination of alleged
salary distortion is limited to jobs or positions in the
same employer in the same region; thus, the
comparison of salaries has to be intra-region, not
inter-region.
Bankard Employees Union WATU v. NLRC, GR
No. 140689, 17 February 2004
The distortion that should be rectified refers to
distortion arising from compliance with a government
wage order. It does not refer to distortion caused by
salary revisions voluntarily initiated by the employer
unless such a duty exists because of a CBA
stipulation or company practice.
C. PAYMENT OF WAGES
Manner of wage payment wages shall be paid in
legal tender and the use of tokens, promissory notes,
vouchers, coupons, or any other form alleged to
represent legal tender is absolutely prohibited even
when expressly requested by the employee.
Payment by check Payment of wages by bank
checks, postal checks or money orders is allowed
where

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1. such manner of wage payment is customary on
the date of the effectivity of the Labor Code,
2. where it is so stipulated in a collective
agreement, or
3. where all of the following conditions are met:
a. There is a bank or other facility for
encashment within a radius of 1 kilometer
from the workplace
b. The employer or any of his agents or
representatives does not receive any
pecuniary benefit directly or indirectly from
the arrangement
c. The employees are given reasonable time
during banking hours to withdraw their wages
from the bank which time shall be considered
as compensable hours worked if done during
working hours
d. The payment by check is with the written
consent of the employees concerned if there
is no collective agreement authorizing the
payment of wages by bank checks
Time of payment
GR:
1. not less than once every 2 weeks; or
2. twice a month at intervals not exceeding 16 days
Except:
1. In case payment cannot be made with such
regularity due to force majeure or circumstances
beyond the employer's control the employer
shall pay the wages immediately after such force
majeure or circumstances have ceased.
2. In case of payment of wages by results involving
work which cannot be finished in 2 weeks,
payment shall be made at intervals not exceeding
sixteen days in proportion to the amount of work
completed. Final settlement shall be made
immediately upon completion of the work.
Place of payment the place of payment shall be at
or near the place of undertaking. Payment in a place
other than the work place shall be permissible only
under the following circumstances:
1. When payment cannot be effected at or near the
place of work by reason of the deterioration of
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actual or impending
emergencies
flood, epidemic or other calamity rendering
payment thereat impossible
2. When the employer provides free transportation
to the employees back and forth
3. Under any other analogous circumstances;
Provided, That the time spent by the employees
in collecting their wages shall be considered as
compensable hours worked

