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SAN BEDA COLLEGE OF LAW

MEMORY AID in LABOR LAW

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MEMORY AID in LABOR LAW

Any form of reproduction of this copy is strictly prohibited!!!

PRELIMINARY TITLE

CHAPTER I

GENERAL PROVISIONS

( ART 1. NAME OF DECREE

( LABOR LEGISLATION - Consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. It is divided into labor standards and labor relations.( LABOR STANDARDS - Are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards.

( LABOR RELATIONS LAW - defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives.

- The law which seeks to stabilize the relation between employer and employee, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration.

( ART. 2. DATE OF EFFECTIVITY

( The Labor Code took effect on November 1, 1974 (six months after its promulgation on May 1,1974)

( SEVEN (7) BASIC RIGHTS OF WORKERS AS GUARANTEED BY THE CONSTITUTION (OCESHLP):1. Right to Organize

2. Right to Conduct Collective Bargaining

or Negotiation with Management

3. Right to Engage in Peaceful Concerted

Activities including strike in accordance

with law

4. Right to Enjoy Security of Tenure

5.Right to Work Under Humane Conditions

6.Right to Receive a Living Wage

7.Right to Participate in Policy &

Decision-Making Processes affecting

their rights and benefits as may be

provided by law

( RELATED LAWS:

1. CIVIL CODE: see Arts. 1700, 1701and 1703

2. REVISED PENAL CODE: Art. 289

3. OTHERS: SSS Law, GSIS Law, Agrarian Reform Law, the 13th month pay law, the Magna Carta for Public Health Workers, etc.

( RATIONALE :

- The raison d etre of labor laws is the POLICE POWER of the State

( ART 3. DECLARATION OF BASIC POLICY

The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, age or creed, and regulate the relations between workers and employers. The State shall assure the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

( EMPLOYER - one who employs the services of others; one for whom employees work and who pays their wages or salaries.

( EMPLOYEE - one who works for an employer; a person working for salary or wages

( ART 4. CONSTRUCTION IN FAVOR OF LABOR

( CONSTRUCTION IN FAVOR OF LABOR CLAUSE -this is with a view to apply the Code to the greater number of employees to enable them to avail of the benefits under the law (Abella vs. NLRC). The working mans welfare should be the primordial consideration.

This rule is applicable if there is a doubt as to the meaning of the legal or contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms.

These laws should be interpreted with a view to the fact that they are remedial in nature, they are enacted to better the lot

and promote the welfare of the members of the laboring class.

Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order.

Courts adopt a liberal approach that favors the exercise of labor rights. The mandate under Art. 4 is simply to resolve doubt, if any, 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.

( MANAGEMENT RIGHTS: (CPST)

CRight to conduct business

PRight to prescribe rules

SRight to select employees

TRight to transfer or discharge employees

( MANAGEMENT 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 DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD)

Thus, so long as management prerogatives are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of employees under special law or under valid agreements, it shall be upheld.

( ART 5. RULES AND REGULATIONS

- The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.( ART 6. APPLICABILITY

( AGRICULTURAL OR FARM WORKER - one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activities performed by a farmer as an incident to or in conjunction with such farming operations.

There may be in one employer both agricultural as well as industrial workers. PURPOSE of the provision: intended to encourage workers to seek employment in agricultural enterprises instead of migrating to already overcrowded urban areas to find work in industrial establishments

- The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code.FARM EMPLOYER-FARM WORKER RELATIONSHIPTENANCY RELATIONSHIP

- The lease is one of labor with the agricultural laborer as the lessor of his services and the farm employer as the lessee- It is the landowner who is the lessor and the tenant the lessee of agricultural land

- The agricultural worker works for the farm employer and for his labor he receives a salary or wage, regardless of whether the employer makes a profit.- The tenant derives his income from the agricultural produce or harvest

CHAPTER II

EMANCIPATION OF TENANTS

(Note: not included as per SC Memo)

( ART 7-11

Share tenancy has been abolished placing in its stead leasehold system.

Under Art. 8, the land covered by operation land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in are.( Present retention limits:

5 hectares per landowner and 3 hectares per child provided the child is:

1. Is at least 15 years of age; and

2. Actually tilling the land or directly managing the farm

( EXCEPTIONS:

those covered by homestead patents

those covered by PD 27

( EMANCIPATION PATENT - is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation pf the tenant from the bondage of the soil.

( PROHIBITION AGAINST ALIENATION IS INTENDED TO:

1. Preserve the landholding in the hands of the owner-tiller and his heirs;

2. minimize land speculation; and

3. prevent a return to the regime of land ownership by a few.

BOOK ONE

PRE-EMPLOYMENT

TITLE I

RECRUITMENT AND PLACEMENT OF WORKERS

CHAPTER I

GENERAL PROVISIONS

( ART 13. DEFINITIONS

( WORKER -any member of the labor force, whether employed or unemployed

( RECRUITMENT AND PLACEMENT - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; PROVIDED, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. (CEC-TUCP) (RCPA)

-The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates the presumption.

( ART 16. PRIVATE RECRUITMENT

( ENTITIES AUTHORIZED TO RECRUIT

1. Public employment offices

2. Private recruitment entities; private employment agencies

3. Shipping or manning agents or representatives

4. The POEA

5. Construction contractors if authorized by the DOLE and the Construction Industry Authority

6. Members of the diplomatic corps (but hirings must also go thru POEA)

7. Other persons or entities as may be authorized by the DOLE secretary

( DOCUMENTATION OF WORKERS:

1. Contract Processing workers hired thru the POEA shall be issued the individual employment contract and such other documents as may be necessary for travel

2. Passport Documentation

3. Visa Arrangement

( ART 17. (POEA)

POEA has taken over the functions of the OEDB

( ADJUDICATORY FUNCTIONS OF THE POEA :

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; and

b. Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino Migrant Workers

( JURISDICTION TRANSFERRED TO THE LABOR ARBITERS OF THE NLRC :

a. claims arising out of an 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.

( Venue Money claims or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated, at the option of the complainant.

( Compromise Agreement - Consistent with the policy encouraging amicable settlement of labor disputes, Sec 10, RA 8042 allows resolution by compromise of cases filed with the NLRC.

( PREMATURE TERMINATION OF CONTRACT - Where the workers employment contract is terminated long before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Intl Construction Corp. vs. NLRC).

HOWEVER, under R.A. 8042, if the illegal dismissal took place on or after July 15, 1995, the illegally dismissed overseas worker shall be entitled to the full reimbursement of his placement fee with interest at the rate of 12% per annum plus salary for the unexpired portion of his employment contract or for 3 mos. for every year of the unexpired term whichever is LESS.

Claims for death and burial benefits involving seamen OCWs which the POEA has jurisdiction are not the same as the claims against the State Insurance Fund of the LC.- The basis for the award of backwages is the parties employment contract, stipulating the wages and benefits.

