LABOR LAW REVIEW LECTURE NOTES 7/30/2012 1:51:00 AM

WAGES- Should be paid by reason of Er-Ee relationship. If paid in consideration of labor= wages If paid in consideration of results= not wages Salaries vs. wages Salary denotes a higher position. Important Distinction- wages cannot be garnished or be subject of a writ of execution (Civil Code) How about Salaries? According to SC, it is not exempted from garnishment or execution. How about Commissions? If there is Er-EE= considered wages Bonus? Generally not considered as wages. It is a grant out of pure liberality of the Er. Bonus as part of wages: 1. given as a fixed amount without conditions regardless of profits realized. 2. Ripened into company practice Requisites: a. consistent b. voluntary c. deliberately given for a long period of time Facilities- part of wages Ex. Housing, board/lodging, rice subsidy etc It is important to determine if it is part of the wages because the Er can validly deduct the cost of these facilities from the wages of the Ee. Requisites: a. Grant is customarily given b. c. Cost to be deducted is fair and reasonable Ee voluntarily accepts

d. Written authorization to deduct. Supplements- do not form part of wages. This is given to augment the wages of the employee. Art. 100 NON-DIMUNITION OF BENEFITS If benefits are granted voluntarily and unconditionally, this grant becomes part of the wages. If there is no reduction of benefits, Art. 100 DOES NOT APPLY.

Can the Er stop giving benefits granted by the State? Yes. The state does not create a vested right by granting these benefits. Min. Wages- delegated to the regional tripartite and productivity board (sets the minimum wage) Congress can still enact Minimum Wage Legislation. What is the Effect if the Er refuses or fails to comply with the Minimum wage? 1. There is criminal liability 2. Double indemnity- double payment of wages. WAGE DISTORTION- must be within the same region and the same establishment. Definition in Art. 124. ELEMENTS: 1. Establishment must have an existing hiearchy of position with wage structure. (This is done/created by the Er) 2. There must be a wage order. This is issued by the RTWPB. It is a government issued increase. 3. Elimination or severe contraction of the distinction between 2 levels of position. Ex. Secretary Php500 Clerk Php450 Janitor Php400 Plus Php50 wage increase for janitors. Clerk Php450 Janitor Php450 4. Determine if the establishment is organized or an unorganizedestablishment. Organized- union and management to negotiate correction of the distortion. If this fails, resort to grievance machinery as provided in the CBA. If the latter resort still fails, the case will be referred to voluntary arbitration. Unorganized- Ees and management to negotiate correction of distortion. They can bring the matter to the National Conciliation and mediation board. If the latter fails, they can bring the matter to the NLRC for compulsory arbitration. PAYMENT OF WAGES

Medium= Cash/Legal Tender as provided by law. Even if the Ee agrees to accept a medium that is not legal tender. Managers Check- not legal tender. Non-payment of wages in legal tender- not considered paid. The Ee can file an action for non-payment of wages. How Often Paid? 2x a month, once every 2 weeks at intervals not to exceed 15days. Place of payment- at or near the place of work. Except: when there is a deterioration of peace and order. Cannot be paid in recreational places ex. Casino To whom paid? Directly to ee. Except: Ee authorizes in writing a member of his/her family or other person, or payment impossible due to force majeure or Ee has died. In case of death, wages should be paid to heirs not subject of estate proceedings. The heirs must execute an affidavit that they are the heirs of the deceased Ee. Art. 110 insolvency or bankruptcy of Er. First preference: wages of laborers. (Relate to concurrence and preference of credits under the Civil Code) There should be a judicial declaration or insolvency proceedings or liquidation proceedings. Deposit for loss or damage to Er property by the Ee. This must not exceed 20% of the weekly wages of the Ee. CONTRACTING/SUBCONTRACTING 3 Parties: 1. Employer 2. Contractor 3. Employee of Contractors This is allowed as long entered into with an independent contractor. Contractor must have independent business, substantial capital, do the task or job by his own means free from influence of the Er. Contractor controls the means and method of performing the work. Under a new Department Order- Contractors are required to register under the DOLE. Failure to register, they will presumed to be labor-only contractors.

