CS 10 - Atty Abad's Presentation - Part 2
Transcript of CS 10 - Atty Abad's Presentation - Part 2
ISSUES REGARDING THEISSUES REGARDING THE
STUDENT INTERNSHIPSTUDENT INTERNSHIP
ABROAD PROGRAM (SIAP)ABROAD PROGRAM (SIAP)ABROAD PROGRAM (SIAP)ABROAD PROGRAM (SIAP)
• The SIAP created a lot of “fly-by-night”
recruitment agencies. CHED should
check accreditation itself and find out
the capabilities of the applicant-the capabilities of the applicant-
agency.
CONTRACTS WITH HOST CONTRACTS WITH HOST
TRAINING ESTABLISHMENTSTRAINING ESTABLISHMENTS
• Students not given copies of the
contracts.
• Some students have been asked to • Some students have been asked to
convert their contracts from six months
to one year.
• Some of students had no contracts in
fact, and were just asked to sign in the
airport upon arrival.
• Standard allowance is
Singaporean $450/month.
Most students have Most students have
questions on deductions on
their allowances by the
agencies.
• OJT students directly sign with the host
training establishment. They do not sign
FEEDBACK FROM FOREIGN TRAINING FEEDBACK FROM FOREIGN TRAINING
PARTNERS AND AS CONFIRMED BY PARTNERS AND AS CONFIRMED BY
PHILIPPINE EMBASSY:PHILIPPINE EMBASSY:
training establishment. They do not sign
with foreign agency.
• local agency is supposedly given copies
of the contracts with the
hotels/restaurants.
Clarification by Embassy Clarification by Embassy
officials officials
ViceVice--Consul Jed Martin A. Consul Jed Martin A.
LlonaLlona and Labor and Labor AttacheAttache
Rodolfo M. Rodolfo M. SabulaoSabulao
• There is a DISCONNECT between the CHED • There is a DISCONNECT between the CHED
Memorandum Orders versus Singaporean law.
• As far as Singaporean employers were
concerned, the OJT were not treated as
students BUT SIMPLY AS EMPLOYEES.
Hence, purpose of OJT not fully complied
with because students are not
transferred from one department to
another.
Thus, some students complained that
they were retained in housekeeping
department or as golf caddy for six
months to one year.
HOW IT MAY HOW IT MAY
BE TAUGHT?BE TAUGHT?
CEAP DAVAO LEGAL UPDATES 092211 12
BE TAUGHT?BE TAUGHT?
Academic freedom means that the teacher is
entitled to full freedom in:
"(a) research and in the publication of the
results, subject to the adequate performance of
his other academic duties;
CEAP DAVAO LEGAL UPDATES 092211 13
his other academic duties;
(b) discussing his subject in the classroom, but he
should be careful not to introduce into his
teaching controversial matter which has no
relation to his subject;
(c) The college or university teacher is a citizen, a
member of a learned profession, and an officer
in an educational institution.
freelyfreely
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Academic freedom also includes the right of the faculty to freelyfreely
expressexpress opinionsopinions based on bodies of evidence, research or
systematic thought and inquiry. The opinions expressed might
impeach or overturn conventional propositions or even challenge
established doctrines --- withoutwithout riskrisk toto theirtheir jobs,jobs,
promotionpromotion andand careerscareers..
AcademicAcademic freedomfreedom impliesimplies aa
correspondingcorresponding academicacademic
responsibilityresponsibility. The American Civil Liberties Union of New York
(in re: Academic Freedom and Academic Responsibility, New York ACLU 1953)
The teacher plays two distinct roles:
CEAP DAVAO LEGAL UPDATES 092211 15
(a) as a professor, which entails his conduct in
teaching and other activities directly related
to professional responsibilities; and
(b) as a citizen.
(1) A School may not impose any limitation upon the
teacher’s freedom in the exposition of his own
subject in the classroom or in addresses and
publications outside the college, except insofar as:
(a) the general necessity of adapting all instruction
to the needs of immature students; or
(b) in the case of institutions of denominational or
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(b) in the case of institutions of denominational or
partisan character, specific stipulations in advance,
fully understood and accepted by both parties
limit the scope and character of instruction.
(2) No teacher may claim as his right the
privilege of discussion in his classroom
controversial topics outside of his own field
of study.
The teacher is morally bound not to take
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The teacher is morally bound not to take
advantage of his position by introducing into
the classroom provocative discussions of
irrelevant subjects not within the field of study.
(3) The School should recognize
that the teacher, in speaking or
writing outside of the institution
upon subjects beyond the
scope of his own field of
study, is entitled precisely to
CEAP DAVAO LEGAL UPDATES 092211 18
study, is entitled precisely to
the same freedom and is
subject to the same
responsibility as attached to
all other citizens.
If the extramural utterances of the teacher should be
such as to raise grave doubts concerning his fitness for
the position, the questions should in all cases be
submitted to an appropriate committee of the faculty
of which he is a member.
It should be clearly understood that an institution
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It should be clearly understood that an institutionassumes no responsibility for views expressed bymembers of its staff.
OnOn thethe otherother hand,hand, thethe teachersteachers should,should, whenwhen
necessary,necessary, taketake painspains toto makemake itit clearclear thatthat theythey areare
expressingexpressing onlyonly theirtheir personalpersonal opinionsopinions.