The fact that the employee has signed a satisfaction receipt does not result in waiver; the law does not consider asvalid any agreement to receive less compensation than what the worker is entitled to recover.(MR Yard Crew Union vs. PNR)

( ART 18. BAN ON DIRECT-HIRING

( Direct hiring of Filipino workers by a foreign employer is not allowed.

( EXCEPTIONS :

1. the members of the diplomatic corps;

2. international organizations;

3. such other employers as may be allowed by the Department of Labor and employment

4. name hirees individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation or any agency

( RATIONALE OF THE PROHIBITION

Filipino workers hired directly by a foreign employer, without government intervention may not be assured of the best possible terms and conditions of work. The foreign employer must also be protected and may chance upon a Filipino worker who do not possess sufficient knowledge for which he is employed.

( MINIMUM EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT:

1. Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the Administration

2. Free Transportation from point of hire to site of employment and return;

3. Free emergency medical and dental treatment and facilities;

4. Just causes for 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 possible the possible disposition thereof

7. Assistance on remittance of workers salaries, allowances or allotments to his beneficiaries; and

8. Free and adequate board and lodging facilities or compensatory food allowance at prevailing cost of living standards at the jobsite.

( ART 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

( MANDATORY REMITTANCE REQUIREMENTS:

1. Seamen or mariners: 80% of the basic salary;

2. Workers for Filipino Contractors and Construction Companies: 70% of the basic salary;

3. Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities: same as #2

4. All other professionals without board and lodging: 50% of the basic salary;

5. Domestic and other service of workers; 50% of the basic salary.

( ART 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS

( QUALIFICATIONS FOR PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM:

1. Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens;

2. Minimum capitalization of 1M in case of single proprietorship or partnership and a minimum of 1M paid-up capital for corporations;

3. Those not otherwise disqualified by law or these guidelines to engage in the recruitment and placement of workers for overseas employment

( DISQUALIFICATIONS:

1. Travel agencies and sales agencies of airline companies;

2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency;

3. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency.

4. Persons, partnerships, or corporations which have derogatory records;

5. Persons employed in the Department of Labor or in other government agencies directly involved in overseas employment program and their relatives within the 4th degree of consanguinity or affinity; or

6. Those whose license has been previously canceled or revoked.

CHAPTER II

REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES

( ART 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity.

Licensees or holders of authority or their duly authorized representatives may as a rule, undertake recruitment and placement activities only at their authorized official addresses. Change of ownership or relationship of single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license.

All overseas landbased workers shall be provided both life and personal accident insurance.( GROUNDS FOR DISCIPLINARY ACTION (Under the MWA of 1995) ;

1. Commission of a felony punishable by the laws of the Philippines or by the host country;

2. Drug addiction or possession or trafficking of prohibited drugs;

3. Desertion or abandonment;

4. Drunkenness, especially where the laws of the of the host country prohibit the same;

5. Gambling, especially where the laws of the host country prohibit the same;

6. Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions;

7. Creating trouble at the worksite or in the vessel;

8. Embezzlement of company funds or of money an properties of a fellow worker entrusted for delivery to kins or relatives in the Philippines;

9. Theft or robbery;

10. Prostitution;

11. Vandalism or destroying company property;

12. Gunrunning or possession of deadly weapons;

13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency; and

14. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker.

( ART 31. BONDS

Cash bond filed by applicants for license or authority is not subject to garnishment by judgment creditor of agency

( ART 32. FEES TO BE PAID BY WORKERS

Suspension or cancellation of licenses may include award of damages to repair the injury caused to its victims.

( ART 34. PROHIBITED PRACTICES

A supplementary contract beneficial to worker not violative of protection afforded by the State to workers.

( ART 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

( NON-LICENSEE OR 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 and the Secretary.

CHAPTER III

MISCELLANEOUS PROVISIONS

( ART 38. ILLEGAL RECRUITMENT (as per RA 8042 otherwise known as the Migrant Workers Act of 1995)

( ILLEGAL RECRUITMENT - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not when undertaken by a non-licensee

or non-holder of authority.

PROVIDED that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the commission of prohibited acts whether committed by a non-licensee or non-holder of authority or a licensee or holder of authority.( PROHIBITED PRACTICES: (CFGIIEOFSBWF)

Cto charge or accept amount beyond amount allowed by law

F

to furnish or publish false notice or information in relation to Recruitment and Placement

G

to give any false notice and information or commit any act of misrepresentation to secure license or authority

I

Induce or attempt to induce workers to quit employment to offer him another except if the transfer is to liberate a worker from oppressive terms and conditions of employment (NOTE: it is not necessary that worker was actually induced or did quit employment)

I

to influence or attempt to influence any person or entity not to employ any worker who has not applied for employment in his agency

Eto engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Phil.

OObstruct or attempt to obstruct inspection by Secretary

FFail to file reports

SSubstitute or alter employment contracts

BBecome officer or Board member of corporation engaged in travel agency

WWithhold or deny travel documents before the departure for monetary or financial consideration other than those authorized by the Code.

FFailure to actually deploy without valid reason as determined by the DOLE

FFailure 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

( THE QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL RECRUITMENT AS A CRIME INVOLVING ECONOMIC SABOTAGE ARE :

(a) When committed by a SYNDICATE i.e., if it is carried out by a group of three (3) or more persons conspiring and confederating with one another; or

(b) When committed in a LARGE SCALE i.e., if it is committed against three (3) or more persons

( VENUE OF ACTIONS ON ILLEGAL RECRUITMENT:

1. RTC of the province or city where the offense was committed; or

2. where the offended party resides at the time of the commission of the offense

( at the option of the complainant

These circumstances only qualify. They do not define the offense themselves

Recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment. ART. 38 ( c ) declared unconstitutional since only a judge may issue search warrant/ warrant of arrest. The Sec. Of Labor may only recommend not issue. However, Closure of establishments of illegal recruiters may still be ordered by Secretary of Labor, same being essentially administrative and regulatory in nature.(Salazar vs. Achacoso and Marquez)( PRESCRIPTIVE PERIOD

Illegal Recruitment cases under RA 8042 shall prescribe in five (5) years Provided, however, That illegal recruitment cases involving economic sabotage shall prescribe in twenty (20) years.TITLE II

EMPLOYMENT OF NON-RESIDENT ALIENS

( ART 40. EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS

-Foreigners or domestic and foreign employers desiring to employ aliens must secure employment permit from the DOLE upon determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the alien is desired.

Foreigners may not be employed in certain nationalized business.- a non-resident alien worker and the employer shall bind themselves to train at least 2 Filipino understudies.( PROHIBITION AGAINST EMPLOYMENT OF ALIENS

Section 2-A of the Anti-Dummy Law prohibits the employment of aliens in establishment or entities which have under their name or control a right, franchise, privilege, property or business the exercise or enjoyment of which property or business the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned by such citizens.

( EXCEPTIONS TO THE PROHIBITION:

a. where the Secretary of Justice specifically authorizes the employment of technical personnel; or

b. where the aliens are elected members of the board of directors or governing body of corporations or association in proportion to their allowable participation in the capital of such entities.