Effects of Contracting Arrangement: 1. Ees of the contractor do not become Ees of the Principal Employer who hired the services of the contractor. Only when the contractor fails to pay the wages of its Es will the Principal be held liable but only to the extent of the contract. Liability for unpaid wages is solidary. There is no solidarity with regard to backwages, separation pay. Contractor + Government Agency (Principal)= If the contractor fails to pay, the government agency may be held liable to pay unpaid wages to the extent of the contract. Illegal Contracting Labor-Only Contractor- in the business of providing workers only to an Employer to perform a task, job, related to the principal business, and is without substantial capital. Labor only contracting is prohibited. Ees under a labor only contracting arrangement are deemed regular Ees of the principal and are entitled to benefits. The Labor Contractor is considered only as an agent or intermediary. Art. 128 VISITORIAL POWER Authority of the Secretary of Labor and Employment or his representative to inspect the records of an Er, investigate if there is any violation of labor standards. Refers to benefits and occupational Health and safety standards in a workplace. This is exercised at any time of the day or night whenever there is work performed. ENFORCEMENT POWER- S.O.L.E. power to issue orders for compliance of labor standards in case of a finding that there was a violation of the same by the Er. Limitation: if the Er contests the findings and raises issues supported by documentary proof. Art. 129 Jurisdictional limit- 5k. Art. 128 There is no limit as to the amount, can be exercised over the entire establishment of the Er.

Enforcement Power is applicable to all Ees regardless of the fact WON they signed the complaint. If the SOLE issues compliance order, Er can appeal with the SOLE. If compliance order is issued by the Regional Director, the same is appealable before the SOLE within 10 days. Art. 129 ADJUDICATORY POWER Basis of exercise: the complaint filed by the Ees not exceeding the amount of 5k. Employees are no longer connected with the employer. Employees no longer seek reinstatement. Any decision rendered is appealable to the NLRC within 5 calendar days. Visitorial Power- appealable to the SOLE within 10 days Adjudicatory Power- appealable to the NLRC within 5 days. 13TH MONTH PAY Extra renumeration. Basis for Computation: basic salary of the Ee. This is given to Ees who have at least rendered 1 month of service. Ees already receiving its equivalent are no longer entitled to the 13th month pay. Ex. Christmas Bonus. They will only be entitled to the balance if the bonus does not exceed the total amount of the 13th month pay. SPECIAL TYPES OF EMPLOYEES 1. Non-resident Aliens should secure an employment permit validity: 1year Alien with employment permit cannot transfer to another employer using the same permit. He must secure a new one and seek its approval by the SOLE. Grounds for Cancellation or suspension of permit (refer to book) Decision cancelling or suspending employment permit is appealable to the SOLE. 2. Apprentice Apprenticeship- training with theoretical instruction. (refer to codal for definition of terms)

Can every employer hire an apprentice? No. only those within the highly technical indutsry can hire apprentices. Who are qualified? 1. at least 14 y/o. 2. must have the ability to follow and comprehend instructions 3. physically fit for work duration: 6 months Compensation: 75% of the statutory minimum wage. 3.Learners- those employed in semi-skilled occupations which can be learned in a period of three months. Duration: 3 months Compensation: 75% of statutory minimum wage. There is no need for theoretical instruction. 4.Handicap Workers- no longer considered as special employee. There is no more distinction between the handicap worker and an able bodied individual. 5.Employment of Women- co-equal, discrimination is prohibited, dismissal due to pregnancy, marriage is prohibited. 6.Child Workers (those below 18years old) min. age- 15y/o for employment. Children below 15 no longer allowed to be Ees Exception: 1. workers directly under supervision of parents/guardians and Ees are only family members. 2. Hired in public entertainment or information subject to: a. hours of work strictly observed. b. Does not endanger health and safety. c. Provided education d. Secured an employment permit from the DOLE. Restriction on Hours of Work: Below 15 y/o.- cannot work from 8pm-6am, not more than 4hrs/day or 20hrs/week

Above 15 y/o- cannot work from 10pm to 6am, not more than 8hrs/day or 40hrs/week. Other restrictions: Cannot be employed in commercials involving alcohol, pornography etc Cannot be employed in the worst form of labor. Ex. Hazardous places. 7.Household helpers/ Domestic service Initial Term: 2 years. If house help does not comply? Forefeiture of wages for 15 days If the Employer does not comply? Liable for 15 days worth of wages as indemnity. Termination of services of House Help. If for just cause: can be anytime No just cause: at the end of the stipulated period of services with 15 days compensation. Notice of termination/resignation: 5 days. 8.RA 10151 Employment of Night Workers (read the special law) Who are considered night workers? Thos who render work at night not less than 7hrs between 10am-6am.

7/30/2012 1:51:00 AM

7/30/2012 1:51:00 AM