Prohibited Place of Payment bar, night or day


club, drinking establishment, massage clinic, dance
hall, or other similar places or in places where games
are played with stakes of money or things
representing money except in the case of persons
employed in said places
Payment through Banks; Requisites
1. There must be a written permission of the
majority of the employees concerned in an
establishment
2. The establishment must have 25 or more
employees
3. The establishment must be located within 1 km.
radius to the bank.
Payment through ATM allowed
Direct Payment of Wages
GR: paid directly to workers to whom they are due
Exceptions:
1. Payment Through Another Person
a. In case of force majeure rendering such
payment impossible provided such person is
under written authority given by the worker
for the purpose
b. When authorized under existing law
including:
i. payments for the insurance premiums of
the employee
ii. union dues where the right to check-off
has been recognized by the employer in
accordance with a collective agreement
iii. authorized in writing by the individual
employees concerned
2. Payment Through Heirs of Worker in case the
worker has died, employer may pay wages of the
deceased to the heirs of the latter without
necessity of intestate proceedings
Procedure:
1. When the heirs are of age, they shall execute an
affidavit attesting to their relationship to the
deceased and the fact that they are his heirs to
the exclusion of all other persons.
2. In case any of the heirs is a minor, such affidavit
shall be executed in his behalf by his natural
guardian or next of kin.
3. Affidavit shall be presented to the employer who
shall make payment through the DOLE Sec. or
his representative
4. Payment of wage shall absolve the employer of
any other liability with respect to the amount paid.
3. Payment through Member of Workers Family
where the employer is authorized in writing by the
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employee to pay his wages to a member of his
family
Non-interference in Disposal of Wages No
employer shall limit or otherwise interfere with the
freedom of any employee to dispose of his wages
and no employer shall in any manner oblige any of
his employees to patronize any store or avail of the
services offered by any person.
Wage Deductions
GR: NOT allowed
Except:
1. In cases where the worker is insured with his
consent by the employer, and the deduction is to
recompense the employer for the amount paid by
him as premium on the insurance
2. For union dues, in cases where the right of the
worker or his union to check-off has been
recognized by the employer or authorized in
writing by the individual worker concerned
3. In cases where the employer is authorized by law
or regulations issued by the DOLE Secretary
Other Allowable Deductions
1. In cases where employee indebted to employer,
where such indebtedness has become due and
demandable
2. In court awards, wages may be the subject of
execution or attachment, but only for debts
incurred for food, shelter, clothing, and medical
attendance
3. Withholding Tax
4. Salary deductions of a legally established
cooperative
5. Deductions for payment to 3rd persons, upon
written authorization of the employee
6. Union dues
7. Agency fee
8. Deductions for value of meals and other facilities
9. Deductions for loss or damage
10. SSS, Medicare, Pag-IBIG premiums
Deductions for Loss or Damage
GR: No employer shall require his worker to make
deposits for the reimbursement
of loss of or damage
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employer.
Except: When the trade, occupation or business of
the employer recognizes or considers the practice of
making deductions or requiring deposits necessary or
desirable.
Requisites for Valid Deduction for Loss/Damage

1. The employee concerned is clearly shown to be


responsible for the loss or damage
2. The employee is given reasonable opportunity to
show cause why deduction should not be made
3. The amount of such deduction is fair and
reasonable and shall not exceed the actual loss
or damage
4. The deduction from the wages of the employee
does not exceed 20% of the employee's wages in
a week
Prohibited / Unlawful Acts
1. Withhold any amount from the wages of a worker
or induce him to give up any part of his wages by
force, stealth, intimidation, threat or by any other
means whatsoever without the workers consent.
2. Deduction from the wages of any employee for
the benefit of the employer or his representative
or intermediary as consideration of a promise of
employment or retention in employment.
3. Refuse to pay or reduce the wages and benefits,
discharge or in any manner discriminate against
any employee who has filed any complaint or
instituted any proceeding under this Title or has
testified or is about to testify in such proceedings.
4. Make any statement, report, or record filed or
kept pursuant to the provisions of this Code
knowing such statement, report or record to be
false in any material respect.
D. LIABILITY FOR WAGES
Worker Preference in Case of Employers
Bankruptcy workers shall enjoy first preference as
regards their wages and other monetary claims, any
provisions of law to the contrary notwithstanding.
Such unpaid wages and monetary claims shall be
paid in full before claims of the government and other
creditors may be paid.

A declaration of bankruptcy or a judicial


liquidation must take place before the workers
preference may be enforced.
Establishes a preference of credit and NOT a
lien.

Attorneys Fees
1. In case of unlawful withholding of wages, the
culpable party may be assessed attorneys fees
equivalent to ten percent of the amount of wages
recovered.
2. It shall be unlawful for any person to demand or
accept, in any judicial or administrative
proceedings for the recovery of wages, attorneys

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fees which exceed ten percent of the amount of
wages recovered.

