Académique Documents
Professionnel Documents
Culture Documents
TABLE OF CONTENTS
LABOR LAW
B. CIVIL CODE................................................. 5
B. Definitions/Concepts ............................... 92
c. LABOR CODE.............................................. 5
a. COVERAGE ................................................19
G. LEAVES .................................................... 39
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I. Fundamental
Principle and Policies
A. CONSTITUTIONAL PROVISIONS
Due Process
(1) Substantive Due Process (dismissal should
be for a valid and authorized cause as
provided by law)
(2) Procedural (due notice and hearing).
Article III, Section 16. All persons shall have the right
to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
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B. CIVIL CODE
B.1. ARTICLE 19
Article 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
Liberal Construction
All doubts in the implementation and
interpretation of the provisions of this Code,
including its implementing rules and
regulations, shall be resolved in favour of
labor. [PAL v. Santos, G.R. No. 77875, February
4, 1993].
C. LABOR CODE
C.1. ARTICLE 3
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C.2. ARTICLE 4
LC, Art. 4. Construction in favor of labor. All doubts
in the implementation and interpretation of the
provisions of this Code, including its implementing
rules and regulations, shall be resolved in favor of
labor
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Duration of Validity
4 years (POEA Rules of 2002)
Citizenship requirement
(1) Only Filipino citizens or
(2) Corporations, partnerships or entities at
least seventy-five percent (75%) of the
authorized and voting capital stock of
which is owned and controlled by Filipino
citizens shall be permitted to participate in
the recruitment and placement of workers,
locally or overseas. (Art. 27, LC)
Prohibited practices
It shall be unlawful for any individual, entity,
licensee, or holder of authority:
(a) To charge or accept, directly or indirectly,
any amount greater than that specified in
the schedule of allowable fees prescribed
by the Secretary of Labor, or to make a
worker pay any amount greater than that
actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony,
information or document or commit any
act of misrepresentation for the purpose of
securing a license or authority under this
Code.
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e.
f.
g.
h.
i.
j.
k.
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Liabilities
Local Recruitment Agency
Illegal Recruitment Involving Local Workers
(Art. 39, LC)
Act
Illegal
recruitment
constituting economic
sabotage
Licensee or holder or
authority violating or
causing another to
violate Title I, Book I, LC
Violating or causing
another to violate Title I,
Book I, LC
13
Penalty
Life imprisonment AND
Fine: P100,000.00
2 years Imprisonment
5 years OR
P10,000 Fine
P50,000 OR both
4 years Imprisonment
8 years OR
P20,000 Fine
P100,000 OR both
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Prohibited
Act/s
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Penalty
12 years and 1 day
Imprisonment 20 years AND
P1M Fine P2M
Life imprisonment AND
P2M Fine P5M
Maximum penalty:
1. illegally recruited person
below 18 years old OR
2. Without license/authority
6 years and 1 day
Imprisonment 12 years AND
P500k Fine P1M
Prescriptive Periods
(1) Simple Illegal Recruitment 5 years
(2) Illegal Recruitment involving Economic
Sabotage 20 years. (Sec. 12, R.A. 8042
[this part was not amended by R.A,
10022]).
Foreign Employer
Foreign employer shall assume joint and solidary
liability with the employer for all claims and
liabilities which may arise in connection with
the implementation of the contract, including
but not limited to payment of wages, death
and disability compensation and repatriation
Solidary Liability
Solidary Liability of Agent and Principal
The written application for a license to operate
a private employment or manning agency
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A. 2. DIRECT HIRING
General Rule: No employer may hire a Filipino
worker for overseas employment except
through the Boards and entities authorized by
the Secretary of Labor. (Art. 18, LC)
Exceptions:
(1) Members of the diplomatic corps;
(2) International organizations;
(3) Such other employees as may be allowed
by the Sec. of Labor;
(4) Name hirees those individuals who are
able to secure contracts for overseas
employment on their own efforts and
representation without the assistance or
participation of any agency. Their hiring,
nonetheless, has to be processed through
the POEA. (Part III, Rule III of the POEA
Rules Governing Overseas Employment as
amended in 2002)
B.
REGULATIONS
ENFORCEMENT
AND
LABOR LAW
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B.3.
REMITTANCE
OF
EXCHANGE EARNINGS
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FOREIGN
Prohibited practices
It shall be unlawful for any individual, entity,
licensee, or holder of authority:
(a) To charge or accept, directly or indirectly,
any amount greater than that specified in
the schedule of allowable fees prescribed
by the Secretary of Labor, or to make a
worker pay any amount greater than that
actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony,
information or document or commit any
act of misrepresentation for the purpose of
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A. COVERAGE
General rule: Shall apply to employees in all
establishments and undertakings whether
for profit or not. (Art. 82, LC)
Exceptions (NOT Covered):
(1) Government employees (Art. 82; Art. 76)
(2) Managerial
Employees
including
members of the managerial staff (Art.
82)
(3) Field Personnel (Art. 82)
(4) Members of the family of the employer
who are dependent on him for support
(Art. 82);
(5) Domestic helpers and persons in
personal service of another (Art. 141)
(6) Workers who paid by result as
determined by DOLE regulation (Art. 82)
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B. HOURS OF WORK
B.1. COVERAGE/EXCLUSIONS
supra
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On call
An employee who is
a. required to remain on call in the
employers premises or so close thereto
b.that he cannot use the time effectively and
gainfully for his own purpose
shall be considered as working while on call.
An employee who is not required to leave
word at his home or with company officials
where he may be reached is not working
while on call. (Book III, Rule 1, Sec. 5(b), IRR)
Note:
(1) Attendance in lectures, meetings, and
training periods sanctioned by the
employer are considered hours
worked.
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Idle time
The idle time that an employee may spend
for resting and dining which he may leave
the spot or place of work though not the
premises of his employer, is not counted as
working time only where the work is broken
or is not continuous. [National Development
Co. v. CIR (1962)]
Forced Leave
Employees are required to go on leave for
several days or weeks utilizing their leave
credits of there are any.
Broken-time Schedule
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adoption of the CWW scheme. The
notice shall be in DOLE CWW Report
Form attached to this Advisory. (DOLE
Advisory No. 02-04)
Flexi-holidays
The employees agree to avail the holidays at
some other days provided there is no
diminution of existing benefits as a result of
such arrangement.