BOOK TWO

HUMAN RESOURCES DEVELOPMENT

TITLE I

NATIONAL MANPOWER DEVELOPMENT PROGRAM

CHAPTER I

NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLELENTATION

( ART 45. DEFINITIONS

( MANPOWER - that portion of the nations population which has actual or potential capability to contribute directly to the production of goods and services.

( ENTREPRENEURSHIP - training for self-employment or assisting individual or small industries within the purview of this the LC.

TITLE II

TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

CHAPTER I

APPRENTICES

Types of Special Workers:

1. Apprentice

2. Learners

3. Handicapped

( ART 58. DEFINITION OF TERMS

( APPRENTICESHIP - practical training on the job supplemented by related theoretical instruction

( APPRENTICE - worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter

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

( APPRENTICESHIP AGREEMENT - an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training

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

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

( ART 59. QUALIFICATIONS OF APPRENTICES

( Qualifications of an Apprentice

1. at least 15 years of age; provided those who are at least 15 years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations and the apprenticeship agreement shall be signed in his behalf by the parent or guardian or authorized representative of DOLE.

2. vocational aptitude/ capacity for appropriate test

3. ability to comprehend and follow oral and written instructions

( ART 60. EMPLOYMENT OF APPRENTICES

Only employers in highly technical industries may hire apprentices and only in apprenticeable occupations as determined by the Sec. Of Labor

( Requisites for a VALID APPRENTICESHIP

1. QUALIFICATIONS OF THE APPRENTICE2. APPRENTICESHIP AGREEMENT DULY EXECUTED AND SIGNED PROVIDING FOR COMPENSATION NOT LESS THAN 75% OF THE APPLICABLE MINIMUM WAGE, EXCEPT ON-THE-JOB TRAINING (OJT)

3.APPRENTICESHIP PROGRAM DULY APPROVED BY DOLE

4. PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS.

( ART 71. DEDUCTIBILITY OF TRAINING COSTS

( Requisites for tax deductions in case employers have apprenticeship programs:

1. Program duly recognized by the Department of Labor

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

3. Pay his apprentices the minimum wage

( ART 72. APPRENTICES WITHOUT COMPENSATION

( Apprentices who may be hired without compensation:

1.those whose training on the job is

required by the school;

2.Training Program Curriculum;

3.Requisite for Graduation; or

4.A requisite for Board Examination

CHAPTER II

LEARNERS

( ART 73. LEARNERS DEFINED

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

APPRENTICESHIPLEARNERSHIP

1. Practical training on the job supplemented by related theoretical instruction. 1. Hiring of persons as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time.

2. Not less than 3 months practical training on the job but not more than 6 months2. Practical training on the job not to exceed 3 mos.

3. No Commitment to hire3. With Commitment to employ the learner as regular employee if he desires upon completion of learnership

4. In case of pretermination of the apprenticeship agreement, the worker is not considered as a regular employee4. Learner is considered as a regular employee in case of pretermination of contract after 2 mos. of training and the dismissal is without fault of learner

5. Highly technical industries and only in industrial occupation5. Semi-skilled / industrial occupations

Learners in piecework/ incentive - rate jobs are to be paid in full for the work done.

CHAPTER III

HANDICAPPED WORKERS( ART 78. DEFINITION

( HANDICAPPED WORKERS - Are those whose earning capacity is impaired by age or physical or mental deficiency or injury.

Subject to the provisions of the Code, handicapped workers may be hired as regular workers, apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they were hired.

qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Even a handicapped worker can acquire the status of a regular employee.

( Duration of employment - no minimum, no maximum. Dependent on agreement but is necessary that there is a specific duration

BOOK THREE

CONDITIONS OF EMPLOYMENT

TITLE I

WORKING CONDITIONS AND REST PERIODS

CHAPTER I

HOURS OF WORK

( ART 82. COVERAGE

( ELEMENTS OF EMPLOYER-EMPLOYEE RELATIONSHIP:

1. selection and engagement of the

employee

2. the payment of wages

3. the power of dismissal

4. the employers power to control the

employee (with respect to the means

and methods by which the work is to

be accomplished)

The last element as mentioned above is what is known as the CONTROL TEST - 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. This last element is the most important index of the existence of the relationship.

( EMPLOYEE - A natural person who is hired, directly or indirectly, by a natural or juridical person to perform activities related to the business of the hirer who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the hire.

( Employees Exempt from the Benefits of E-E Relationship

1. Government Employees

2. Managerial Employees

3. Field Personnel

4. Family Members dependent on the

employer for support

5. Domestic Helpers

6. Persons on the Personal Service of another

7. Workers Paid by Result

( GOVERNMENT EMPLOYEES - Refers only to employees of government agencies, instrumentalities or political subdivisions and of government corporations that are not incorporated under the Corporation Code, meaning those which have original charters.

( 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 members of the managerial staff

( Note: Definition applies only to the 8- hour Labor law

( FIELD PERSONNEL - Refer to 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.

( WORKERS PAID BY RESULTS - Method of computing compensation based on the work completed and not on the time spent in working.

( PIECE-RATE METHOD - Where pay is dependent on unit of product finished, preferred where the work process is repetitive and the out put is standardized and easily countable.

DOMESTIC HELPERS/ PERSONS RENDERING PERSONAL SERVICES - Perform services in the employers home which are usually necessary and desirable for the maintenance or enjoyment thereof, or ministers to the personal comfort, convenience or safety of the employer, as well as the members of the employers household.

The existence of employment relationship is determined by law and not by contract.

Whether or not an employer-employee relationship exists between the parties is a question of fact. The findings of the NLRC are accorded not only respect but finality if supported by substantial evidence.

( MANAGEMENT PREROGATIVE - except as otherwise 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 discipline, dismissal and recall of workers.

Management prerogative recognizes the right of the employer to advance its interest to prescribe standards of work and impose reasonable quotas or work assignments, and failure on the part of the employees to meet the requirement, impose in good faith, constitutes a just cause for his dismissal.

New owner/management group has no obligation to re-employ workers who freely and voluntarily accepted their separation pay and other benefits. A change of ownership in a business concern is not proscribed by law.

( ART 83. NORMAL HOURS OF WORK

- Shall not exceed 8 hours in a regular working

day

( PURPOSE

to safeguard the health and welfare of the laborer and in a way to minimize unemployment by utilizing different shifts

( REGULAR WORKING DAYS: The regular working days of covered employees shall not be more than five days in a workweek. The workweek may begin at any hour and on any day, including Saturday or Sunday, designated by the employer.

( ART 84. HOURS WORKED

SHALL INCLUDE:

1. All time during which an employee is required to be on duty or to be at a prescribed workplace; and

2. All time during which an employee is suffered or permitted to work

( 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 hour 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, to go elsewhere whether within or outside the premises of 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 for such work shall be considered as hours worked if the work is 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 time either if the imminence of the resumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employees own interest.