VII. WORKING CONDITIONS FOR SPECIAL


GROUPS OF EMPLOYEES
A. WOMEN
Night Work Prohibition no woman regardless of
age shall be employed or permitted or suffered to
work, with or without compensation in any:
1. In any industrial undertaking or branch thereof between 10 pm 6 am of the following day; or
2. In
any
commercial
or
non-industrial
undertaking or branch thereof, other than
agricultural - between 12 mn 6 am of the
following day; or
3. In any agricultural undertaking at nighttime
unless she is given a period of rest of not less
than nine (9) consecutive hours.
Exceptions: Prohibitions DO NOT APPLY
1. In cases of actual or impending emergencies
caused by serious accident, fire, flood, typhoon,
earthquake, epidemic or other disasters or
calamity, to prevent loss of life or property, or in
cases of force majeure or imminent danger to
public safety;
2. In case of urgent work to be performed on
machineries, equipment or installation, to avoid
serious loss which the employer would otherwise
suffer;
3. Where the work is necessary to prevent serious
loss of perishable goods;
4. Where the woman employee holds a responsible
position of managerial or technical nature, or
where the woman employee has been engaged
to provide health and welfare services;
5. Where the nature of the work requires the
manual skill and dexterity of women workers and
the same cannot be performed with equal
efficiency by male workers;
6. Where the women employees are immediate
and a operating
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establishment or undertaking; and
7. Under other analogous cases exempted by the
Secretary of Labor and Employment in
appropriate regulations.
Facilities for Women
The DOLE Secretary may require employers to:
1. Provide seats proper for women and permit them
to use such seats when they are free from work

and during working hours, provided they can


perform their duties in this position without
detriment to efficiency
2. To establish separate toilet rooms and lavatories
for men and women and provide at least a
dressing room for women
3. To establish a nursery in a workplace for the
benefit of the women employees therein
4. To determine appropriate minimum age and
other standards for retirement or termination in
special occupations such as those of flight
attendants and the like
Maternity Leave (under RA 1161 SSS Law)
A female member, who need not be legally
married, who has paid for at least 3 monthly
contributions in the 12-month period immediately
preceding the semester of her childbirth or
miscarriage shall be paid a daily maternity benefit
equivalent to 100% of her average daily salary
credit for
o 60 days normal delivery
o 78 days caesarian delivery
Benefits shall be paid only for the FIRST 4
deliveries or miscarriages
Maternity benefits, like other benefits granted by
the SSS, are granted in lieu of wages and
therefore, may not be included in computing the
employees 13th month pay for the calendar year
The employer shall advance the payment subject
to reimbursement by the SSS.
It is not necessary that the woman be
impregnated by her legitimate husband. It is
immaterial who the father is.
Every pregnant woman in the private sector,
whether married or unmarried, is entitled to the
maternity leave benefits.
Paternity Leave (under RA 8187 Paternity Leave
Act of 1996)
Grants 7 working days of paternity leave with full
pay to married male employees in the private and
public sectors. (Sec. 1(a), RA 8187 IRR)
Conditions to entitlement:
a. The claimant, a married male employee, is
employed at the time of delivery of his child
b. He is cohabiting with his spouse at the time
she gives birth or suffers a miscarriage
c. He has applied for paternity leave
d. His wife has given birth or suffered a
miscarriage
Wife lawful wife; woman legally married to male
employee concerned
Family Planning Services; Incentives for Family
Planning employers who habitually employ more
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than 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
Discrimination Prohibited unlawful for any
employer to discriminate against any woman
employee with respect to terms and conditions of
employment solely on account of her sex
Acts of Discrimination
1. Payment of a lesser compensation, including
wage, salary or other form of remuneration and
fringe benefits, to a female employees as against
a male employee, for work of equal value
2. Favoring a male employee over a female
employee with respect to promotion, training
opportunities, study and scholarship grants solely
on account of their sexes
Person guilty of committing these acts are
criminally liable under Arts. 288-289 of the
Labor Code
That the institution of any criminal action
under this provision shall not bar the
aggrieved employee from filing an entirely
separate and distinct action for money
claims, which may include claims for
damages and other affirmative reliefs. The
actions hereby authorized shall proceed
independently of each other.
Stipulation Against Marriage
It shall be unlawful for the employer to:
1. require as a condition of employment or
continuation of employment that a woman
employee shall not get married
2. to stipulate expressly or tacitly that upon getting
married, a woman employee shall be deemed
resigned or separated
3. to actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely
by reason of her marriage