Exception:
Employees may be given a meal period of
not less than twenty (20) minutes provided
that such shorter meal period is credited as
compensable hours worked of the employee:
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(b)
NIGHT
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During a specified time beyond the
period, after childbirth is fixed
pursuant to subparagraph (1)
above, the length of which shall be
determined by the DOLE after
consulting the labor organizations
and employers.
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Night worker
Any employed person whose work requires
performance of a substantial number of
hours of night work which exceed a specified
limit. This limit shall be fixed by the Sec of
Labor after consulting the workers
representatives/labor organizations and
employers. (Art. 154, RA 10151)
Women Night Workers (Art. 158, RA 10151)
Measures shall be taken to ensure that an
alternative to night work is available to
women workers who would otherwise be
called upon to perform such work:
(1)
Before and after childbirth, for a
period of at least sixteen (16) weeks, which
shall be divided between the time before
and after childbirth;
(2) For additional periods, in respect of
which a medical certificate is produced
stating that said additional periods are
necessary for the health of the mother or
child:
(a)
During pregnancy;
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C. WAGES
Definition
a. It is the remuneration or earnings,
however designated, capable of being
expressed in terms of money,
b. whether fixed or ascertained on a time,
task, piece, or commission basis, or
other method of calculating the same,
c.
which is payable by an employer to an
employee
d. under a written or unwritten contract of
employment for work done or to be
done, or for services rendered or to be
rendered and
e. includes the fair and reasonable value,
as determined by the Secretary of Labor
and Employment, of board, lodging, or
other facilities customarily furnished by
the employer to the employee
B. 7. PART-TIME WORK
A single, regular or voluntary form of
employment
with
hours
of
work
substantially shorter than those considered
as
normal
in
the
establishment.
(International Labor Organization)
This excludes those forms of employment
which, although referred to as part-time
work, are in particular, irregular, temporary
or intermittent employment, or in cases
where hours of work have been temporarily
reduced for economic, technical or structural
reasons.
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Exceptions:
1. Domestic Helpers/kasambahay are
covered by RA 10361
2. Workers of registered barangay micro
business enterprise with Certificates of
Authority issued by the Office of the
Municipal or City Treasurer. (RA 9178)
3. Learners (RA 602)
4. Apprentices (RA 602)
5. Handicapped Workers (RA 602)
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Basis
The basis of the minimum wage rates
prescribed by law shall be the normal
working hours of 8 hours a day. (Sec 7, IRR
of RA 6727)
Factors/Criteria in determining regional
minimum wages:
(1) Demand for living wages;
(2) Wage adjustment the consumer price
index;
(3) Cost of living and changes or increases
therein;
(4) The needs of workers and their families;
(5) The need to induce industries to invest in
the countryside;
(6) Improvements in standards of living;
(7) Prevailing wage levels;
(8) Fair return of the capital invested and
capacity to pay of employers;
(9) Effects in employment generation and
family income; and
(10) Equitable distribution of income and
wealth along the imperatives of economic
and social development. (Art. 124)
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Exceptions:
(1) In cases where the worker is insured with
his consent by the employer, and the
deduction is to recompense the employer
for the amount paid by him as premium on
the insurance;
(2) For union dues, in cases where the right of
the worker or his union to check-off has
been recognized by the employer or
authorized in writing by the individual
worker concerned; and
(3) In cases where the employer is authorized
by law or regulations issued by the
Secretary of Labor and Employment (Art.
113), such as:
(a) Employee debt to employer is due
and demandable (CC 1706);
(b) Attachment or execution in cases
of debts incurred for necessities:
food, shelter, clothing, medical
attendance (CC 1708);
(c) Withholding tax;
(d) Deductions of a legally established
cooperative;
(e) Payment to 3rd parties upon written
authority by employee;
(f) Deductions for loss or damage;
(g) SSS,
Medicare,
Pag-IBIG
premiums;
(h) Deduction for value meals and
other facilities.
C.4. COMMISSIONS
Commissions have been defined as the
recompense, compensation or reward of an
agent, salesman, executor, trustee, receiver,
factor, broker or bailee, when the same is
calculated as a percentage on the amount of
his transactions or on the profit to the
principal. [Philippine Duplicators, Inc. v.
NLRC (1993)]
Commissions as part of minimum wage
The Court held that the definition of wage
under Art. 97 (f) of the LC explicitly includes
commissions as part of wages. While
commissions are, indeed, incentives or forms
of encouragement to inspire employees to
put a little more industry on the jobs
particularly assigned to them, still these
commissions are direct remunerations for
services rendered.
Likewise, there is no law mandating that
commissions be paid only after the
minimum wage has been paid to the
employee. Verily, the establishment of a
minimum wage only sets a floor below
which an employees remuneration cannot
fall, not that commissions are excluded from
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With
Employees
Without Employees
consent in Writing
consent
(1) SSS Payments
a) Workers
(2) PHILHEALTH
insurance
payments
acquired by the
(3) Contributions to
employer
PAG-IBIG Fund
b) Union
dues,
(4) Value of meals
where the right to
and
other
check-off
is
facilities
recognized by the
(5) Payments to third
employer
persons
with
(provided in the
employees
CBA)
consent
c) Debts of the
(6) Deduction
of
employee to the
absences
employer
that
(7) Union
dues,
have become due
where check-off is
and demandable
not provided in
the CBA.
wage
are
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C.8.
DISTORTION/RECTIFICATION
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WAGE
Unorganized Establishment
(1) ERs and Employees shall endeavor to
correct such distortions.