- Only the maximum is prescribed, not minimum. Part- time work is therefore not prohibited.( ENGAGED TO WAIT - when waiting is an integral part of the job, it is compensable

( WAITING TO BE ENGAGED - idle time is not working time, not compensable

( WHEN TRAVEL TIME COMPENSABLE:

1. Travel from home to work- refers to ordinary work travel but where the worker is made to work on an emergency call and travel is necessary in proceeding to the workplace, the time spent on travel is compensable

2. Travel that is all in a days work- time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked.

3. Travel away from home- travel that keeps an employee away from home overnight.

Work hours of seamen are governed by the same rules as land based employees. Thus, they must show sufficient proof that said work is actually performed.

Rest Periods of short duration during working hours shall be considered as hours worked.Preliminary activities compensable when controlled or required by employer and are pursued necessarily and primarily for the employers benefit,

( ART 85. MEAL PERIODS

( MEAL PERIODS

1. Should not be less than sixty (60) minutes, and is time-off/non-compensable

2. Under specified cases, may be less than sixty (60) minutes, but should not be less than twenty (20) minutes an must be with full pay.

3. If less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time

( NOTE: Employee must be completely relieved from duty. Otherwise, it is compensable as hours worked.

Mealtime is not compensable EXCEPT in cases where the lunch period or meal time is predominantly spent for the employers benefit or where it is less than 60 minutes.

Employees may request that their meal period be shortened so that they can leave work earlier that the previously established schedule.

( REQUISITES :

1. The employees voluntarily agree in writing to a shortened meal period and are willing to waive the overtime pay for such shortened meal period;

2. No diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period;

3. Work does not involve strenuous physical exertion and they are provided with adequate coffee breaks;

4. The value of benefits is equal with the compensation due them for the shortened meal period

5. OT pay will become due and demandable after the new time schedule; and

6. The arrangement is of temporary duration.

( ART 86. NIGHT SHIFT DIFFERENTIAL

( NIGHT SHIFT DIFFERENTIAL -Additional compensation of not less than ten percent (10%) of an employees regular wage for every hour of work done between 10:00 PM and 6:00 AM, whether or not this period is part of the workers regular shift.

If work done between 10 PM and 6 AM is overtime work, then the 10% night shift differential should be based on his overtime rate.

( RATIONALE

- it serves as an inducement of employment( ART 87. OVERTIME WORK

( OVERTIME PAY- Additional compensation for work performed beyond eight (8) hours within the workers 24-hour workday.

1. 30% of 130% if on a special holiday/rest day

2. 25% of regular wage if done on a regular workday

3. 30% of 150% if on special holiday AND rest day

4. 30% of 200% if on a regular holiday

( RATIONALE

- employee is given OT pay because he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do.

As a rule, cannot be waived, as it is intended to benefit laborers and employees. But when the waiver is made in consideration of benefits and privileges which may even exceed the overtime pay, the waiver may be permitted.

( NOTE: OT pay will not preclude payment of night shift differential pay.

Meal periods during overtime work is not given to workers performing overtime for the reason that OT work is usually for a short period ranging from one to three hours and to deduct from the same one full hour as meal period would reduce to nothing the employees OT work.

( WORK DAY - the 24-hour period which commences from the time the employee regularly starts to work. e.g., if the worker starts to work 8 am today, the workday is from 8am today up to 8 am tom.

The minimum normal working hours fixed by the Act need not be continuous to constitute the legal working day

Express approval by a superior is not a prerequisite to make overtime work compensable. HOWEVER, written authority after office hours during rest days and holidays are required for entitlement to compensation.

The right to OT pay cannot be waived. Such waiver is contrary to law and public policy.

( EXCEPTIONS:

1. When the waiver stipulates higher payment or rate of OT pay; or

2. Where the contract of employment requires work for more than eight hours of work at specified wage per day providing for a fixed hourly rate or that the daily wages include overtime pay.

( COMPRESSED WORKWEEK -allowable under the following conditions:

1. It is voluntary on the part of the worker

2. There will be no diminution of the weekly or monthly take-home pay and fringe benefits of the employees;

3. The value of the benefits that will accrue to the employees under the proposed schedule is more than or at least commensurate with the one-hour OT pay that is due them during weekdays based on the employees quantification

4. The one-hour OT pay will become due and payable if they are made or permitted to work on a day not scheduled for work on the compressed work week

5. The work does not involve strenuous physical

exertion and employees must have adequate rest periods

5. The arrangement is of temporary duration.

( ART 88. UNDERTIME NOT OFFSET BY OVERTIME

Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation.

( RATIONALE

An employees regular pay rate is lower than the overtime rate. Offsetting the undertime hours against the overtime hours would result in undue deprivation of the employees extra pay for overtime work.

( ART 89. EMERGENCY OVERTIME WORK

( WHEN WORKER MAY BE REQUIRED TO RENDER OT:

(WNUNCN)

W1. Country is at war or any other national/local emergency has been declared by the Chief Executive/Congress

N2. Necessary to prevent loss of life/property/ in case of actual/impending emergency in the locality

U3. There is urgent work to be performed on machines, installations, or equipment in order to avoid serious loss/damage to the employer or some other causes of similar nature

N4. Work is necessary to prevent loss/damage to perishable goods; and

C5. where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

N6. when it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon

( ART 90. REGULAR WAGE- include the cash wage only, without deduction

on account of facilities provided by the

employer

CHAPTER II

WEEKLY REST PERIOD( ART 91. RIGHT TO A WEEKLY REST DAY

Employees should be provided a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days.

Employer shall schedule the weekly rest day of his employees subject to collective bargaining agreement. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. But when such preference will prejudice the operations of the undertaking and the employer cannot normally result to other remedial measures, the employer may so schedule the weekly rest day that meets the employees choice for at least two (2) days a month

( ART 92. WHEN EMPLOYER MAY REQUIRE WORK ON A REST DAY

( WHEN EMPLOYEE MAY BE REQUIRED TO RENDER WORK ON A REST DAY:

1. 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

2. urgent work to be performed on the machinery, equipment or installation to avoid serious loss which the employer would otherwise suffer

3. abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures

4. prevent serious loss of perishable goods

5. nature of work requires continuous operation for seven days a week

6. work is necessary to avail of favorable weather or environmental conditions where performance or quality of work depends upon them

( ART 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK

this article does not prohibit a stipulation in the CBA for higher benefits

( SPECIAL HOLIDAYS

1. All Saints Day-November 1

2. Last Day of the Year-December 31

3. And all other days declared by law or ordinances to be a special holiday or non-working day

NOTE: worked = regular wage plus 30% premium pay

not worked = none

( ADDITIONAL COMPENSATION FOR WORK ON A REST DAY, SUNDAY OR HOLIDAY WORK:

1. Work on a scheduled rest day - 30% of regular wage

2. No regular workdays and rest days -30% of regular wage for work on Sundays & Holidays

3. Work on Special Holidays -30% of regular wage

4. Holiday Work falls on Scheduled Rest Day - 50% of regular wage

CHAPTER III

HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

( ART 94. RIGHT TO HOLIDAY PAY

( HOLIDAY PAY - A days pay given by law to an employee even if he does not work on a regular holiday. It is limited to the ten (10) regular holidays listed by law.