MAY STUDENTS PROPERLYREQUEST TO BE SHOWNCOMPUTATION OF GRADESAND QUESTION THEGRADING SYSTEM OFTEACHERS?
Students have the right to be informed as to HOW
CEAP DAVAO LEGAL UPDATES 092211 20
• Students have the right to be informed as to HOW
their grades are to be computed, and question
mathematical errors
• BUT students may notnot question WHY they were
graded in such manner; academic freedom of
teachers
Academic freedom covers the right of the
teacher to assess the learning performance of
his students by assigning numerical or letter
grades.
The subject teacher is the best authority to
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The subject teacher is the best authority to
decide whether a student has learned or not.
Any grade intervention violates his right
to assess performance.
The professor (Dr. Daleon) was accused of
bias when he allowed three of his
doctorate students not to attend regular
classes, but giving them a special program
CAMACHO VS. CORESIS AND UNIV. OF
WESTERN MINDANAO (2002)
CEAP DAVAO LEGAL UPDATES 092211 22
classes, but giving them a special program
of self-study with reading materials, once
a week tutorial meetings, quizzes and
term papers.
Academic freedom clothes Dr.
Daleon with the widest latitude to
innovate and experiment on the
method of teaching which is most
fitting to his students (graduate
CEAP DAVAO LEGAL UPDATES 092211 23
fitting to his students (graduate
students at that), subject only to
the rules and policies of the
University.
CEAP DAVAO LEGAL UPDATES 092211 24
A.M. Case No. 10-10-4-SC:
University of the Philippines
College of Law Faculty, in re:
Plagiarism case against Supreme
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Plagiarism case against Supreme
Court Justice del Castillo
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This action stems from the decision of the
Supreme Court ,penned by Justice Mariano del
Castillo, in G.R. No. 162230 (Vinuya vs
Executive Secretary
CEAP DAVAO LEGAL UPDATES 092211 27
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In the Vinuya case, the petitioners wanted the Court
to compel the Executive Department to initiate
reparation actions against Japan for the crimes
committed against comfort women during the Second
World War
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Petition was dismissed because:
(1) The issue was under the exclusive prerogative of
the Executive Department; and (2) the Philippines is
not under any obligation in international law to
espouse these claims
Motion for
reconsideration was filed
through counsel, Atty.
Harry Roque, accusing
Justice del Castillo of:
CEAP DAVAO LEGAL UPDATES 092211 31
(1) plagiarism,
(2) twisting the intent of the plagiarized
sources,
(3) misconduct and inexcusable negligence.
“RESTORING INTEGRITY: A STATEMENT BY THE FACULTY
OF THE UNIVERSITY OF THE
PHILIPPINES
COLLEGE OF LAW
ON THE ALLEGATIONS OF
CEAP DAVAO LEGAL UPDATES 092211 32
ON THE ALLEGATIONS OF
PLAGIARISM AND
MISREPRESENTATION IN THE
SUPREME COURT.”
37
The Faculty raised its view
that plagiarism and
misrepresentation are not
only affronts to the individual
scholars whose work have
been appropriated without
correct attribution
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correct attribution
a serious threat to the integrity and
credibility of the Philippine Judicial
System.
CEAP DAVAO LEGAL UPDATES 092211 34
Thus, the Supreme Court issued an Order asking the thirty
seven (37) faculty members to explain why they should not be
disciplined as members of the bar for their actuations, viz., for
the use of intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts
• in the discharge of the ‘solemn duties and trust
reposed upon them as teachers in the profession
of law,’ and as members of the Bar to speak out
on a matter of public concern and one that is of
ARGUMENTS OF THE FACULTY
CEAP DAVAO LEGAL UPDATES 092211 35
on a matter of public concern and one that is of
vital interest to them.”
• their Statement was also issued in the exercise
of their academic freedom as teachers in an
institution of higher learning.
• had they remained silent on the plagiarism issue in
the Vinuya decision they would have “compromised
[their] integrity and credibility as teachers;
• [their silence] would have created a culture and
generation of students, professionals, even lawyers,
who would lack the competence and discipline for
research and pleading
• their silence would have communicated to the public
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• their silence would have communicated to the public
that plagiarism and misrepresentation are
inconsequential matters and that intellectual integrity
has no bearing or relevance to one’s conduct.”
it is not inconsistent with the principle of
academic freedom for this Court to subject
lawyers who teach law to disciplinary action
for contumacious conduct and speech,
coupled with undue intervention in favor
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coupled with undue intervention in favor
of a party in a pending case, without
observing proper procedure, even if purportedly
done in their capacity as teachers.
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“The highest tribunal of the land
refused to acknowledge the act of
lifting passages from various foreign
publications without proper
referencing and worse, using it to
support an entirely different theory
from what the authors actually
espouse, as act of PLAGIARISM”
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espouse, as act of PLAGIARISM”
“In this sense, a culture of dishonesty is likely to surface if
academic institutions cease being critical of it. As an institution of
learning, it is incumbent upon every school to remind their
students the importance of accountability, honesty and integrity.
These values should be non-negotiable.”
40CEAP DAVAO LEGAL UPDATES 092211
Article 91. Rights to
weekly rest day.