365 days/year
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days)
Where
365
days/year
=
296
days
52 days
10 days
7 days
ordinary working
days
rest days
regular holidays
special days
Where
278 days
=
296 days
20 days
67.60
days
9.1 days
ordinary working
days
10
regular
holidays x 200%
52 rest days x
130 %
7 special days x
130%
313 days/year
296
days
10
days
7 days
-
ordinary working
days
regular holidays
special days (if
considered paid;
if
actually
worked, this is
equivalent to 6.5
days)
D. REST DAY
Where
313 days
=
261
days
10
days
7 days
-
ordinary working
days
regular holidays
special days (if
considered paid;
if
actually
worked, this is
equivalent to 6.5
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a) 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 and
property,
or
imminent
danger to public safety;
b) In cases of urgent work to be
performed
on
the
machinery, equipment, or
installation, to avoid serious
loss which the employer
would otherwise suffer;
c) In the event of abnormal
pressure of work due to
special
circumstances,
where the employer cannot
ordinarily be expected to
resort to other measures;
d) To prevent loss or damage
to perishable goods;
e) Where the nature of the
work requires continuous
operations
and
the
stoppage of work may result
in irreparable injury or loss
to the employer; and
f) Under other circumstances
analogous or similar to the
foregoing as determined by
the Secretary of Labor and
Employment. (Art. 92, LC)
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Exceptions:
(1) Those of the government and any of
the political subdivision, including
government-owned and controlled
corporation;
(2) Those
of
retail
and
service
establishments regularly employing
less than 10 workers;
(3) Domestic helpers and persons in the
personal service of another;
(4) Managerial employees as defined in
Book III
(5) Field personnel and other employees
whose time and performance is
unsupervised by the employer
including those who are engaged on
task or contract basis, purely
commission basis, or those who are
paid a fixed amount for performing
work irrespective of the time
consumed in the performance thereof.
(Sec. 1, Rule IV of the IRR)
Retail Establishment is one principally
engaged in the sale of goods to end-users
for personal or household use;
Service Establishment is one principally
engaged in the sale of service to individuals
for their own or household use and is
generally recognized as such. (IRR of RA
6727/the Wage Rationalization Act)
Regular holidays
Proclamation No. 831 signed by President
Aquino on 17 July 2014, provides for the
observance of the regular holidays and
special (non-working) days for the year 2015
on the following dates:
(1)
(2)
(3)
E.1. COVERAGE
(4)
(5)
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(6)
Note:
Id-ul-Fitr (Eidl Fitr) and Id-ul-Adha (Eidl
Adha) have been added to the list of
national legal holidays.
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Sundays
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WORKERS,
WORKERS,
In case of absences
All covered employees shall be entitled to
the benefit provided herein when they are on
leave of absence with pay.
Employees who are on leave of absence
without pay on the day immediately
preceding a regular holiday may not be paid
the required holiday pay if he has not
worked on such regular holiday. [IRR, Book
III, Rule IV, Sec 6(a)]
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Piece workers
Philosophy underlying the exclusion of piece
workers from the 8-hour law is that said
workers are paid depending upon the work
they do irrespective of the amount of time
employed in doing said work. (Red v.
Coconut Products Ltd., v. CIR, 1966)
Seafarers
Any hours of work or duty including hours of
watch-keeping performed by the seafarer on
designated rest days and holidays shall be
paid rest day or holiday pay. (Section 11.C,
Standard Terms and Conditions Governing
the Employment of Filipino Seafarers on
Board Ocean-Going Vessels)
Seasonal workers
Seasonal workers who do not work during
off-season are not entitled to pay for the
regular holidays occurring during their offseason. Workers assigned to skeleton
crews that work during the off-season have
the right to be paid on regular holidays
falling in that duration.
WHEN
WORK
PERFORMED
On scheduled rest
day
On Sunday ONLY IF
ESTABLISHED rest
day
No regular work and
rest days
F. PREMIUM PAY
Premium pay refers to the additional
compensation for work performed within 8
hours on non-work days, such as rest days
and special days.
On
any
special
holiday/special day
On
any
special
holiday /special day
falling on scheduled
rest day
On
any
regular
holiday falling on
scheduled rest day
PREMIUM PAY
30% of
wage
30% of
wage
regular
regular
30% of regular
wage for work
performed
on
Sundays
and
holidays
30% of regular
wage
50% of regular
wage
230% of regular
wage
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G. LEAVES
G.1. SERVICE INCENTIVE LEAVE PAY
Every employee who has rendered at least
one year of service shall be entitled to a
yearly service incentive leave of five days
with pay. (Art. 95(a))
Entitlement
The grant of benefit in excess of that
provided herein shall not be made a subject
of arbitration or any court or administrative
action. (Art. 95 (c))
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Coverage
Every pregnant woman in the private sector,
whether married or unmarried, is entitled to
the maternity leave benefits.
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Other conditions
(1) Employer shall advance the payment
subject to reimbursement by the SSS
within 30 days from filing of leave
application.
(2) Availment shall be a bar to the recovery of
sickness benefits provided by this Act for
the same period for which daily maternity
benefits have been received.
(3) Employee may only avail of benefit for the
first four (4) deliveries or miscarriages.
(4) Sanction:
That if an employee should give birth or
suffer miscarriage
a. without the required contributions
having been remitted for her by her
ER to the SSS, or
b. without the latter having been
previously notified by the ER of
time of the pregnancy, then the
employer shall pay to the SSS
damages equivalent to the benefits
which said employee member
would otherwise have been entitled
to.
8187
Benefit
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See number
entitlement.
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4
under
conditions
for
Non-conversion to cash
In the event that the paternity leave is not
availed of, it shall not be convertible to cash
and shall not be cumulative. (Sec. 7, IRR, RA
8187)
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Benefit
In addition to other paid leaves under
existing labor laws, company policies,
and/or CBA, the qualified victim-employee
shall be entitled to a leave of up to 10 days
with full pay, consisting of basic salary and
mandatory allowances fixed by the Regional
Wage Board, if any.
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Period of entitlement
The 2 months special leave is the maximum
period of leave with pay that a woman
employee may avail of under RA 9710.
Availment
The special leave shall be granted to the
qualified employee after she has undergone
surgery. (Sec. 5, DO 112, as amended)
Frequency of availment
A woman employee can avail of the SLB for
every instance of surgery due to
gynecological disorder for a maximum total
period of 2 months per year. (Sec. 6, DO 112,
as amended)
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F. SERVICE CHARGES
Coverage
Employers (Sec 1, Rule VI, Book 3, IRR)
This rule shall apply only to establishments
which collect service charges such as:
(a) Hotels, restaurants, lodging houses,
night clubs, cocktail lounge, massage
clinics, bars, casinos and gambling
houses and similar enterprises
(b) Including those entities operating
primarily as private subsidiaries of the
Government
Employees
Shall apply to ALL employees of covered
employers
a. Regardless
of
their
positions,
designations, or employment status,
b. Irrespective of the method by which
their wages are paid.