- employee should not have been absent

without pay on the working day preceding the

regular holiday

Art. 94(b) refers to regular holidays, special holidays are taken care of under Art. 93.

( PREMIUM PAY - Additional compensation for work performed on a scheduled rest day or holiday.( REGULAR HOLIDAYS:

1. New Years Day-January 1

2. Maundy Thursday-Movable date

3. Good Friday-Movable date

4. Araw ng Kagitingan-April 9

5. Labor Day-May 1

6. Independence Day-June 12

7. National Heroes Day`-Last Sunday of August

8. Bonifacio Day-November 30

9. Christmas Day-December 25

10. Rizal Day-December 30Note: Compensable whether worked or unworked.

(DOUBLE HOLIDAY PAY

1. 200% of the basic wage provided, he works on that day and was present or on leave with pay on the preceding workday. If on leave without pay, rate still applies if leave is authorized.

2. 400% if he worked as per DOLE Memo if there are 2 regular holidays in one day eg. April 9 and Good Friday. Provided the employee worked on the day prior to the regular holiday or on leave with pay or on authorized absence.

3. If there are two succeeding holidays eg., Maundy Thursday and Good Friday, the employee must be present the day before the scheduled regular holiday to be entitled to compensation to both otherwise, he must work on the first holiday to be entitled to holiday pay on the second regular holiday.

REGULAR HOLIDAYSPECIAL HOLIDAY

- compensable even if unworked subject to certain conditions - not compensable if unworked

- limited to the 10 enumerated by the LC- not exclusive since law may provide for other special holidays

- rate is twice the regular rate if worked- rate is 130% if worked

( ART 95. RIGHT TO SERVICE INCENTIVE LEAVE

( SERVICE INCENTIVE LEAVE (SIL) - Five (5) days leave with pay for every employee who has rendered at least one (1) year of service.

( BUT DOES NOT APPLY TO THOSE WHO ARE:

1. already enjoying the said benefits; or2. enjoying vacation leave with pay for at least 5 days3. those employed in establishments regularly employing less than 10 employees

4. those employed in establishments exempted from granting this benefit by the Secretary of Labor.

( ONE (1) YEAR OF SERVICE.- service within 12 months, whether continuous or broken, reckoned from the date the employee started working including authorized absences and paid regular holidays unless the number of working day in the establishment as a matter of practice or policy, or provided in the employment contract is less than 12 mos.

SIL is commutable i.e., convertible to cash- the cash equivalent is aimed primarily at encouraging workers to work continuously and with dedication to the company.

( ART 96. SERVICE CHARGES

( TO BE DISTRIBUTED TWICE A MONTH AND AT THE RATE OF:

1. 85% for all covered employees to be equally distributed among them

2. 15% for management (may answer for losses and breakages or distributed to management)

If collection of service charges is abolished, the share of covered employees shall be considered integrated in their wages on the basis of the average monthly share of each employee for the past 12 months immediately preceding the abolition.

TITLE II

WAGES

CHAPTER I

PRELIMINARY MATTERS

( ART 97. DEFINITION

( WAGE - the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis or other method or calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done or for services rendered or to be rendered and includes the fair and reasonable value of board, lodging, or other facilities customarily furnished by the employer to the employee.

FAIR DAYS WAGE FOR A FAIR DAYS LABOR - 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.

WAGESALARY

- compensation for manual labor- denotes higher degree of employment

- Not subject to execution- subject to execution (Gaa vs. CA)

( FACILITIES shall include all articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or services primarily for the benefit of the employer or necessary to the conduct of the employers business.

FACILITIESSUPPLEMENTS

- Are items of expense necessary for the laborers and his familys existence and subsistence- Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings wages

- part of the wage- independent of the wage

- deductible from the wage- not wage deductible

( ART. 98. APPLICATION OF TITLE

( This Title shall not apply to the following:

1. household or domestic helpers

2. homeworkers engaged in needle-work

3. workers employed in any establishment duly registered with the National Cottage Industry

4. Workers in any duly registered cooperatives

CHAPTER II

MINIMUM WAGE RATES

( ART 100. PROHIBITION AGAINST ELIMINATION OR DIMUNITION OF BENEFITS

( LEGAL REQTS. BEFORE FACILITIES CAN BE DEDUCTED FROM THE EMPLOYEES WAGES:

1. Proof that such facilities are customarily furnished by the trade ;

2. Voluntarily Accepted in writing by the employee

3. Charged at Fair & Reasonable Value

( THE NON-DIMINUTION RULE -the benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten.

The rule is applicable if it is shown that the grant of the benefit is:

1. based on an express policy, or

2. has ripened into practice over a long period of time, and the practice is consistent and deliberate.

3. It is not due to an error in the construction /application of a doubtful or difficult question of law.

But even in cases of error, it should be shown that the correction is being done soon after the discovery of the error.

( BONUS - A supplement or employment benefit given under certain conditions, such as success of the business or greater production or output. As a rule, it is an amount granted voluntarily to an employee for his industry and loyalty which contributed to the success and realization of profits of the employers business. Therefore, from a legal point of view, it is not a demandable and enforceable obligation. Unless, it was promised to be given without any conditions imposed for its payment, as such, it is deemed part of the wage.

( 13TH MONTH PAY (OR ITS EQUIVALENT) -additional income based on wage required by P.D. 851 which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year.

- may be given anytime but not later than Dec. 24

COVERAGE:

- All rank-and-file employees regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided, that they have worked for at least one (1) month during the calendar year.

FORMS:

1. Christmas bonus

2. midyear bonus

3. profit sharing payments; and

4. other cash bonuses amounting to not less than 1/12 of its basic salary.

Difference of opinion on how to compute the 13th month pay does not justify a strike

It must always be in the form of legal tender . Free rice, electricity cash and stock dividends, COLA not equivalent

( ART 101. PAYMENT BY RESULTS

( CATEGORIES OF PIECE-RATE WORKERS:

1. those who are paid piece rates as prescribed in Piece Rate Orders by the DOLE

2. Those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE

( WORKERS PAID ON PIECE-RATE BASIS - shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.

BENEFITS PAYABLE TO PIECE-RATE WORKERS:

1. Applicable statutory minimum daily rate;

2. Yearly service incentive leave of five days with pay;

3. Night shift differential pay

4. Holiday pay

5. Meal and rest periods

6. OT pay (conditional)

7. Premium pay (conditional)

8. 13th month pay

9. other benefits granted by law, individual or collective bargaining agreement or company policy or practice.

CHAPTER III

PAYMENT OF WAGES

( ART 102. FORMS OF PAYMENT

( EMPLOYER CANNOT PAY HIS WORKERS BY MEANS OF:

1. promissory notes

2. vouchers

3. coupons

4. tokens

5. tickets

6. chits

7. or any object.