(a)It shall be the duty of
every employer,
whether operating for
profit or not, to
provide each of his provide each of his
employees a rest
period of not less
than twenty-four (24)
consecutive hours
after every six (6)
consecutive normal
work days 41CEAP DAVAO LEGAL UPDATES 092211
Employees are not machines. If machines
need to be rested to avoid
malfunctioning, with more reason should
a human being need the rest for
rejuvination and revitalization of lost
energy.energy.
• accident rates and work spoilage
reduced
• increase rate of output
42CEAP DAVAO LEGAL UPDATES 092211
It is neither justice nor humanity so to grind men
down with excessive labor or to stupefy their
minds and wear out their bodies. Men’s powers –
like his general nature – is limited, and beyond
these limits, he cannot go. His strength is
developed and increased by use and exercise, but developed and increased by use and exercise, but
only on condition of due intermission and proper
rest. Daily labor, therefore, must e so regulated
that it may not be protracted during longer hours
than strength admits. (Pope Leo XIII, Rerum Novarum, Encyclical
Letter on the Condition of Labor, cited in Poquiz, Labor Standards Law with
Notes and Cases Vol 1, 2005 ed., page 192)
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MAY THE EMPLOYEE
DEMAND FOR A CHANGE
OF THE REST DAY ON
ACCOUNT OF HIS/HER
RELIGIOUS BELIEFS?
The employer shall The employer shall
respect the preference of
employees as to their
weekly rest day when
such preference is based
on religious grounds.
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45CEAP DAVAO LEGAL UPDATES 092211
GENERAL RULE:
Every employee
should be paid his should be paid his
regular daily wage
during regular
holidays.
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EXCEPTION: The holiday pay benefit shall not
cover the following persons -
a. Government employees
b. Those of retail and service establishments regularly
employing less than ten (10) workers;
c. Domestic helpers and persons in the personal c. Domestic helpers and persons in the personal
service of another;
d. Managerial employees; and
e. Field personnel; unsupervised employees engaged
on task or contract basis, commission basis, or
results-oriented basis.
47CEAP DAVAO LEGAL UPDATES 092211
LIST OF REGULAR HOLIDAYS(as provided for under Executive Order No. 203 and incorporated in Executive
Order No. 292; as amended by RA 9177 [Declaring Eid Al Fitr as a holiday]).
There are ELEVEN (11) regular holidays, to wit:
New Year's Day- January 1
Maundy Thursday - Movable Date
Good Friday - Movable DateGood Friday - Movable Date
Araw ng Kagitingan - April 9
Labor Day - May 1
Independence Day -June 12
National Heroes Day- Last Sunday of August
Bonifacio Day- November 30
Eid Al Fitr-Movable Date
Christmas Day-December 25
Rizal Day-December 3048CEAP DAVAO LEGAL UPDATES 092211
Mechanics of the availment of holiday pay benefit. –
The employee is entitled to the payment of his regular
daily basic wage (100%) during said holidays, even if
the worker did not report for work on said days;
PROVIDED that he was present or was on leave of PROVIDED that he was present or was on leave of
absence with pay ON THE WORK DAY IMMEDIATELY
PRECEDING THE HOLIDAY.
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TWO NATIONAL SPECIAL DAYS:TWO NATIONAL SPECIAL DAYS:
All Saints Day on
November 1
Last Day of the Year,
December 31. 50CEAP DAVAO LEGAL UPDATES 092211
WHAT ABOUT “NINOY
AQUINO DAY” AUG 21?
51CEAP DAVAO LEGAL UPDATES 092211
REPUBLIC ACT NO. 9256:
In order to commemorate the death
anniversary of former Senator Benigno
“Ninoy” S. Aquino, Jr., August twenty-one “Ninoy” S. Aquino, Jr., August twenty-one
of every year is hereby declared as the
Ninoy Aquino day which shall be a
NATIONAL NONWORKING HOLIDAY.
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RULES ON SPECIAL NON-WORKING DAYS:
• NO WORK, NO PAY
• IF EMPLOYEE IS SUFFERED TO WORK 8 HOURS • IF EMPLOYEE IS SUFFERED TO WORK 8 HOURS
ON NINOY AQUINO DAY, THEN HE/SHE OUGHT
TO BE PAID PLUS 30% (OR 130%) OF REGULAR
WAGE
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54CEAP DAVAO LEGAL UPDATES 092211
55CEAP DAVAO LEGAL UPDATES 092211
“The school is exempt from paying
hourly paid faculty members their
pay for regular holidays, whether
the same be during the regular
semesters of the school year or semesters of the school year or
during semestral, Christmas, or Holy
Week vacations.
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Regular holidays specified as such by
law are known to both school and
faculty members as “no class days;”
certainly the latter do not expect certainly the latter do not expect
payment for said unworked days, and
this was clearly in their minds when
they entered into the teaching
contracts
57CEAP DAVAO LEGAL UPDATES 092211
58CEAP DAVAO LEGAL UPDATES 092211
BUT, the school must pay the hourly paid
faculty members their hourly rate on days
declared as special holidays or for some
reason classes are called off or shortened
for the hours they are supposed to have
taught, whether extensions of class days be taught, whether extensions of class days be
ordered or not; in case of extensions said
faculty members shall likewise be paid their
hourly rates should they teach during said
extensions.
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“It is readily apparent that the declared purpose of
the holiday pay which is the prevention of
diminution of the monthly income of the
employees on account of work interruptions is
defeated when a regular class day is cancelled on
account of a special public holiday and class hours account of a special public holiday and class hours
are held on another working day to make up for
time lost in the school calendar. Otherwise stated,
the faculty member, although forced to take a rest,
does not earn what he should earn on that day.