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Exceptions
Managerial employees or one who is
vested with powers or prerogatives to lay
down and execute managerial policies
and/or hire, transfer, suspend, layoff, recall,
discharge, assign or discipline employees or
to effectively recommend such managerial
actions. All employees not falling within this
definition shall be considered rank-and-file
employees. (Sec 2, Rule VI, Book 3, IRR)
Distribution
Service charges are distributed in
accordance with the following percentage of
sharing:
(1) Eighty-five percent (85%) for the
employees to be distributed equally
among them;
(2) Fifteen percent (15%) for the management
to answer for losses and breakages and, at
the discretion of the management,
distribution to managerial employees. (Sec
3, Rule VI, Book 3, IRR)
Coverage
General Rule: ALL EMPLOYERS are hereby
required to pay all their rank and file
employees a 13th month pay not later than
Dec 24 of every year, Provided that they have
worked for at least one (1) month during a
calendar year.
Integration
In case service charge is abolished shares of
covered employees shall be considered
integrated in their wages. (Art 96)
The basis of the amount to be integrated
shall be the average monthly share of each
employee for the past twelve (12) months
immediately preceding the abolition of
withdrawal of such charges. (Sec. 5, Rule VI,
Book 3, IRR)
Exempted Employers:
(1) Government, its political subdivisions,
including GOCCs except those operating
essentially as private subsidiaries of the
Government;
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Equivalent includes:
(a) Christmas bonus, mid-year bonus,
cash bonuses
(b) and other payments amounting to not
less than 1/12 of the basic salary
(c) but shall NOT INCLUDE cash and
stock dividends, cost of living
allowances and all other allowances
regularly enjoyed by the employee as
well a non-monetary benefits.
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(3)
(4)
(5)
(6)
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Additional Rules:
(1) Commissions: If the commissions may be
properly considered part of the basic
salary, then they should be INCLUDED. If
they are not an integral part of the basic
salary, then they should be EXCLUDED.
(Phil. Duplicators Inc. vs NLRC, 1995)
Exception:
Considerations of equity and the employee
was not dismissed on the ground of
misconduct or for cause reflecting his moral
character.
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Amount
One-Half (1/2) Month Pay per Year of Service
An EE is entitled to receive separation pay
equivalent to month pay for every year of
service, a fraction of at least six (6) months
being considered as one whole year, if
his/her separation from the service is due to
any of the following authorized causes:
(1) Retrenchment to prevent losses (i.e.
reduction of personnel effected by
management to prevent losses);
(2) Closure or cessation of operation of an
establishment not due to serious losses
or financial reverses; and,
(3) When the EE is suffering from a
disease not curable within a period of six
(6) months and his/her continued
employment is prejudicial to his/her
health or to the health of his/her coemployees
In no case will an EE get less than one (1)
month separation pay if the separation is
due to the above stated causes and he/she
has served for at least six (6) months. (DOLE
Handbook on Workers Statutory Monetary
Benefits, 2014 ed.)
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Law;
(2) domestic helpers and persons in the
(3) employees
Age of retirement
Optional retirement in the absence of a
retirement plan or other applicable
agreement providing for retirement benefits
of EEs in an establishment, an EE may retire
upon reaching the age of 60 or more if he
has served for at least 5 years in said
establishment.
Compulsory retirement in the absence of a
retirement plan or other applicable
agreement providing for retirement benefits
of EEs in an establishment, an EE shall be
retired at the age of 65 years. (Sec. 4, IRR,
RA 7641)
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J.3.
RETIREMENT
BENEFITS
OF
WORKERS WHO ARE PAID BY RESULTS
For covered workers who are paid by result
and do not have a fixed monthly salary rate,
the basis for the determination of the salary
for 15 days shall be their average daily salary
(ADS). The ADS is derived by dividing the
total salary or earning for the last 12 months
reckoned from the date of retirement by the
number of actual working days in that
particular period, provided that the
determination of rates of payment by results
are in accordance with established
regulations
Exception
Except to pay a debt of the official or
employee concerned to the private benefit
plan or that arising from liability imposed in
a criminal action:
Additional conditions
1. That the retiring official or employee has
been in the service of the same employer for
at least ten (10) years and is not less than
fifty years of age at the time of his
retirement;
2. That the retirement benefits shall be
availed of by an official or employee only
once; and,
3. That in case of separation of an official or
employee from the service of the employer
due to death, sickness or other physical
disability or for any cause beyond the control
of the said official or employee, any amount
received by him or by his heirs from the
employer as a consequence of such
separation shall likewise be exempt as
hereinabove provided.
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Exceptions:
1. Reasonable demands of business require
the distinction based on marital status AND
there is no better available policy to
accomplish the business purpose.
2. Spouse is an employee of the competitor
K. WOMEN WORKERS
K.1.
PROVISIONS
DISCRIMINATION
LABOR LAW
AGAINST
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environment
employee.
for
the
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Exceptions
(1) Child works directly under the sole
responsibility of his parents or legal
guardian and where only members of the
ERs family are employed, provided:
(a) his employment does NOT endanger
his life, safety, health and morals,
(b) nor impairs his normal development,
and
(c) the parent or legal guardian shall
provide the said minor child with the
prescribed primary and/or secondary
education; (Sec. 12 of RA 7610 as
amended by RA 7658)
Sanctions
(1) Criminal: imprisonment of 1 month to mos.
Or fine of P10k to P20k or both
Prescription of such action is in 3 years.
(2) Termination (Sec. 7, RA 7877)
L. MINOR WORKERS
Relevant Laws: RA 7610 (Special Protection
of Children Against Abuse, Exploitation and
Discrimination Act), RA 9231 (Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act), Art.
137(a)
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Quantity
Age Bracket
Below 15 y
15 to below
18
Daily Max
4 hours
Weekly Max
20 hours
8 hours
40 hours
Prohibited Hours
8 pm to 6 am (10
hrs)
10 pm to 6 am (8
hrs)
M.
EMPLOYMENT
HOUSEHELPERS
OF
(a)
55
Minimum wage
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(d) Privacy
Respect for the privacy of the domestic
worker shall be guaranteed at all times and
shall extend to all forms of communication
and personal effects (Sec. 7, RA 10361)
(e) Access to Outside Communication
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Termination
A. Initiated by the domestic worker (at any
time)
(a) Verbal or emotional abuse of the
domestic worker by the employer or any
member of the household;
(b) Inhuman treatment including physical
abuse of the domestic worker by the
employer or any member of the household;
(c) Commission of a crime or offense against
the domestic worker by the employer or any
member of the household;
(d) Violation by the employer of the terms
and conditions of the employment contract
and other standards set forth under this law;
(e) Any disease prejudicial to the health of
the domestic worker, the employer, or
member/s of the household; and
(f) Other causes analogous to the foregoing.