GENERAL RULE:

payment by legal tender

EXCEPTIONS:

checks or money orders may be paid if:

1. the same is customary on the date of effectivity of the LC;

2. necessary because of special circumstances; or

3. as stipulated in the CBA

( ART 103. TIME OF PAYMENT

( WHEN TO PAY:

at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days- force majeure or other circumstances beyond the employers control, payment must be made immediately after such occurrence have ceased.

( ART.104. PLACE OF PAYMENT

( WHERE TO PAY:

Shall be made at or near the place of undertaking, ( EXCEPTIONS:

1. When payment cannot be effected at or near the place of work by reason of deterioration of peace and security

2. When the employer provides for free transportation to the employees back and forth;

3. And under analogous circumstances

payment of wages in bars, night or day clubs, massage clinics or similar establishments are prohibited except for the workers therein.

PAYMENT THRU BANKS:

REQUISITES :

1. There must be written permission of the majority of the employees concerned in an establishment;2. The establishment must have 25 or more employees; and3. The bank must be located within one kilometer radius to the bank from the location of the establishment- payment through the ATM is allowed

( ART 105. DIRECT PAYMENT OF WAGES

( TO WHOM PAID

wages shall be paid directly to the workers to whom they are due.

( EXCEPTIONS:a. in case of force majeure/special circumstances, payment may be made through another person under written authority where the worker has died, the

b. employer may pay the wages of the deceased worker to the heirs of the latter, through the Secretary of Labor or his representative, without the necessity of intestate proceedings, after the heirs have executed an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all others

( ART 106. CONTRACTOR OR SUBCONTRACTOR

( LABOR ONLY CONTRACTING - where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such persons are performing activities which are directly related to the principal business of such employer.

( INDEPENDENT CONTRACTOR - one who exercises independent employment and contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result thereof.

A mere statement in a contract with a company that laborers who are paid according to the amount and quality of work are independent contractors does not change their status as mere employees in contemplation of labor laws.( REQUISITES FOR A CONTRACTING OR SUBCONTRACTING TO BE :

1. where the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

2. the contractor or subcontractor has substantial capital or investment; and

3. the agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure and social and welfare benefits.

Substantial capital need not be coupled with investment in tools or equipment. This is clear from the use of the conjunction or.JOB CONTRACTINGLABOR ONLY CONTRACTING

1. No E- E relationship exist between employer and the contractors employee except when the contractor or subcontractor fails to pay the wages of his employees1. Employer is treated as direct employer of the person recruited in all instances

2. liability is limited to unpaid wages and other labor standards violations2. liable to all rights duties and liabilities under labor standards laws including the right to self- organization

3. Permissible3. Prohibited by law

4. Contractor has substantial capital or investment4. Contractor has no substantial capital/ investment

( WORKING CONDITIONS - Refers to the terms and circumstances affecting the employment of an employee, including policies, programs and regulations governing his employment status, work, and work relationships. They are, as a rule, determined by the employer.

( ART. 110. WORKER PREFERENCE IN CASE OF BANKRUPTCY

This Article did not sweep away the overriding preference accorded under the scheme of the Civil Code to tax claims of the government.

- just a preference, must yield to special

preferred credit, e.g. secured creditors

The formal declaration of insolvency or bankruptcy or a judicial liquidation of the employers business is a condition sine qua non to the operation of the preference accorded to workers under Art. 110.

CHAPTER IV

PROHIBITIONS REGARDING WAGES

( ART 112. NON-INTERFERENCE IN DISPOSAL OF WAGES

In relation to the Civil Code:

Art. 1705. The laborers wages shall be paid in legal currency.

Art. 1706. Withholding of the wages except for a debt due, shall not be made by the employer

Art. 1707. The laborers wages shall be a lien on the goods manufactured or the work done.

Art. 1708. The laborers wages shall not be subject to execution or attachment except for debts incurred for food, shelter, clothing, and medical attendance.

Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.

( PROHIBITIONS REGARDING WAGES:

1. Payment of wages with less frequency than once (1) a month.

2. Limitations/Interference by the employer with the employees freedom to dispose of his wages.

3. Forcing, Compelling/Obliging employees to purchase merchandise , commodities or other properties from the employer or from any other person, or to make use of any store or service of such employer or any other person

4. Withholding of wages

5. Deduction of wages as consideration of a promise of employment or retention in employment

6. Refusal to pay/ Reduction of wages and benefits, discharge/ discrimination against any employee as retaliatory measures against any employee who has filed any complaint or instituted any proceedings against his employer

( ART 113. WAGE DEDUCTION

( ALLOWABLE DEDUCTIONS:WITH EMPLOYEES CONSENT:

1. SSS Payments

2. MEDICARE

3. Contributions to PAG-IBIG Funds

4. value of meals and others

5. payments to third persons with employees consent

6. deduction of absences

W/OUT EMPLOYEES CONSENT:1. Workers insurance acquired by the employer

2. Union Dues, where the right to check-off has

been recognized by the employer

3. Cases where the employer is authorized by

law or regulations issued by the Secretary of

Labor

4. debts of the employee to the employer which

have become due and demandable

( ART 114. DEPOSITS FOR LOSS OR DAMAGE Deposits for Loss or Damage to tools, materials and equipment supplied by the employer shall not be made, EXCEPT when the trade, occupation or businesses of the employer recognizes, or considers the practice of making deductions or requiring deposits necessary or desirable.

( REQUISITES FOR DEDUCTION FOR LOSS OR DAMAGE :

1. employee clearly shown responsible

2. opportunity to show cause to show why deduction should not be made

3. deduction is fair and reasonable and shall not exceed the actual loss or damage

4. does not exceed 20% of the employees wages in a week.

CHAPTER V

WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION

( ART 122. CREATION OF THE REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARDS

( WHO MAY SET MINIMUM WAGE:

1. Regional Tripartite Wages and Productivity Board

2. Congress

MINIMUM WAGE - The lowest wage rate fixed by law that an employer can pay his employees.

( ART. 123 WAGE ORDER

( WAGE ORDER an order issued by the Regional Board whenever the conditions in the region so warrant after investigating and studying all pertinent facts and based on the standards and criteria prescribed by the LC, the Regional Board proceeds to determine whether to issue the same or not.

( EFFECTIVITY of a wage Order it shall take effect after 15 days from the its complete publication in at least one newspaper of general circulation in the region.

( FREQUENCY of a wage order - 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. EXCEPTION: When Congress itself issues a law increasing wages.( ART 124. STANDARDS/CRITERIA FOR MINIMUM WAGE FIXING

( FACTORS FOR DETERMINING REGIONAL MINIMUM WAGE RATES (DACNNIPFEE)

1. Demand for living wages;

2. Wage Adjustment vis-a vis the consumer price index;

3. Cost of living and changes or increases therein;

4. Needs of workers and their families;

5. Need to induce industries to invest in the countryside;

6. Improvements in standards of living;

7. 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. Equitable Distribution of Income & Wealth along the imperatives of economic and social development

( WAGE DISTORTION - 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 or other logical bases of differentiation.