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Be it noted that when a special public holiday is
declared, the faculty member paid by the hour is
deprived of expected income, and it does not matter
that the school calendar is extended in view of the
days or hours lost, for their income that could be
earned from other sources is lost during the
extended days. Similarly, when classes are called off extended days. Similarly, when classes are called off
or shortened on account of typhoons, floods, rallies,
and the like, these faculty members must likewise be
paid, whether or not extensions are ordered.”
61CEAP DAVAO LEGAL UPDATES 092211
ROLE OF DIVISOR IN ROLE OF DIVISOR IN
DETERMINING PAYMENT OF DETERMINING PAYMENT OF
HOLIDAY PAY FOR MONTHLY PAID HOLIDAY PAY FOR MONTHLY PAID HOLIDAY PAY FOR MONTHLY PAID HOLIDAY PAY FOR MONTHLY PAID
EMPLOYEES.EMPLOYEES.
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The divisor assumes an important role in determining
whether or not holiday pay is already included in the
monthly paid employee’s salary. (Producers Bank vs.
NLRC, 355 SCRA 489 [2001]).
a) As a general rule, for the company with a 6-day working
schedule, the divisor 314 means that the legal holidays
are already included in the monthly pay of the are already included in the monthly pay of the
employee.
b) As a general rule, for the company with a 5-day working
schedule, the divisor 261 means that the holiday pay is
already included in the monthly salary of the employee.
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Under Section 2, Rule IV, Book III of the Under Section 2, Rule IV, Book III of the
Omnibus Rules Implementing the Labor Code, Omnibus Rules Implementing the Labor Code,
employees who are uniformly paid by the employees who are uniformly paid by the
monthmonth, irrespective of the number of working , irrespective of the number of working
days therein, shall be presumed to be paid for days therein, shall be presumed to be paid for
monthmonth, irrespective of the number of working , irrespective of the number of working
days therein, shall be presumed to be paid for days therein, shall be presumed to be paid for
all the days in the month whether worked or all the days in the month whether worked or
not. not. (San Miguel Corporation vs. Del Rosario, 477 SCRA 604 [2005].)
64CEAP DAVAO LEGAL UPDATES 092211
65CEAP DAVAO LEGAL UPDATES 092211
299 ordinary working days
52 Sundays or rest days
11 legal holidays
3 special days3 special days
365 DAYS DIVISOR365 DAYS DIVISOR
66CEAP DAVAO LEGAL UPDATES 092211
426.00/DAY X 365 DAYS/YEAR
------------------------------------------- = ESTIMATED MONTHLY RATE
12 MONTHS
P155,490.00 ANNUAL SALARY
----------------------------------------
12 MONTHS12 MONTHS
= P12,957.50 EMR
67CEAP DAVAO LEGAL UPDATES 092211
68CEAP DAVAO LEGAL UPDATES 092211
299 ordinary working days
11 legal holidays
3 special days
313 DIVISOR313 DIVISOR
69CEAP DAVAO LEGAL UPDATES 092211
426.00/DAY X 313 DAYS/YEAR
------------------------------------------- = ESTIMATED MONTHLY RATE
12 MONTHS
P133,338.00 ANNUAL SALARY
----------------------------------------
12 MONTHS12 MONTHS
= P11,111.50 EMR
70CEAP DAVAO LEGAL UPDATES 092211
71CEAP DAVAO LEGAL UPDATES 092211
247 ordinary working days
(less Saturdays and Sundays)
11 legal holidays
3 special days3 special days
261 divisor
72CEAP DAVAO LEGAL UPDATES 092211
426.00/DAY X 261 DAYS/YEAR
------------------------------------------- = ESTIMATED MONTHLY RATE
12 MONTHS
P111,186.00 ANNUAL SALARY
----------------------------------------
12 MONTHS12 MONTHS
= P9,265.50 EMR
73CEAP DAVAO LEGAL UPDATES 092211
74CEAP DAVAO LEGAL UPDATES 092211
TRICK IS TO CHECK IF
EMPLOYEE IS PRESENT OR
ABSENT ON THE DAY ABSENT ON THE DAY
IMMEDIATELY BEFORE THE
HOLIDAY
75CEAP DAVAO LEGAL UPDATES 092211
SITUATION ONE: EMPLOYEE
WENT TO WORK ON THE DAY
BEFORE THE HOLIDAY
THEN: HE IS ENTITLED TO THE
HOLIDAY PAY.
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SITUATION TWO: EMPLOYEE
WAS ABSENT WITH LEAVE ON
THE DAY BEFORE THE HOLIDAY
THEN: HE IS ENTITLED TO THE
HOLIDAY PAY.