2. To discharge such woman employee on account


of her pregnancy, or while on leave or in
confinement due to her pregnancy
3. To discharge or refuse the admission of such
woman upon returning to her work for fear that
she may be pregnant
4. 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
5. 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
Classification of Certain Women Workers Any
woman who is permitted or suffered to work, with or
without compensation, in any night club, cocktail
lounge, 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 establishment for purposes of labor and social
legislation.
B. MINORS

PT&T Co. v. NLRC, 272 SCRA 596 (1997)


A woman worker may not be dismissed on the
ground of dishonesty forQuickTime
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contrary to the fact that she was married.

Not employed EXCEPT:


1. when the child works directly
under the sole responsibility of
his/her parents/legal guardian
who employs only members of
his/her family under the ff
conditions
a. employment does not
endanger the childs life,
safety, health and morals
b. employment does not
impair the childs normal
development; and
c. the parent/legal guardian
provides the child with
primary/secondary
education

Prohibited Acts
It is unlawful for any employer:
1. 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

2. when the childs employment or


participation in public
entertainment or information
through cinema, theater, radio
or television is essential,
provided that:

Below 15

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15 Below 18

18 years and
above

a. employment does not


involve advertisements or
commercials promoting
alcoholic beverages,
intoxicating drinks, tobacco
and its by-products or
exhibiting violence
b. there is a written contract
approved by the DOLE, if
possible
c. the conditions prescribed
for the employment of
minors in No. 1 are met
d. the following requirements
are complied with:
i. employer shall ensure
protection, health,
morals, and normal
development of the
child
ii. employer shall institute
measures to prevent
childs exploitation /
discrimination taking
into account the system
and level of
remuneration, duration,
and arrangement of
working time
iii. employer shall
formulate and
implement a continuing
program for training and
skills acquisition of the
child, subject to
approval and
supervision of
competent authorities
(as amended by RA 9231)
ALLOWED ONLY in: nonhazardous or non-deleterious
undertakings
No prohibition

Hazardous Workplaces
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dangerous
environmental
elements,
contaminants or work conditions
b. Workers are engaged in construction work,
logging, fire-fighting, mining, quarrying, blasting,
stevedoring, dock-work, deep sea fishing, and
mechanized farming
c. Workers are engaged in the manufacture or
handling of explosives and other pyrotechnic
products

d. Exposed to or use of heavy power-driven


machinery or equipment
e. Workers use or are exposed to power-driven
tools
C. HOUSEHELPERS
Domestic or Household Service services in the
employers home which is which is usually necessary
or desirable for the maintenance and enjoyment
thereof and includes ministering to the personal
comfort and convenience of the members of the
employers household, including services of family
drivers.
Rights of Househelpers
1. Not to be assigned to non-household work
2. Reasonable compensation (minimum cash wage)
3. Lodging, food and medical attendance
4. If under 18 years, an opportunity for elementary
education cost of which shall be part of
househelpers compensation
5. Contract for household service shall NOT
EXCEED 2 years renewable from year to year
6. Just and humane treatment
7. Right not to be required to work for more than 10
hrs. a day if the househelper agrees to work
overtime and there is additional compensation,
the same is permissible
8. Right to 4 days vacation each month with pay if
the helper does not ask for the vacation, the
number of vacation days cannot be accumulated,
he is only entitled only to its monetary equivalent.
9. Funeral expenses must be paid by the employer
if the househelper has no relatives with sufficient
means in the place where the head of the family
lives
10. Termination only for just cause
11. Indemnity for unjust termination of service
12. Employment certification as to nature and
duration of service and efficiency and conduct of
the househelper
Indemnity for Unjust Termination of Service
1. If the period for household service is fixed,
neither the employer nor the househelper may
terminate the contract before the expiration of the
term except for a just cause.
2. If the househelper is unjustly dismissed, he or
she shall be paid the compensation already
earned + that for 15 days by way of indemnity
3. If the househelper leaves without justifiable
reason, he or she shall forfeit any unpaid salary
due him/her not exceeding 15 days.