( CORRECTING WAGE DISTORTION

Unionized Establishment

1. Negotiate to correct the distortion.

2. Any dispute arising therefrom should be resolved through grievance procedure under their CBA.

3. If the dispute remains unresolved, through voluntary arbitration.

Establishments without Unions

1. The employers and workers shall endeavor to correct the distortion.

2. Any dispute arising therefrom shall be settled through the NCMB and

3. If it remains unresolved after 10 days of conciliation, it shall be referred to the NLRC.

Wage distortion is non- strikeable.

( Is the employer legally obliged to try & correct a wage distortion?

It appears so. Article 124 of the Code provides that the employer and the union shall negotiate to correct the distortions. If there is no union, the employer and the workers shall endeavor to correct such distortions.

( Must the previous pay gaps be restored?

While that is the aim, it need not necessarily be restored to the last peso. An appreciable differential, a significant pay gap should suffice as correction of the distortion.

CHAPTER VII

ADMINISTRATION AND

ENFORCEMENT

( ART. 128. VISITORIAL AND ENFORCEMENT POWER

( ART. 129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS

Under Art. 129, the Regional Director is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interests.

( REQUISITES :

1. The claim is presented by an employee or person employed in domestic or household service or househelper;

2. The claim arises from employer-employee relations;

3. The claimant does not seek reinstatement; and

4. The aggregate money claim of each employee or househelper does not exceed P5, 000.00

Access to employers records and premises

( the day/night whenever work is being undertaken therein

( includes the right to copy therefrom, to question any employee & investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Code and of any labor law, wage order, or rules and regulations

Issue Compliance Orders (ART. 128)(based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection

Issue Writs of Execution (ART. 128)(for the enforcement of orders

(except in cases where the employer contests the findings of the said labor officers and raises issues supported by documentary proofs which were not considered in the course of inspection.

Order Work Stoppage/Suspension of Operations

( when non-compliance with the law or implementing rules and regulations poses grave & imminent danger to the health and safety of the workers in the workplace.

Conduct Hearings within 24 hours

( to determine whether an order for stoppage of work/suspension of operations shall be lifted or not.

( employer shall pay the employees concerned their salaries in case the violation is attributable to his fault

Require employers to keep and maintain Employment Records

-( as may be necessary in aid of his visitorial and enforcement powers

ART 128ART 129

1. Visitorial and enforcement power of the Secretary of Labor /his duly authorized representatives exercised through routine inspections of establishments1. Power of the Regional Director or any duly authorized hearing officers to hear and decide matters involving the recovery of wages, upon complaint of any interested party

2. requires the existence of E-E Relationship2. E-E relationship not necessary since it should not include a claim for reinstatement

3. No limit as to amount of claim3. Aggregate claim of each complainant does not exceed P5,000

4. Appeal is with Sec.of Labor ; period of appeal is 10 calendar days4. Appeal with NLRC; period of appeal is 5 calendar days

5. Person exercising the power is the Sec. Of Labor or any of his duly authorized representatives who may or may not be a regional director5. The power is vested upon a regional director or any duly authorized hearing officer of the DOLE.

TITLE III

WORKING CONDITIONS FOR SPECIAL GROUP OF EMPLOYEES

CHAPTER I

EMPLOYMENT OF WOMEN

( ART 130. NIGHTWORK PROHIBITION

No woman , regardless of age, shall be employed or permitted or suffered to work, with or without compensation in any :

1. Industrial undertaking between 10PM-6AM2. Commercial/Non-Industrial undertaking between 12 MN-6AM3. Agricultural undertaking at nighttime unless, she is given a period of rest of not less than 9 consecutive hours( ART 131. EXCEPTIONS

1. Actual/Impending Emergencies

caused by serious accident, flood,

typhoon, 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. Urgent work to be performed on machineries, equipment or installation, to avoid serious loss3. Work is necessary to prevent serious loss of perishable goods4. Where she holds a responsible position of managerial/technical nature/engaged to provide health and welfare service5. Nature of the work requires the manual skill and dexterity of women workers & cannot be performed with equal efficiency by male workers6. Where women workers are immediate family members of the family operating the establishment or undertaking7. Analogous cases ( ART 132. FACILITIES FOR WOMEN

(The Secretary of Labor may require employers to:

1. Provide seats proper for women and permit them to use the seats when they are free from work or during office hours provided the quality of the work will not be compromised;

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 the establishment;

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

( ART. 133 MATERNITY LEAVE BENEFITS

( MATERNITY LEAVE UNDER THE SSS LAW

A female member, who need not be legally married, who has paid for at least three (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 60 days or 78 days, in case of caesarian delivery.

REQUISITES :

1. Employee notified her employer of her pregnancy of the probable date of her childbirth

2. Full payment be advanced by the employer within 30 days from the filing of the maternity leave application

3. That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits

4. That the maternity benefits shall be paid only for the first four (4) deliveries or miscarriages

5. That the SSS shall immediately reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer

6. That if an employee member should give birth or suffer a miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to.

ART 133 (b) subsists, i.e., the maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, or miscarriage, which renders the woman unfit for work , unless she has earned unused leave credits from which such extended leave may be charged.

( LIMIT OF THE BENEFIT: Applies only for the first four deliveries irrespective of who is the father of the children, and may not be availed of in addition to sickness benefit under the Social Security program.

( RA 8187 (PATERNITY LEAVE)

This law grants paternity leave of seven day with full pay to all married male employees in the private and public sectors.

It is available only for the first four deliveries of the legitimate spouse with whom the husband is cohabiting.

DELIVERY includes childbirth, miscarriage, or abortion.

Purpose: to enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child.

( CONDITIONS :

1. he is an employee at he time of the delivery of his child;

2. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage;

3. he has applied for paternity leave ; and

4. his wife has given birth or suffered a miscarriage

Paternity leave, if not availed of, is not convertible to cash.

WIFE - refers to the lawful wife which means the woman who is legally married to the male employee concerned.

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 employer and employee and the existing paternity benefit is greater, the greater benefit shall prevail; if lesser, the existing benefit shall be adjusted to the extent of the difference.

( ART 135. DISCRIMINATION PROHIBITED

It shall be 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:

a. Payment of a lesser compensation for work of equal value.

b. Favoring a male employee over a female employee solely on the account of their sexes.

Sexual Harassment in a Work-Related or Employment Environment :

1. the sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee

2. the above acts would impair the employees rights or privileges under existing labor laws or

3. The above acts would result in an intimidating, hostile, or offensive environment (Sec. 3[a], RA No. 7877)( ART 136. STIPULATION AGAINST MARRIAGE

- it shall be unlawful for an employer to require as a condition for employment or 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.

( ART 138. CLASSIFICATION OF CERTAIN WOMEN WORKERS

Any woman who is permitted to work or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation.