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SITUATION THREE: EMPLOYEE
WAS ABSENT ON THE DAY
BEFORE THE HOLIDAY
THEN: HE IS NOT ENTITLED TO THEN: HE IS NOT ENTITLED TO
THE HOLIDAY PAY
78CEAP DAVAO LEGAL UPDATES 092211
SITUATION FOUR:
• EMPLOYEE’S REST DAY OR NON-
WORKING DAY BEFORE THE
HOLIDAY
THEN: HE IS ENTITLED TO THE
HOLIDAY PAY ONLY IF HE WAS NOT
ABSENT ON THE DAY PRIOR TO REST
DAY OR SPECIAL DAY79CEAP DAVAO LEGAL UPDATES 092211
WHAT ARE THE RULES IF THERE
ARE TWO SUCCESSIVE REGULAR
HOLIDAYS (AUG 29 EID’L FITR AND
NATIONAL HEROES DAY; OR HOLY NATIONAL HEROES DAY; OR HOLY
THURSDAY AND GOOD FRIDAY)?
80CEAP DAVAO LEGAL UPDATES 092211
SITUATION FIVE:
EMPLOYEE PRESENT ON THE DAY
PRIOR TO THE FIRST HOLIDAY
THEN: HE IS ENTITLED TO THE
HOLIDAY PAY FOR BOTH HOLIDAYS
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SITUATION SIX:
EMPLOYEE ABSENT ON THE DAY
PRIOR TO THE FIRST HOLIDAY BUT
REPORTS FOR WORK ON SECOND
HOLIDAYHOLIDAY
THEN: HE IS ENTITLED TO THE
HOLIDAY PAY FOR ONLY THE SECOND
HOLIDAY82CEAP DAVAO LEGAL UPDATES 092211
PER POQUIZ:
Under a DOLE Secretary Policy Instruction,
employee is still entitled to the regular rate
on the second holiday. While Policy
Instruction appears to be in contravention of Instruction appears to be in contravention of
the Rules, Poquiz opines that this is feasible
as it is a more liberal interpretation in favor
of labor, in conformity with social justice and
equity principles of the law.
83CEAP DAVAO LEGAL UPDATES 092211
Thus, if employee was absent on
Holy Wednesday, he is not
entitled to the regular holiday
rate for Holy Thursday BUT still rate for Holy Thursday BUT still
entitled to a regular rate on
GOOD FRIDAY.
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86CEAP DAVAO LEGAL UPDATES 092211
SITUATION SEVEN:
EMPLOYEE REPORTS FOR WORK ON
DAY IMMEDIATELY PRIOR TO THE
HOLIDAY
THEN: HE IS ENTITLED TO PAYMENT
FOR BOTH HOLIDAYS.
87CEAP DAVAO LEGAL UPDATES 092211
SITUATION EIGHT:
EMPLOYEE DOES NOT REPORT FOR
WORK ON DAY IMMEDIATELY PRIOR
TO THE HOLIDAY
THEN: HE IS NOT ENTITLED TO
PAYMENT FOR BOTH HOLIDAYS.
88CEAP DAVAO LEGAL UPDATES 092211
SITUATION NINE:
EMPLOYEE REPORTS FOR WORK ON
APRIL 9 (HOLY THURS AND BATAAN
DAY)
THEN: HE IS ENTITLED TO PAYMENT
FOR BOTH HOLIDAYS, VIZ: 100% FOR
8 HOURS; PLUS 100% HOLY THUR
PLUS 100% BATAAN DAY
89CEAP DAVAO LEGAL UPDATES 092211
RULES ON HOLIDAY PAY IN CASE OF
BUSINESS CLOSURES
90CEAP DAVAO LEGAL UPDATES 092211
SITUATION TEN:
IN CASE OF TEMPORARY OR PERIODIC
SHUTDOWN
(example: yearly inventory or
maintenance check of machines)maintenance check of machines)
THEN HOLIDAY PAY STILL TO BE PAID
TO EACH EMPLOYEE
91CEAP DAVAO LEGAL UPDATES 092211
SITUATION ELEVEN:
IN CASE OF PERMANENT CLOSURE
DUE TO BUSINESS REVERSESDUE TO BUSINESS REVERSES
(example: bankruptcy)
THEN NO MORE HOLIDAY PAY
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The promulgation of this law
affirms the role of women in nation
building, and recognizes the
CEAP DAVAO LEGAL UPDATES 092211 94
building, and recognizes the
substantive equality of women and
men.
CEAP DAVAO LEGAL UPDATES 092211 95
Equal access and elimination of
discrimination against women in
education, scholarships and training. –
outlawing the expulsion, non-readmission,
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outlawing the expulsion, non-readmission,
prohibiting enrolment and other related
discrimination against women students and
faculty due to pregnancy outside of marriage;
(Section 16)
Non-discrimination in
employment in the field
of military, police and
other similar services. –
This includes according the same
CEAP DAVAO LEGAL UPDATES 092211 97
This includes according the same
promotional privileges and opportunities
as their men counterpart, including pay
increases, additional benefits, and
awards, based on competency and
quality of performance
Leave benefits of two (2)
months with full pay based
on gross monthly
compensation, for women
employees who undergo
surgery caused by
CEAP DAVAO LEGAL UPDATES 092211 98
surgery caused by
gynecological disorders, provided that they have rendered
continuous aggregate employment
service of at least six (6) months for
the last twelve (12) months;
(Section 21)
HOW WILL THESE LAWS AFFECT HIRING
PRACTICE?
CEAP DAVAO LEGAL UPDATES 092211 99
100CEAP DAVAO LEGAL UPDATES 092211
• in the form of a sick/vacation
leave. It affords the employee a
chance to get much-needed rest to chance to get much-needed rest to
replenish worn-out energies and
acquire new vitality to efficiently
perform duties
101CEAP DAVAO LEGAL UPDATES 092211
GENERAL RULE:
Every employee who has rendered at least 1 year
of service shall be entitled to a yearly service
incentive leave of FIVE (5) DAYS FIVE (5) DAYS WITH PAYWITH PAY.
