ISSUES REGARDING THE STUDENT INTERNSHIP ABROAD … · A.M. Case No. 10-10-4-SC: University of the...

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;


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


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:


(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


(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


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


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


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


• 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


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)


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


fitting to his students (graduate

students at that), subject only to

the rules and policies of the

University.

A.M. Case No. 10-10-4-SC:

University of the Philippines

College of Law Faculty, in re:

Plagiarism case against Supreme


Plagiarism case against Supreme

Court Justice del Castillo

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



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


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:


(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


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


correct attribution

a serious threat to the integrity and

credibility of the Philippine Judicial

System.


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


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


• 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


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.

“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”


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


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)


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.


GENERAL RULE:

Every employee

should be paid his should be paid his

regular daily wage

during regular

holidays.


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.


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.


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?


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.


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


“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.


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


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.


“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.


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.”


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.


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.


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].)


299 ordinary working days

52 Sundays or rest days

11 legal holidays

3 special days3 special days

365 DAYS DIVISOR365 DAYS DIVISOR


426.00/DAY X 365 DAYS/YEAR

------------------------------------------- = ESTIMATED MONTHLY RATE

12 MONTHS

P155,490.00 ANNUAL SALARY

----------------------------------------

12 MONTHS12 MONTHS

= P12,957.50 EMR



11 legal holidays

3 special days

313 DIVISOR313 DIVISOR




12 MONTHS


----------------------------------------

12 MONTHS12 MONTHS

= P11,111.50 EMR



(less Saturdays and Sundays)

11 legal holidays

3 special days3 special days

261 divisor




12 MONTHS


----------------------------------------

12 MONTHS12 MONTHS

= P9,265.50 EMR


TRICK IS TO CHECK IF

EMPLOYEE IS PRESENT OR

ABSENT ON THE DAY ABSENT ON THE DAY

IMMEDIATELY BEFORE THE

HOLIDAY


SITUATION ONE: EMPLOYEE

WENT TO WORK ON THE DAY

BEFORE THE HOLIDAY

THEN: HE IS ENTITLED TO THE

HOLIDAY PAY.


SITUATION TWO: EMPLOYEE

WAS ABSENT WITH LEAVE ON

THE DAY BEFORE THE HOLIDAY


HOLIDAY PAY.


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


SITUATION FOUR:

• EMPLOYEE’S REST DAY OR NON-

WORKING DAY BEFORE THE

HOLIDAY


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)?


SITUATION FIVE:

EMPLOYEE PRESENT ON THE DAY

PRIOR TO THE FIRST HOLIDAY


HOLIDAY PAY FOR BOTH HOLIDAYS


SITUATION SIX:

EMPLOYEE ABSENT ON THE DAY

PRIOR TO THE FIRST HOLIDAY BUT

REPORTS FOR WORK ON SECOND

HOLIDAYHOLIDAY


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.


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.


SITUATION SEVEN:

EMPLOYEE REPORTS FOR WORK ON

DAY IMMEDIATELY PRIOR TO THE

HOLIDAY

THEN: HE IS ENTITLED TO PAYMENT

FOR BOTH HOLIDAYS.


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.


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


RULES ON HOLIDAY PAY IN CASE OF

BUSINESS CLOSURES


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


SITUATION ELEVEN:

IN CASE OF PERMANENT CLOSURE

DUE TO BUSINESS REVERSESDUE TO BUSINESS REVERSES

(example: bankruptcy)

THEN NO MORE HOLIDAY PAY


The promulgation of this law

affirms the role of women in nation

building, and recognizes the


building, and recognizes the

substantive equality of women and

men.

Equal access and elimination of

discrimination against women in

education, scholarships and training. –

outlawing the expulsion, non-readmission,


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


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


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?


• 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


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.


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


EXCLUSIONS FROM

COVERAGE OF THE

SERVICE INCENTIVE SERVICE INCENTIVE

LEAVE PAY


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.


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.


MATERNITY

LEAVE (under

Rep Act 1161, SSS Rep Act 1161, SSS

Law)


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


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:


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


PATERNITY

LEAVE LEAVE under R.A. 8187,

Paternity Leave Act of

1996


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)


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.


WIFE pertains to

lawful wife; woman

legally married to legally married to

subject male

employee


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.


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


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.


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


days every year shall be

granted to any solo parent

employee who has rendered

service of at least one (1)

year.


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.


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. `


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.


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.


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


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


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


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


- 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


� 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:


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


exercise of the employees’ right to organize a

union

136

PROCEDURE FOR

IMPLEMENTING

DISCIPLINE


IMPLEMENTING

DISCIPLINE

137

GeneralGeneral RuleRule::

TheThe twintwin requirementsrequirements ofof NOTICENOTICE andand

HEARINGHEARING areare thethe essentialessential elementselements ofof

duedue processprocess inin terminationtermination cases,cases, whichwhich


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

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


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,


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


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


lawyer, gather data and evidence, and

decide on the defenses they will raise

against the complaint. (King of Kings

Transport, ibid.)

143

HEARINGHEARING


The NEW doctrine of due process in

termination cases;

HEARING OR CONFERENCE NOT

NECESSARY.


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.


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,


•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


of conflict, the law prevails over

the administrative regulations

implementing it.

Ada D. AbadCEAP Legal CounselCell: 0917-526-9732


Cell: 0917-526-9732

[email protected]

Ofc: +632-844-0583/

+632-843-8621

ISSUES REGARDING THE STUDENT INTERNSHIP ABROAD … · A.M. Case No. 10-10-4-SC: University of the...

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