CHAPTER II

EMPLOYMENT OF MINORS

( ART 139. MINIMUM EMPLOYABLE AGE

Any person between ages 15 and 18 may be employed in any non hazardous work.

( Exception and condition on the employment of a child below 15:1. When the child works directly under the sole responsibility of his/her parents or legal guardian who employs members of his/her family only under the following conditions:

a. employment does not endanger the childs life, safety, health and morals

b. employment does not impair the childs normal development

c. the parent/legal guardian provides the child with the primary and/or secondary education prescribed by DECS

2. Where the childs employment or participation in public entertainment or information through cinema, theater, radio, or television is essential, provided that:

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; and

c. The conditions prescribed for the employment of minors {above stated} are met.

NONHAZARDOUS WORK OR UNDERTAKING one where the employee is not exposed to any risk which constitutes an imminent danger to his safety and health.

( HAZARDOUS WORKPLACES:

1. Where the nature of the work exposes the workers to dangerous environmental elements, contaminants or work conditions;

2. Where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing, and mechanized farming;

3. Where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products;

4. Where the workers use or are exposed to heavy or power-driven machinery or equipment; and

5. Where the workers use or are exposed to power-driven tools,

CHAPTER III

EMPLOYMENT OF HOUSEHELPERS

( RIGHTS OF HOUSEHELPERS:

1. minimum cash wage

2. non-assignment to non- household work

3. opportunity for education: if under 18 (cause of education part of compensation)

4. board/ lodging, medical attendance

5. just and humane treatment

6. indemnity for unjust termination of services

7. just causes for termination

8. right not to be required to work more than 10 hours a day

9. for days vacation each month

10. to regular wages if employed in industrial or commercial or agricultural undertaking

11. funeral expenses must be paid by employer if the househelper has no relatives with sufficient means in the place where the head of the family lives.

12. at least elementary education

13. employment certification

CHAPTER IV

EMPLOYMENT OF HOMEWORKERS

( INDUSTRIAL HOMEWORK - a system of production under which work for an employer or contractor is carried out by a homeworker at his home.

( INDUSTRIAL HOMEWORKER - a worker who is engaged in industrial homework

BOOK FOUR

HEALTH, SAFETY AND SOCIAL WELFARE BENEFITS

TITLE I

MEDICAL, DENTAL AND OCCUPATIONAL SAFETY

CHAPTER I

MEDICAL AND DENTAL SERVICES

( ART 156. FIRST-AID TREATMENT

( 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 Phil. National Red Cross or by any other organization accredited by the former.

TITLE II

EMPLOYEES COMPENSATION AND STATE INSURANCE FUND( WORKMENS COMPENSATON- A general and comprehensive term applied to those laws providing for compensation for loss resulting from the injury, disablement or death of a workman through industrial accident, casualty or disease.

( COMPENSATION -Money relief afforded 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 ACTEMPLOYEES COMPENSATION LAW

1. There is a presumption of compensability1. no presumption of compensability

2. there is a presumption of aggravation2. no presumption of aggravation

3. there is a need for the employer to controvert the claim within 14 days otherwise he is deemed to have waived the right3. no need for the employer to controvert

4. payment of compensation made by the employer4. payment of compensation made by SSS/GSIS through the State Insurance Fund

( ART 164. DEFINITION OF TERMS.

( INJURY - Any harmful change in the human organism from any accident arising out of and in the course of employment.

( GROUNDS FOR AN INJURY TO BE COMPENSABLE

1. the employee must have been injured at the place where the work requires 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 for the employer

4. the injury was not due to the employees intoxication, willful intention to injure or kill himself or another, notorious negligence or otherwise prohibited under this Title.

( SICKNESS - Any illness definitely accepted as an occupational disease listed by the Commission or any illness caused by employment subject to proof that the risk of contracting the same is increased by working conditions.

( Conditions for an occupational disease and the resulting disability or death to be compensable :

1. The 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 a period of exposure and under such other 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 as a general rule, the accident should have occurred at the place of work to be compensable

( EXCEPTIONS TO THE DIRECT PREMISES RULE

1. INGRESS- EGRESS/ PROXIMITY RULE- when the employer is about to leave or about to enter the premises of the employer by way of the customary or exclusive means of ingress or egress.

2. GOING TO OR COMING FROM WORK- when the injury occurred when the employee is proceeding to or from his work on the premises of the employer

(must be a continuing act and has not diverted therefrom by any other activity and he has not departed from his usual route to or from his workplace and if the employee is on a special errand, it must have been official and in connection with his work.

3. EXTRA-PREMISES RULE (or the shuttle bus rule) where the company 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.

4. 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.

5. 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 own going or coming trip.

6. SPECIAL ENGAGEMENT RULE covers field trips, outings, intramurals and picnics when initiated or sanctioned by the employer

7. 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

8. FORCE MAJEURE OR AN ACT OF GOD- when one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets an accident although one which any other person then and there present would have met irrespective of his employment.

CHAPTER II

COVERAGE AND LIABILITY

( ART 168. COMPULSORY COVERAGE

ECL applies to all employers, public or private, and to all employees, public or private including casual, emergency, temporary, or substitute employees.

Every employee is covered who is not over 60 years over 60 years of age or over 60 years of age if he had been paying contributions prior to the age of 60

( ART 170. EFFECTIVE DATE OF COVERAGE

The employer is covered compulsorily from first day of operation and the employee from the first day of employment

( ART 172. LIMITATIONS OF LIABILITY

NO COMPENSATION can be obtained if the injury, death or disability is a result of the employees:

1. Intoxication;

2. Willful intention to injure or kill himself or another;

3. Notorious negligence; or

4. Unless otherwise provided by the LC

( NOTORIOUS NEGLIGENCE deliberate act of the employee to disregard his own personal safety.

( Is death through suicide compensable ?

As a rule NO. However as held in NAESS vs. NLRC, the supreme court ruled that a self inflicted death could be compensable if :

1. by agreement of the parties

2. The suicide/death is caused by a work related or compensable illness or disease.

( ART 173. EXTENT OF LIABILITY

Simultaneous recovery under the Labor Code and the Civil Code cannot be 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.

Simultaneous recovery under the LC and the SSS can be made as per an advisory opinion dated May 23, 1989 of Sec. Drilon since PD 1921 has lifted the ban on simultaneous recovery.

( STATE INSURANCE FUND: all covered employers are required to remit to a common fund a monthly contribution equivalent to one percent of the monthly salary credit of every covered employee. The employee pays no contribution to the fund. Any agreement to the contrary is prohibited.

CHAPTER VI

DISABILITY BENEFITS

DISABILITY CATEGORIES:

( 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

( 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

( 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 ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution. The income benefit shall be guaranteed for five years.

( DEPENDENTS:

1. the legitimate, legitimated, 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 that 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. the parents of said employee wholly dependent upon him for regular support

( BENEFITS

1. for life to the primary beneficiaries, guara