102CEAP DAVAO LEGAL UPDATES 092211
Art. 95. Right to service incentive leave.
(a) Every employee who has rendered at least one year of
service shall be entitled to a yearly service incentive leave of five
days with pay.
(b) This provision shall not apply to those who are already
enjoying the benefit herein provided, those enjoying vacation
leave with pay of at least five days and those employed in
establishments regularly employing less than ten employees or
leave with pay of at least five days and those employed in
establishments regularly employing less than ten employees or
in establishments exempted from granting this benefit by the
Secretary of Labor and Employment after considering the
viability or financial condition of such establishment.
© The grant of benefit in excess of that provided herein shall
not be made a subject of arbitration or any court or
administrative action.
MEANING OF ONE YEAR OF 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
EXCEPT:EXCEPT:
• the working days in the establishment as a
matter of practice or policy is less than 12 mos.
•Employment contract is less than 12 months
104CEAP DAVAO LEGAL UPDATES 092211
EXCLUSIONS FROM
COVERAGE OF THE
SERVICE INCENTIVE SERVICE INCENTIVE
LEAVE PAY
105CEAP DAVAO LEGAL UPDATES 092211
Right to SIL does not apply to those who are: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 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.
106CEAP DAVAO LEGAL UPDATES 092211
COMMUTABLE NATURE OF BENEFIT
SIL is commutable, i.e., convertible to
cash.
Additional purpose of the law is to Additional purpose of the law is to
encourage workers to work continuously
and with dedication to the company.
107CEAP DAVAO LEGAL UPDATES 092211
MATERNITY
LEAVE (under
Rep Act 1161, SSS Rep Act 1161, SSS
Law)
108CEAP DAVAO LEGAL UPDATES 092211
COVERAGE/REQUIREMENTS
FOR AVAILMENT
• FEMALE
• need not be legally married
•who has paid for at least 3
monthly SSS contributions in monthly SSS contributions in
the 12-month period
immediately preceding the
semester of her childbirth or
miscarriage
109CEAP DAVAO LEGAL UPDATES 092211
HOW MUCH BENEFIT?
She shall be paid a
daily maternity
benefit equivalent to
100% of her average
benefit equivalent to
100% of her average
daily salary credit for:
110CEAP DAVAO LEGAL UPDATES 092211
60 days – normal delivery111CEAP DAVAO LEGAL UPDATES 092211
78 days – caesarian delivery112CEAP DAVAO LEGAL UPDATES 092211
• 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.
• Maternity benefits, like other benefits granted by the • Maternity benefits, like other benefits granted by the
SSS, are granted in lieu of wages and therefore, may
not be included in computing the employee’s 13th
month pay for the calendar year.
• FIRST FOUR DELIVERIES/MISCARRIAGES
113CEAP DAVAO LEGAL UPDATES 092211
PATERNITY
LEAVE LEAVE under R.A. 8187,
Paternity Leave Act of
1996
114CEAP DAVAO LEGAL UPDATES 092211
COVERAGE
R.A. 8187 grants 7 working
days of paternity leave with
full pay to married male full pay to married male
employees in the private and
public sectors. (Sec. 1(a), RA
8187 IRR)
115CEAP DAVAO LEGAL UPDATES 092211
CONDITIONS FOR
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 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.
116CEAP DAVAO LEGAL UPDATES 092211
WIFE pertains to
lawful wife; woman
legally married to legally married to
subject male
employee
117CEAP DAVAO LEGAL UPDATES 092211
AVAILMENT
Paternity leave benefits shall
be granted to the qualified
employee after the delivery
by his wife, without prejudice
to an employer allowing an
employee to avail of the employee to avail of the
benefit before or during the
delivery; provided, that the
total number of days shall not
exceed seven (7) days for
each delivery.118CEAP DAVAO LEGAL UPDATES 092211
Where the male employee is
already enjoying the paternity
leave by reason of any law, decree,
executive orders or any contract,
agreement or policy between the
employer and employee and the
existing paternity benefit is
the greater benefit greater, the greater benefit
shall prevail; if lesser, the
existing benefit shall be
adjusted to the extent of the
difference.
119CEAP DAVAO LEGAL UPDATES 092211
Republic Act No. 8972Republic Act No. 8972
SOLO PARENTS’ SOLO PARENTS’
WELFARE ACT OF 2000WELFARE ACT OF 2000
Ultimate goal was the protection
of the children’s rights
A solo parent who is deprived of a
CEAP DAVAO LEGAL UPDATES 092211 120
A solo parent who is deprived of a
source of livelihood would be more
economically vulnerable and less
able to support the child. Please see:
Explanatory notes to Senate Bill No. 93 (Flavier); Senate Bill No. 216
(Osmena); and Senate Bill No. 998 (Oreta)
07 November 2000/ IRR 07 Sept 2002
SECTION 7. Work Discrimination. —
No employer shall discriminate
against any solo parent employee
with respect to terms and conditions
of employment on account of his/her
status.