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Employment for Certification upon the severance
of the household service relationship, the
househelper may demand from the employer a
written statement of the nature and duration of the
service and his/her efficiency and conduct as
househelper
Apex Mining Co. Inc. v. NLRC, 196 SCRA 251
(1991)
The criteria are the personal comfort and
enjoyment of the family of the employer in the home
of said employer. While it may be true that the nature
of the work of a househelper, domestic servant or
laundrywoman in a home or in a company staffhouse
may be similar in nature, the difference in their
circumstances is that in the former instance they are
actually serving the family while in the latter case,
whether it is a corporation or a single proprietorship
engaged in business or industry or any other
agricultural or similar pursuit, service is being
rendered in the staffhouses or within the premises of
the business of the employer. In such instance, they
are employees of the company or employer in the
business concerned entitled to the privileges of a
regular employee.
D. HOMEWORKERS
Homeworker applies to any person who performs
industrial homework for an employer, contractor or
sub-contractor
Industrial Homeworker system of production
under which work for an employer or contractor is
carried out by a homeworker at his/her home.
Materials may or may not be furnished by the
employer or contractor
Employer of Homeworker 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:
a. Delivers, or causes to
be delivered, any goods,
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decompressor or fabricated
articles or materials
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be
processed
are needed to see this picture.
in or about a home and thereafter to be returned
or to be disposed of or distributed in accordance
with his directions
b. 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

Deductions No employee, contractor, or subcontractor shall make any deduction from the
homeworker's earnings for the value of materials
which have been lost, destroyed, soiled or otherwise
damaged unless the following conditions are met:
1. The homeworker concerned is clearly shown to
be responsible for the loss or damage;
2. The employee is given reasonable opportunity to
show cause why deductions should not be made;
3. The amount of such deduction is fair and
reasonable and shall not exceed the actual loss
or damages; and
4. The deduction is made at such rate that the
amount deducted does not exceed 20% of the
homeworker's earnings in a week.
Liability of employer and contractor Whenever
an employer shall contract with another for the
performance of the employer's work, it shall be the
duty of such employer to provide in such contract that
the employees or homeworkers of the contractor and
the latter's sub-contractor shall be paid in accordance
with the provisions of this Rule. In the event that such
contractor or sub-contractor fails to pay the wages or
earnings of his employees or homeworkers as
specified in this Rule, such employer shall be jointly
and severally liable with the contractor or subcontractor to the workers of the latter, to the extent
that such work is performed under such contract, in
the same manner as if the employees or
homeworkers were directly engaged by the employer.
Prohibitions for Homework
1. explosives, fireworks and articles of like character
2. drugs and poisons
3. other articles, the processing of which requires
exposure to toxic substance
E. HANDICAPPED / DISABLED
Handicapped Workers those whose earning
capacity is impaired by age or physical or mental
deficiency or injury, disease or illness

There must be a link between the deficiency and


the work which entitles the employer to lessen
the workers wage. If the disability of the person
is not in any way related to the work for which he
was hired, he should not be so considered as a
handicapped worker.

Handicapped Worker
(Art. 78 LC)

Handicapped Person
(RA 7277 Magna Carta
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Those whose earning
capacity is impaired by
age or physical or
mental deficiency or
injury

for Disabled Persons)


Those suffering from
restriction or different
abilities as a result of a
mental, physical or
sensory impairment, to
perform an activity in the
manner or within the range
considered normal for a
human being.