(Sec. 33, RA 10361)
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Unjust dismissal
Neither the domestic worker nor the
employer may terminate the contract before
the expiration of the term except for grounds
provided in Sec. 33 and 34 of RA 10361.
Industrial homework
A system of production under which work for
an ER or contractor is carried out by a
homeworker at his/her home.
(1) Materials may or may not be furnished
by the ER or contractor.
(2) Decentralized form of production,
where there is ordinarily very little
supervision or regulation of methods
of work. (Sec. 2(a), Rule XIV, Book III,
IRR)
N.
EMPLOYMENT
HOMEWORKERS
LABOR LAW
OF
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Liability of Employer
(1) ER
may
require
homeworker to redo work
improperly
executed
without additional pay
(Sec 9a, Rule XIV, Book III,
IRR)
(2) ER
need
not
pay
homeworker for any work
done on goods or articles
not returned due to
homeworkers fault (Sec
9b, Rule XIV, Book III, IRR)
(3) If
subcontractor/contractor
fails to pay homeworker,
ER is jointly and severally
liable with the former to
the
homeworker
for
his/her wage (Sec 11, Rule
XIV, Book III, IRR)
(4) ER shall assist the
homeworkers
in
the
maintenance of basic safe
and healthful working
conditions
at
the
homeworkers place of
work. (Sec 11, Rule XIV,
Book III, IRR of LC)
O.1. APPRENTICES
Art. 58 has been superseded by Section 4 (j),
(k), (l), (m) of RA 7796 quoted below:
(j)
"Apprenticeship"
training
within
employment with compulsory related
theoretical instruction involving a contract
between an apprentice and an employer on
an approved apprenticeable occupation.
Prohibited Homework
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Summary of Rules:
(1) The apprentice must be paid not less
than 75% of the prescribed minimum
salary (Art. 61);
HOWEVER, the employer MAY NOT pay any
wage if the apprenticeship training is:
a. part of the school curriculum,
b. a requirement for graduation,
or
c. a requirement for board
examination (Art. 72)
(2) The apprenticeship agreement must
be approved by the DOLE Secretary
(without such one shall be deemed a
regular employee) (Nitto Enterprises v.
NLRC, G.R. No. 114337, Sept. 29,
1995);
(3) The employer is not compelled to
continue ones employment upon
termination of apprenticeship;
(4) One-half (1/2) of the value of labor
training expenses incurred for
developing the productivity and
efficiency of apprentices of the training
cost is deducted from the employers
income tax but it shall not exceed 10%
of direct labor wage (Art. 71)
Period
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All learners who have been allowed or
suffered to work during the first two
(2) months shall be deemed regular
employees if training is terminated by
the employer before the end of the
stipulated period through no fault of
the learners.
N.2. LEARNERS
P. HANDICAPPED WORKERS
DIFFERENTLY-ABLED WORKERS (RA
7277 - MAGNA CARTA FOR DISABLED
PERSONS, AS AMENDED BY RA 9442)
Learnership Agreement
Any employer desiring to employ learners
shall enter into a learnership agreement
with them, which agreement shall include:
(1) The names and addresses of the
learners;
(2) The duration of the learnership period,
which shall not exceed three (3)
months;
(3) The wages or salary rates of the
learners which shall begin at not less
than seventy-five percent (75%) of the
applicable minimum wage; and
(4) A commitment to employ the learners
if they so desire, as regular employees
upon completion of the learnership.
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IV. Termination of
Employment
A.EMPLOYER-EMPLOYEE
RELATIONSHIP
Duration
General Rule: not exceed six (6) months from
the date the employee started working.
Exceptions:
(1) When it is covered by an apprenticeship
agreement stipulating a longer period
(Art. 287, LC);
(2) When the parties to an agreement
contract otherwise, such as when
established by company policy or required
by the nature of the work performed by the
employee (San Miguel Corp, v. del Rosario,
G.R. Nos. 168194 & 168603, December 13,
2005, citing Buiser v. Leogardo, G.R. No. L63316, July 31, 1984); or
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Limits to termination
(1) It must be exercised in accordance with
the specific requirements of the contract
(2) If a particular time is prescribed, the
termination must be within such time and
if formal notice is required, then that form
must be used;
(3) The employers dissatisfaction must be
real and in good faith, not feigned so as to
circumvent the contract or the law;
(4) There must be no unlawful discrimination
in the dismissal. (Manila Hotel Corporation
v. NLRC, G.R. No. 53453, January 22, 1986)
II. REGULAR
A regular employee is one who is engaged to
perform activities which are necessary and
desirable in the usual business or trade of the
employer as against those which are
undertaken for a specific project or are
seasonal.
Termination
A probationary employee enjoys only a
temporary employment status. This means
that he is terminable at any time, permanent
employment not having been attained in the
meantime. As long as the termination was
made before the termination of the six-month
probationary period, the employer was well
within his rights to sever the employeremployee relationship. (De la Cruz, Jr. v. NLRC,
G.R. No. 145417. Dec. 11, 2003)
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IV. SEASONAL
Seasonal employees are those whose work or
services to be performed are seasonal in
nature, employment is for the duration of the
season.
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Cause
Effect
Prior
to
the Governed by Art. 284 292
expiration of the of LC
Service
Agreement
Prior
to The right of the contractor
expiration of the employee to unpaid wages
Service
and other unpaid benefits
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Agreement
not
due
authorized
causes
LABOR STANDARDS
Due to expiration
of
Service
Agreement,
or
from
the
completion of the
phase of the job,
work or service
for which the
employee
is
engaged
LABOR LAW
Mandatory registration
It shall be mandatory for all persons or
entities, including cooperative, acting as
contractors, to register with the Regional
Office of the DOLE where it principally
operates.
Failure to register shall give rise to the
presumption that the contractor is engaged in
labor-only contracting.
Accordingly, the registration system
governing contracting arrangements and
implemented by the Regional Offices of the
DOLE is hereby established, with the Bureau
of Working Conditions (BWC) as the central
registry. (Sec. 14, D.O. 18-A-11)
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and/or
software
support,
medical
transcription, animation services, back office
operations/support).