CEAP DAVAO LEGAL UPDATES 092211 121
SECTION 8. Parental
Leave. — In addition to leave
privileges under existing
laws, parental leave of not
more than seven (7) working
days every year shall be
CEAP DAVAO LEGAL UPDATES 092211 122
days every year shall be
granted to any solo parent
employee who has rendered
service of at least one (1)
year.
CEAP DAVAO LEGAL UPDATES 092211 123
ANTI VIOLENCE AGAINST WOMEN
AND CHILDREN
“Battered Woman
Leave” or BWL
Allows the victim of violence,
which may be physical,
sexual, or psychological, to sexual, or psychological, to
apply for the issuance of a
protection order that will
shield her from further
violence and provide her
related reliefs.
124CEAP DAVAO LEGAL UPDATES 092211
CONDITIONS FOR ENTITLEMENT
• The victim must be an employee. If she is such, 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. `
125CEAP DAVAO LEGAL UPDATES 092211
AVAILMENT
• Usage of the 10 day leave is at the
option of the woman employee. It shall
cover the day or days when she will have
to attend to medical and legal concerns. to attend to medical and legal concerns.
• Leaves not availed of are non-
cumulative and not convertible to cash.
126CEAP DAVAO LEGAL UPDATES 092211
An employer who denies the application
for BWL, or who prejudices any person
assisting the woman employee, may be
held liable for discrimination and
violation of RA No. 9262 or its violation of RA No. 9262 or its
implementing rules and regulations.
127CEAP DAVAO LEGAL UPDATES 092211
Memory aid: DIRe2C
3.1 Disease
AUTHORIZED CAUSES FOR TERMINATIONAUTHORIZED CAUSES FOR TERMINATION
IBP-QC MCLE LABOR UPDATES SEPT 2011
3.2 Installation of labor saving devices
3.3 Redundancy
3.4 Retrenchment
3.5 Cessation or closure of employer’s business128
The employer has NO LEGAL OBLIGATION to keep in his
payroll more employees as are necessary for the economical
operations of the business (Wiltshire File case)
The determination of the continuing necessity of a
IBP-QC MCLE LABOR UPDATES SEPT 2011
The determination of the continuing necessity of a
particular office or position in a business operation is a
management’s prerogative, and the Courts will not interfere
with the exercise of such SO LONG AS THERE IS NO ABUSE
OF DISCRETION, or that it is shown that it was not merely
arbitrary or malicious action on the part of the
management.
129
DISEASEDISEASE - REQUIREMENTS TO BE AN
AUTHORIZED CAUSE FOR DISMISSAL
• where the employee’s
continued employment is
prohibited by law or prejudicial
to his health or to the health of
his co-employees
IBP-QC MCLE LABOR UPDATES SEPT 2011
his co-employees
• certification from a competent
public health authority that the
disease is of such nature or at
such a stage that it cannot be
cured within a period of six
months even with proper
medical treatment130
Installation of labor-saving device
- the right of management to use new labor-
saving devices with a view to effecting more
economy and efficiency in its method of
production
IBP-QC MCLE LABOR UPDATES SEPT 2011 131
REDUNDANCY• Where the services of an employee are in
excess of what is reasonably demanded by
the actual requirements of the enterprise
• SEPARATION PAY: 1 month
pay or 1 month for every
IBP-QC MCLE LABOR UPDATES SEPT 2011
pay or 1 month for every
year of service, whichever is
higher (fraction of 6 mos = 1
year)
• NOTICE to employee and
DOLE at least one month
prior to intended date of
effectivity
132
CALTEX vs. NLRC, 536 SCRA 175 (OCT 2007)
Reiteration of requirements for redundancy program,
GOOD FAITH IN ABOLISHING THE REDUNDANT POSITION;
FAIR & REASONABLE CRITERIA IN ASCERTAINING WITH
POSITIONS ARE TO BE DECLARED REDUNDANT AND
ACCORDINGLY ABOLISHED
IBP-QC MCLE LABOR UPDATES SEPT 2011
- criteria: less preferred status; efficiency & seniority.
A letter merely stating the PLAN to implement
redundancy program w/o contents as t details thereof, not
written notice to DOLE.
133
4 elements of retrenchment
� Expected losses are substantial
� Substantial losses, IF
RETRENCHMENT –
to avoid serious business losses
IBP-QC MCLE LABOR UPDATES SEPT 2011
� Substantial losses, IF anticipated, must be reasonably imminent
� Necessary and likely to prevent the expected losses
� Losses, if already realized, must be proven by sufficient and convincing evidence
134
CRITERIA IN DETERMINING CRITERIA IN DETERMINING
WHO MAY BE RETRENCHEDWHO MAY BE RETRENCHED
The Court has laid down the principle that in selecting
the employees to be dismissed, a fair and reasonable
criteria must be used, such as but not limited to:
IBP-QC MCLE LABOR UPDATES SEPT 2011
criteria must be used, such as but not limited to:
(a) Less preferred status (e.g., temporary employee),
(b) Efficiency (performance evaluation); and
(c) Seniority (Last-in, First-out rule).
Golden Thread Knitting vs. NLRC, 304 SCRA 568 [March 1999]
135
Cessation or closure of business- IF DUE TO LOSSES, follow standards in
determining a valid retrenchment.