When Employable
1. their employment is necessary to prevent
curtailment of employment opportunities
2. does not create unfair competition in labor costs
3. does not impair or lower working standards
Handicapped Workers May Become Regular
Employees if their handicap is not such as to
effectively impede the performance of job operations
in the particular occupations for which they were
hired.
Equal Opportunity for Employment no disabled
person shall be denied access to opportunities for
suitable employment. Qualified disabled employees
shall be subject to same terms and conditions of
employment and the same compensation, privileges,
benefits, fringe benefits, incentives or allowances as
a qualified able-bodied person
Employment Agreement; Contents
1. Names and addresses of the employer and the
handicapped worker
2. Rate of pay of the handicapped worker which
shall not be less than 75% of the legal minimum
wage
3. Nature of work to be performed by the
handicapped worker
4. Duration of the employment

VIII. ADMINISTRATION AND EMPLOYMENT


Art. 128. Visitorial and enforcement power.
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Power of the Sec.TIFFof(Uncompressed)
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representative, including labor regulation officers to:
1. have access to employers records and premises
at any time of the day or night whenever work is
being undertaken therein
2. right to copy records
3. to question any employee
4. investigate any fact, condition, or matter which
may be necessary to determine violations or

which may be necessary to aid in enforcement of


the Labor Code or any labor law or order
5. issue compliance orders to give effect to labor
legislation based on the findings of employment
and enforcement officers or industrial safety
engineers made in the course of inspection
Compliance Order must observe due process in
administrative proceedings:
a. alleged violator must first be heard and given
adequate opportunity to present evidence on his
behalf
b. evidence presented duly considered before any
decision reached
c. decision is based on substantial evidence
d. decision based on evidence presented in the
hearing, or at least contained in the record and
disclosed to the parties
e. decision is that of the decision-making authority
and not mere views of subordinates
f. decision should explain the issues involved and
the reasons for the decisions rendered
6. Issue writs of execution to the appropriate
authority for the enforcement of their orders,
EXCEPT in cases where the employer contests
the findings of the labor employment and
enforcement officer and raises isues supported
by documentary proofs which were not
considered in the course of inspection in the
latter case, the case will have to be forwarded to
a Labor Arbiter
Appeal
If order issued by duly authorized representative
of DOLE Sec. appeal to the latter
If order involves monetary award an appeal by
the employer may be perfected upon only upon
posting of CASH or SURETY bond in the amount
equivalent to the monetary award in the order
appealed from
Power of DOLE Secretary
May order stoppage of work OR suspension of
any unit or department where non-compliance
with the law or implementing rules and
regulations poses grave and imminent danger to
the health and safety of workers in the workplace.
Within 24 hrs a hearing shall be conducted to
determine whether an order for the stoppage of
work or suspension of operations shall be lifted
If violation is attributable to FAULT OF THE
EMPLOYER, he shall pay the employees
concerned their salaries or wages during the
period of such stoppage of work or suspension of
operations.
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POWER
Unlawful
For any person or entity to obstruct, impede,
delay or otherwise render ineffective the orders of
the Sec. or his authorized representatives issued
pursuant to the authority under Art. 128
No inferior court shall issue temporary or
permanent injunction or restraining order or
otherwise assume jurisdiction over any case
involving the enforcement orders.
Enforcement Power cannot be Used
Case does not arise from exercise of visitorial
power
When EER ceased to exist at the time of
inspection
If employer contests finding of the labor officer
and such contestable issue is not verifiable in the
normal course of inspection

NATURE OF
POWER

EXISTENCE
OF EER

HOW
INITIATED

Recovery of Wages, Simple Money Claims and


Other Benefits (Art. 129)
Jurisdiction: DOLE Regional Director (summary
proceeding and non-litigious)

LIMITS AS
TO AMOUNT
OF CLAIM

Claimant: Employee or person in domestic or


household service, provided:

APPEAL

1. no claim for reinstatement


2. aggregate claims of each employee or
househelper DOES NOT EXCEED P5,000.
Guico v. Sec. of Labor, 298 SCRA 666 (1998)
If the claim later exceeds P5,000, the Regional
Director still retains jurisdiction based on inspections
findings in the nature of enforcement action
3. claims arise from EER
NOTE:
Notice and hearing
Resolution of complaint within 30 days from filing
(Appeal within 5 calendar days to NLRC)
NLRC to resolve appeal
within
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Not Included: claims for Employees Compensation,
Social Security benefits, Medicare benefits and
Maternity Benefits