These
companies
engaged in BPOs may hire employees in
accordance with applicable laws, and
maintain these EEs based on business
requirements, which may or may not be for
different clients of the BPOs at different
periods of the EEs employment.
LABOR LAW
V. TRILATERAL
CONTRACTING
RELATIONSHIP
IN
JOB
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Willful Disobedience
REQUISITES
a)
There must be misconduct;
b)
The misconduct must be of such grave and
aggravated character;
c)
It must relate to the performance of the employees
duties; and
d)
There must be showing that the employee becomes
unfit to continue working for the employer.
1. The employees assailed conduct must have been lawful or
intentional, the willfulness being characterized by a wrongful
and perverse attitude; and
2. The order violated must have been reasonable, or lawful,
made known to the employee and must pertain to the duties
which he had been engaged to discharge.
In order to constitute just cause for an EEs dismissal due to
negligence, it must not only be gross, but also habitual. A
single or an isolated act that cannot be categorized as
habitual, hence, not a just cause for their dismissal.
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Commission of a Crime
LABOR LAW
Fiduciary rank-and-file
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Requisites
1. Good faith on the employer
2. Written notice to DOLE and employees at least
30 days before termination
3. Separation pay equivalent to one-month pay or
at least month pay for every year of service,
whichever is higher.
1. Retrenchment is reasonable necessary and
likely to prevent business losses which, if
already incurred, are not merely de
minimis, but substantial, serious, actual and
real, or if only expected, are reasonably
imminent as perceived objectively and in
good faith by the employer;
Retrenchment
Redundancy
Closure of Business
Disease
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Burden of Proof
In illegal dismissal cases, the onus of proving
that the employee was not dismissed or, if
dismissed, that the dismissal was not illegal,
rests on the employer, failure to discharge
which would mean that the dismissal is not
justified and, therefore, illegal. [Macasero v.
Southern Industrial Gases Philippines, G.R. No.
178524, January 30, 2009]
Degree of Proof
Substantial evidence
I. TWIN-NOTICE REQUIREMENT
The employer has the burden of proving that a
dismissed worker has been served two notices:
(1) The first to inform the employee of the
particular acts or omissions for which the
employer seeks his dismissal, and
(2) The second to inform the employee of his
employer's decision to terminate him.
Right to Counsel
The right to counsel, a very basic requirement
of substantive due process, has to be
observed. Indeed, the rights to counsel and to
due process of law are two of the fundamental
rights guaranteed by the 1987 Constitution to
any person under investigation, be the
proceeding administrative, civil, or criminal.
[Salaw v. NLRC, G.R. No. 90786, September 27,
1991]
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LABOR STANDARDS
Process
Just or
Authorized
Cause
+ No Due
Process
PROCEDURE TO BE
TERMINATION CASES
Just Causes
1. Notice specifying
the grounds for
which dismissal is
sought
2. Hearing or
opportunity to be
heard
3. Notice of the
decision to dismiss
OBSERVED
Valid
No liability.
Separation pay only
in authorized cause
No Just or
Authorized
Cause
+ Due
Process
Invalid
Reinstatement
or
separation pay.
If reinstatement not
possible,
+
full
backwages
No Just or
Authorized
Cause
+ No Due
Invalid
Reinstatement
or
separation pay.
If reinstatement not
possible,
+
full
C.1. REINSTATEMENT
Reinstatement means restoration to a state or
condition from which one had been removed
or separated. The person reinstated assumes
the position he had occupied prior to his
dismissal [Asian Terminals, Inc. v. Villanueva,
G.R. No. 143219, November 28, 2006]
General Rule: Reinstatement
Liability of ER
Just or
Authorized
Cause
+ Due
Process
Valid
IN
Authorized Cause
Notice to:
(1) Employee, and
(2) DOLE at least 1
month prior to
the effectivity of
the separation
Validity of
Dismissal
backwages
LABOR LAW
Exceptions:
(1) Separation pay
(2) Closure of business (Retuya v. Hon.
Dumarpa, G.R. No. 148848, Aug. 5, 2003)
(3) Economic business conditions (Union of
Supervisors v. Secretary of Labor, G.R. No.
L-39889, November 12, 1981)
(4) Employees unsuitability (Divine Word High
School v. NLRC, G.R. No. 72207, August 6,
1986)
(5) Employees retirement/ overage (New
Philippine Skylanders, Inc. v. Dakila, G.R.
No. 199547, September 24, 2012)
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Prescription Period
4 years from the time of dismissal. [Art. 1146,
CC]
I. REINSTATEMENT PENDING APPEAL
If the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory
on the part of the employer to reinstate and
pay the wages of the dismissed employee
during the period of appeal until reversal by
the higher court. The Labor Arbiter's order of
reinstatement is immediately executory and
the employer has to either re-admit them to
work under the same terms and conditions
prevailing prior to their dismissal, or to
reinstate them in the payroll, and that failing
to exercise the options in the alternative,
employer must pay the employee's salaries
[Magana v. Medicard Philippines, Inc., G.R. No.
174833, December 15, 2010]
Computation
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LABOR STANDARDS
C.2. BACKWAGES
Backwages are earnings lost by a worker due
to his illegal dismissal; a form of relief that
restores the income lost by reason of such
unlawful dismissal; it is not private
compensation or damages; nor is it a redress
Indemnity of Employer
Doctrine in
Period
effect
LABOR LAW
Validity of
Dismissal
Liability of ER
Prior 1989
Pre-Wenphil
Illegal
Reinstatement + Backwages
Wenphil
Valid
Ineffectual
Nov. 2004
present
Valid
Nominal damages
Agabon
D. PREVENTIVE SUSPENSION
Preventive suspension is a disciplinary
measure for the protection of the company's
property pending investigation of any alleged
malfeasance or misfeasance committed by the
employee. The employer may place the worker
concerned under preventive suspension if his
continued employment poses a serious and
imminent threat to the life or property of the
employer or of his co-workers.
E. CONSTRUCTIVE DISMISSAL
V. Management
Prerogative
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C. PRODUCTIVITY STANDARD
The employer has the right to demote and
transfer an employee who has failed to
observe proper diligence in his work and
incurred habitual tardiness and absences and
indolence in his assigned work. [Petrophil
Corporation vs. NLRC, 1986]
A. DISCIPLINE
The employers right to conduct the affairs of
his business, according to its own discretion
and judgment, includes the prerogative to
instill discipline in its employees and to
impose penalties, including dismissal, upon
erring
employees.