- IF NOT DUE TO LOSSES, closure must be in
good faith and not done merely to evade its
obligation to the employees or pre-empt the
exercise of the employees’ right to organize a
IBP-QC MCLE LABOR UPDATES SEPT 2011
exercise of the employees’ right to organize a
union
136
PROCEDURE FOR
IMPLEMENTING
DISCIPLINE
IBP-QC MCLE LABOR UPDATES SEPT 2011
IMPLEMENTING
DISCIPLINE
137
GeneralGeneral RuleRule::
TheThe twintwin requirementsrequirements ofof NOTICENOTICE andand
HEARINGHEARING areare thethe essentialessential elementselements ofof
duedue processprocess inin terminationtermination cases,cases, whichwhich
IBP-QC MCLE LABOR UPDATES SEPT 2011
duedue processprocess inin terminationtermination cases,cases, whichwhich
cannotcannot bebe dispenseddispensed withwith withoutwithout
violatingviolating thethe constitutionalconstitutional rightright toto duedue
processprocess. (Century Textile Mills vs. NLRC, May 1988; Shoemart vs.
NLRC, August 1989;l Offshore Industries vs. NLRC, August 1989; PAL vs.
NLRC, June 1989; A.M. Ureta vs. NLRC, August 1989)
138
IBP-QC MCLE LABOR UPDATES SEPT 2011 139
Dept. Order No. 10, Article V; IRR B5 R14 S1-11
TWO NOTICES REQUIRED:
11stst noticenotice:: NoticeNotice ofof appraisalappraisal,, whichwhich isis aa writtenwritten noticenotice
servedserved onon thethe employeeemployee specifyingspecifying thethe groundground oror
groundsgrounds ofof termination,termination, andand givinggiving thethe employeeemployee
reasonablereasonable opportunityopportunity withinwithin whichwhich toto explainexplain
hishis sideside
IBP-QC MCLE LABOR UPDATES SEPT 2011
hishis sideside
22ndnd noticenotice:: NoticeNotice ofof terminationtermination,, whichwhich isis aa writtenwritten
noticenotice ofof terminationtermination servedserved uponupon thethe employee,employee,
indicatingindicating thatthat uponupon duedue considerationconsideration ofof allall thethe
circumstances,circumstances, groundsgrounds havehave beenbeen establishedestablished toto
justifyjustify hishis terminationtermination..
140
MODIFICATION ON NOTICE REQUIREMENT:
The first notice should contain a detailed narration of
facts and circumstances that will serve as basis for the
charge against the employee. A general description of
the charge will not suffice.
The notice should specifically mention which company
rules, if any, are violated. (King of Kings Transport vs. Mamac,
IBP-QC MCLE LABOR UPDATES SEPT 2011
rules, if any, are violated. (King of Kings Transport vs. Mamac,
526 SCRA 116 [29 June 2007]), and that the employer seeks
dismissal for the act or omission charged against the
employee; otherwise; the notice does not comply with
the rules. (Magro Placement vs. Hernandez, 526 SCRA 408 [04 July
2007])
141
What is “Reasonable
opportunity” to defend and
explain?
This means every kind of assistance that
IBP-QC MCLE LABOR UPDATES SEPT 2011
This means every kind of assistance that
management must accord to the employees to
enable them to prepare adequately for their
defense.
142
This should be construed as a period of
FIVE (5) CALENDAR DAYS from receipt of
notice to give the employees an
opportunity to study the accusation
against them, consult a union official or
lawyer, gather data and evidence, and
IBP-QC MCLE LABOR UPDATES SEPT 2011
lawyer, gather data and evidence, and
decide on the defenses they will raise
against the complaint. (King of Kings
Transport, ibid.)
143
HEARINGHEARING
IBP-QC MCLE LABOR UPDATES SEPT 2011 144
The NEW doctrine of due process in
termination cases;
HEARING OR CONFERENCE NOT
NECESSARY.
IBP-QC MCLE LABOR UPDATES SEPT 2011 145
NECESSARY. Perez vs. Philippine Telegraph and Telephone Company, 584 SCRA 110 [2009], En Banc.
Petitioners in this case contended that due
process was not observed in the absence of
a hearing in which they could have explained
their side and refuted the evidence against
them.
IBP-QC MCLE LABOR UPDATES SEPT 2011 146
them.
The Supreme Court ruled that there is no need
for a hearing or conference, and noted:
xxx (There is) a marked difference in the standards of due process to be
followed as prescribed in the Labor Code and its implementing rules.
• The Labor Code, on one hand, provides that an
employer must provide the employee ample
opportunity to be heard and to defend himself with
the assistance of his representative if he so desires.
•The Omnibus Rules implementing the Labor Code,
IBP-QC MCLE LABOR UPDATES SEPT 2011 147
•The Omnibus Rules implementing the Labor Code,
on the other hand, require a hearing and conference
during which the employee concerned is given the
opportunity to respond to the charge, present his
evidence or rebut the evidence presented against
him
At the outset, it must be stated that the
time-honored doctrine is that, in case
of conflict, the law prevails over
IBP-QC MCLE LABOR UPDATES SEPT 2011 148
of conflict, the law prevails over
the administrative regulations
implementing it.
IBP-QC MCLE LABOR UPDATES SEPT 2011 149
Ada D. AbadCEAP Legal CounselCell: 0917-526-9732
CEAP DAVAO LEGAL UPDATES 092211 150
Cell: 0917-526-9732
Ofc: +632-844-0583/
+632-843-8621