WHO
EXERCISES

Art. 128
DOLE Sec. OR
his duly

Art. 129
Regional
Director or any

authorized
representative
who may or
may not be a
Regional
Director
Visitorial and
enforcement
power exercised
through routine
inspections of
establishment
Requires
existence of
EER

Enforcement
power is an
offshoot of
visitorial power
No limit

Appeal to Sec.
of Labor within
10 calendar
days

duly authorized
hearing officer
of DOLE

Adjudicatory
power on matter
involving
recovery of
wage
EER not
necessary since
it should not
include a claim
for
reinstatement
Sworn
complaint filed
by interested
party
Aggregate claim
of each
complainant
does not
exceed P5,000
Appeal to NLRC
within 5
calendar days

IX. MEDICAL, DENTAL AND


OCCUPATIONAL SAFETY
First Aid Treatment adequate, immediate and
necessary medical and dental attention or remedy
given in case of injury or illness suffered by a worker
during employment, irrespective of whether or not
such injury or illness is work-connected, before a
more extensive medical and/or dental treatment can
be secured.
First-Aider any person trained and duly certified as
qualified to administer first aid by the PNRC or by any
other organization accredited by the former

X. EMPLOYEES COMPENSATION
Workmens Compensation a general and
comprehensive term applied to those laws providing
for compensation for loss resulting from the injury,

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disablement or death of a workman through industrial
accident, casualty or disease
Compensation money relief offered according to
the scale established under the statute as
differentiated
from
compensatory
damages
recoverable in an action at law for breach of contract
or for tort
WORKMENS
COMPENSATION ACT
(WCA)
Presumption of
compensability
Presumption of
aggravation
There is a need for the
employer to controvert
the claim within 14 days
otherwise he is deemed
to have waived the right
Payment of
compensation is made
by the employer

EMPLOYEES
COMPENSATION LAW
(ECL)
No presumption of
compensability
No presumption of
aggravation
No need for the
employer to controvert
the claim

Payment of
compensation is made
by the SSS/GSIS
through the State
Insurance Fund. The
employers obligation is
to pay his counter
contribution to the SSS

Injury any harmful change in the human organism


from any accident arising out of and in the course of
employment
Conditions for Injury to be Compensable
1. The employee must have been injured at the
place where the work required him to be
2. The employee must have been performing his
official functions
3. If the injury is sustained elsewhere, the employee
must have been executing an order of the
employer
4. The injury was not due to the employees
intoxication, willful intention to injure or kill himself
or another, or notorious negligence
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TIFF (Uncompressed)
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doing overtime work shall be considered
work-connected
Sickness any illness accepted as an occupational
disease listed by the Commission or any illness
caused by the employment subject to proof that the
risk of contracting the same is increased by the
working conditions

Conditions for Occupational Disease and


Resulting Disability or Death to be Compensable
1. Employees work must involve the risk described
therein
2. the disease was contracted as a result of the
employees exposure to the described risks
3. the disease was contracted within the period of
exposure and other such factors necessary to
contract it
4. there was no notorious negligence on the part of
the employee
Death loss of life resulting from injury or sickness
Disability loss or impairment of a physical or
mental function resulting from injury or sickness
Direct Premises Rule
GR: The accident should have occurred at the place
of work to be compensable.
Exceptions:
1. INGRESS-EGRESS / PROXIMITY RULE when
the injury is sustained when the employee is
proceeding to or from his work on the premises of
the employer, the injury is compensable.
2. GOING TO OR COMING FROM WORK when
the injury is sustained when the employee is
proceeding to or from his work on the premises of
the employer, the injury is compensable.
a. The act of the employee of going to, or
coming from, the work place, must have
been a continuing act, that is, he had not
been diverted therefrom by any other activity
and he had not departed from his usual route
to, or from, his workplace; and
b. An employee on a special errand must have
been official and in connection with his work.
c. EXTRA PREMISES RULE the company
which provides the means of transportation in
going to, or coming from the place of work, is
liable to the injury sustained by the
employees while on board said means of
transportation
d. SPECIAL ERRAND RULE injury sustained
outside
the
company
premises
is
compensable if his being out is covered by
an office order or a locator slip or a pass for
official business
e. DUAL PURPOSE DOCTRINE allows
compensation where a special trip would
have to be made for the employer if the
employee had not combined the service for
the employer with his going or coming trip
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f.