[Consolidated
Food
Corporation vs. NRLC, 1999] [St. Michaels
Institute vs. Santos, 2001]
D. GRANT OF BONUS
A bonus is "a gratuity or act of liberality of the
giver which the recipient has no right to
demand as a matter of right" [Aragon vs. Cebu
Portland Cement Co., 61 O.G. 4597].
B. TRANSFER OF EMPLOYEES
The Employer has the right to transfer or
assign Employees from one area of operation
to another, or one office to another or in
pursuit of its legitimate business interest,
Provided there is no demotion in rank or
diminution of salary, benefits and other
privileges and not motivated by discrimination
or made in bad faith, or effected as a form of
punishment or demotion without sufficient
cause. [Westin Phil. Plaza Hotel v. NLRC, 1999]
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G. POST-EMPLOYMENT BAN
In cases where an employee assails a contract
containing a provision prohibiting him or her
from accepting competitive employment as
against public policy, the employer has to
adduce evidence to prove that the restriction is
reasonable and not greater than necessary to
protect the employers legitimate business
interests. The restraint may not be unduly
harsh or oppressive in curtailing the
employees legitimate efforts to earn a
livelihood and must be reasonable in light of
sound public policy. [Rivera v Solidbank, 2006]
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A.1. COVERAGE
I. COMPULSORY [SEC. 9 [A]; SEC. 9-A]
(1) Employees not over 60 years including
domestic helpers with at least P1,000
monthly pay; and
(2) Self-employed as may be determined by
the Commission, but not limited to:
I.
Self-employed professionals
II.
Partners and single proprietors of
businesses
III.
Actors and actresses, directors,
scriptwriters,
and
news
correspondents who do not fall
within the definition of the term
employee under Section 8 [d]
IV.
Professional athletes, coaches,
trainers and jockeys
V.
Individual farmers and fishermen
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A.3. BENEFITS
I. MONTHLY PENSION [SEC.12]
LABOR LAW
Eligibility requirement
36 monthly contributions prior to the
semester of disability; same as death
benefit; the only difference is that the
pension is paid directly to the member.
In case the permanently disabled member
dies, it would be given the same treatment
as a retiree dying.
For permanent partial disability, the
pension is not lifetime. [e.g. loss of thumb
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VII. LOAN
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Process
The full payment shall be advanced by the
employer within thirty [30] days from the filing
of the maternity leave application;
Coverage
The maternity benefits provided under this
section shall be paid only for the first four [4]
deliveries or miscarriages;
Employers Reimbursement
That the SSS shall immediately reimburse the
employer of one hundred percent [100%] of
the amount of maternity benefits advanced to
the employee by the employer upon receipt of
satisfactory proof of such payment and legality
thereof. Note: All of these benefits are tax-exempt.
A.4. BENEFICIARIES
1. PRIMARY
(1) Dependent spouse until remarriage [see
above];
(2) Dependent
children
[legitimate,
legitimated,
legally
adopted,
and
illegitimate] [see above]; illegitimate
children are entitled only to 50% of the
share of legitimate children unless there
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2. SECONDARY
Shall only receive when the primary
beneficiaries are absent
Dependent parents
from
B.3. BENEFITS
Computation of Service
From date of original appointment/election,
including periods of service at different times
under one or more employers, those
performed overseas under the authority of the
Republic of the Philippines, and those that
may be prescribed by the GSIS in coordination
with the Civil Service Commission.
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Partial Disability
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VI. LOAN
GSIS website provides for this
Benefit
Monthly cash payments of 50% of average
monthly compensation for a duration which is
proportional to years rendered, ranging from 2
months to 6 months.
X. SURVIVORSHIP BENEFITS
Benefit
75% of the current daily compensation for
every day or fraction thereof of disability or
P70 whichever is higher.
Eligibility requirements
(1) 60 years of age, or separation from service
with at least 3 years but not over 15 years
served
(2) Below 60 years of age, but at least 15
years of service rendered.
Note:
Judiciary
and
Constitutional
Commissions are entitled to life insurance
only.
B.4. BENEFICIARIES
I. PRIMARY
(1) Dependent spouse until remarriage;
(2) Dependent
children
[legitimate,
legitimated,
legally
adopted,
and
illegitimate] but RA 8291 does not
Benefit
(1) For 60 years of age or separated from
service with 3 to 15 years of service: cash
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distinguish share of
illegitimate children.
legitimate
and
LABOR LAW
II. SECONDARY
Shall only receive when
beneficiaries are absent:
(1) Dependent parents
Enabling law
Definition of
Terms
the
primary
SSS
RA 1161 as amended by RA 8282:
Social Security Act of 1997
Employer any person, natural or juridical,
domestic or foreign, who carries on in the
Philippines any trade business, industry,
undertaking, and uses the services of
another person who is under his orders as
regards the employment, except those
considered as employer under the GSIS. A
self-employed person shall be both
employer and employee at the same time.
Employee any person who performs
services for an employer in which either or
both mental and physical efforts are used
and who receives compensation for such
services, where there is an employer
employee relationship; also, a selfemployed person who is both employee
and employer at the same time
Self-employed any person whose income
is not derived from employment, including,
but not limited to:
self-employed professionals;
partners and single proprietors of
businesses;
actors, directors, scriptwriters, news
correspondents not considered as
employees under the above definition;
athletes, coaches, trainers, jockeys;
and
individual farmers and fishers.