SPECIAL ENGAGEMENT RULE covers


field trips, outings, intramurals, and picnics
when initiated and sanctioned by the
employer
g. POSITIONAL
AND
LOCAL
RISKS
DOCTRINE if an employee by reason of
his duties is exposed to a special or peculiar
danger from the elements, that is, one
greater than that to which other persons in
the community are exposed and an
unexpected injury occurs, the injury is
compensable
Compulsory Coverage ECL applies to all
employers, and to all employees, public or private
including casual, emergency, temporary, or substitute
employees

An employee over 60 yrs of age and paying


contributions to qualify for the retirement or life
insurance benefit administered by the system
shall be subject to compulsory coverage.

Effective Date of Coverage the employer is


covered from the first day of operation and the
employee from first day of employment
Limits of Liability
No compensation if the injury, death or disability is
the result of the employees:
1. intoxication
2. willful intention to injure or kill himself or another
3. notorious negligence deliberate act of the
employee in disregard to his own personal safety
4. otherwise provided by the Labor Code
Death through Suicide
GR: not compensable
Exceptions:
1. by agreement of the parties
2. if the suicide/death is caused by work-related or
compensable illness or disease
Rules on Simultaneous Recovery
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1. Simultaneous recovery
underand
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and the Civil Code
cannot
made. The action is
selective and the employee may either choose to
file the claim under either. But once the election
is made, the claimant cannot opt for the other
remedy.
2. Simultaneous recovery under the Labor Code
and the SSS can be made.

State Insurance Fund all covered employers are


required to remit to a common fund a monthly
contribution equivalent to 1% of the monthly salary
credit of every covered employee. The employee
pays no contribution to the fund. Any agreement to
contrary is prohibited
Disability Categories
1. TEMPORARY TOTAL if as a result of the injury
or sickness, the employee is unable to perform
any gainful occupation for a continuous period
not exceeding 120 days
2. PERMANENT TOTAL if as a result of the injury
or sickness, the employee is unable to perform
any gainful occupation for a continuous period
exceeding 120 days
3. PERMANENT PARTIAL - if as a result of the
injury or sickness, the employee suffers a
permanent partial loss of the use of any part of
his body
Death Benefits The System shall pay to the
primary beneficiaries upon the death of the covered
employee an amount equal to his monthly income
benefit, plus 10% thereof for each dependent child,
but not exceeding 5, beginning with the youngest,
and without substitution. The income benefit shall be
guaranteed for 5 years.
Dependent
1. Legitimate, legitimated, and legally adopted or
acknowledged natural child who is unmarried, not
gainfully employed and not over 21 years of age
or over 21 years of age, provided he is incapable
of self-support due to a physical or mental defect
which is congenital or acquired during minority
2. legitimate spouse living with the employee
3. parents of said employee wholly dependent upon
him for regular support
Benefits
1. for life to the primary beneficiaries, guaranteed
for 5 years
2. for not more than 60 mos. to the secondary
beneficiaries in case there are no primary
beneficiaries
3. in no case shall the total benefit be less than
P15,000.
Beneficiaries
A. PRIMARY
1. Dependent spouse until he/she remarries
2. Dependent children (legitimate, legitimated,
natural born or legally adopted)

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B. SECONDARY
1. Illegitimate
children
and
legitimate
descendants
2. Parents, grandparents, grandchildren

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