Dependents:
Legal spouse entitled by law to receive
support;
Child unmarried, not gainfully
employed, and below 21 or
Child over 21 if he or she became
permanently
incapacitated
and
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GSIS
RA 8291 amending PD 1146
Employer National government, its
political
subdivisions,
branches,
agencies
or
instrumentalities,
including
government-owned
or
controlled corporations and financial
institutions with original charters
[GOCCs]; constitutional commissions;
and judiciary
Employee any person receiving
compensation while in service of an
employer whether by election or
appointment, irrespective of status of
appointment; baranggay officials; and
sangguniang officials
Note: No
employed.
counterpart
for
self-
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Coverage
LABOR LAW
Exceptions:
(1) AFP and PNP;
(2) Members of the Judiciary and
Constitutional Commissions who
Voluntary
are covered only by life insurance
as they have separate retirement
Spouses who devote full time to
schemes;
managing household and family
(3)
Contractual employees with no
affairs;
employee-employer relationship
OFWs recruited by foreign-based
with the agency they serve.
employers;
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Effective Date
of Coverage
Summary of
Benefits
Effects of
separation
from
employment
Dispute
Settlement
Prescriptive
Period
LABOR LAW
(1)
(2)
(3)
(4)
(5)
(6)
Monthly pension
Retirement benefits
Permanent disability benefits
Death Benefits
Funeral benefits
Loan GSIS website provides for
this
(7) Temporary disability benefits
[similar to sickness]
(8) Separation benefits
(9) Unemployment benefits Sec 11
(10) Survivorship benefits
(11) Life insurance benefits
Note: Judiciary and Constitutional
Commissions are entitled to life
insurance only.
C.1 COVERAGE
(1) Workers who transfer employment from one
sector to another; or
(2) Those employed in both sectors [public and
private].
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C.2. PROCESS
The covered worker shall have his credible
services or contributions in both Systems
credited to his service or contribution record in
each of the Systems and shall be totalized for
purposes of old-age, disability, survivorship and
other benefits in case the covered member does
not qualify for such benefits in either or both
systems without totalization:
Provided,
however, That overlapping periods of
membership shall be credited only once for
purposes of totalization [Sec. 3]
D.2. EFFECTIVITY
Coverage of employees shall take effect on the
first day of employment. [Sec. 6]
D. EMPLOYEES COMPENSATION
COVERAGE
AND
WHEN
COMPENSABLE
D.1 COVERAGE
(1) Every employer shall be covered.
(2) Every employee not over sixty [60] years of
age shall be covered.
(3) An employee over sixty [60] years of age
shall be covered if he had been paying
contributions to the System prior to age
sixty [60] and has not been compulsorily
retired.
(4) An employee who is coverable by both the
GSIS and SSS shall be compulsorily covered
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PICKETING,
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AND
As to how committed
(1) Slowdown strike one by which workers,
without a complete stoppage of work,
retard production or their performance of
duties
and
functions
to
compel
management to grant their demands.
(a) Strike
A strike is any temporary stoppage of work by
the concerted action of employees as a result of
an industrial or labor dispute. [Art. 218(o)]
Strikes not limited to work stoppages
The term strike shall comprise not only
concerted work stoppages, but also slowdowns,
mass leaves, sit-downs, attempts to damage,
destroy or sabotage plant equipment and
facilities, and similar activities. [Samahang
Manggagawa v. Sulpicio Lines, 2004]
FORMS OF STRIKES
As to legality
As to grounds
(1) Economic strike one staged by workers to
force wage or other economic concessions
from the employer which he is not required
by law to grant [Consolidated Labor
Association of the Phil. v. Marsman and
Company, 1964]
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Bargaining deadlocks
ULP [Art. 263 (c)]
Procedural requirements
(1) Effort to bargain
(2) Filing and service of notice of strike
With the Department at least 30 days
before intended date of strike. (Art.
269(c))
(3) Observance of cooling-off period
bargaining deadlock 30 days
ULP but not union busting 15 days
ULP and union busting no cooling-off
period
(4) Strike vote
Requirements:
(a) approval by a majority of the total
union
membership
in
the
bargaining nit concerned
(b) approval is obtained by secret ballot
in a meeting/referendum called for
the purpose
(5) Strike vote report
[I]n every case, the union or the
employer shall furnish the Department
Limitations
[N]o employer may declare a lockout on
grounds involving inter-union and intra-union
disputes. [Art. 269 (b)]
Grounds
Similar to a strike, the proper grounds for a
lockout are
(1) bargaining deadlock
(2) ULP by labor organizations
Requisites
(1) Effort to bargain
(2) Filing and service of notice of lockout
[Filed] with the Department at least 30
days before the intended date thereof.
[] (Art. 269(c))
Notice must be served to the employees
through the representative union.
1
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A.4.
REQUISITES
PICKETING
FOR
LABOR LAW
LAWFUL
Picketing
as
part
of
freedom
of
speech/expression; limitations
General rule: picketing enjoys constitutional
protection as part of freedom of speech and/or
expression.
(b) Picketing
The right of legitimate labor organizations to
strike and picket and of employers to lockout,
consistent with the national interest, shall
continue to be recognized and respected. [Art.
269 (b)]
Exceptions/limitations:
(1) when picketing is coercive rather than
persuasive [Security Bank Employees Union
v. Security Bank]
(2) when picketing is achieved through illegal
means [Mortera v. CIR]
(3) courts
may
confine
the
communication/demonstration
to
the
parties to the labor dispute [PCIB v.
Philnabank Employees Association]
(4) Innocent bystander rule. Courts may
insulate establishments or persons with no
industrial connection or having interest
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B. DEFINITIONS/CONCEPTS
Labor Dispute
Labor Dispute includes any controversy or
matter concerning terms and conditions of
employment
or
the
association
or
representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms
and conditions of employment, regardless of
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C.
REPRESENTATION
ISSUE
ORGANIZED ESTABLISHMENTS
IN
Nature of proceeding
Certification Election
LABOR LAW
Union Election
3. National Union/Federation
In any establishment where there is no certified
bargaining agent, a certification election shall
automatically be conducted by the Med-Arbiter
upon filing of a petition by any legitimate labor
organization, including a national union or
federation which has already issued a charter
certificate to its local/chapter participating in
the certification election, or a local/chapter
which has been issued a charter certificate by
the national union or federation. In cases where
the petition was filed by a national union or
federation, it shall not be required to disclose
Implications
Technical rules and objections should not
hamper the correct ascertainment of the labor
union that has the support and confidence of
the majority of the workers and is thus entitled
to represent them in bargaining for the terms
and conditions of their employment. [Port
Workers Union v. DOLE, 1992]
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4. Employer
When requested to bargain collectively, an
employer may petition the Bureau for an
election. [Art. 264]
Venue
BLR Regional Office which issued the
petitioning unions certificate of registration or
certificate of creation of chartered local.
Bystander rule
The employer shall not be considered a party in
the petition with a concomitant right to oppose
a petition for certification election. The
employers participation shall be limited to:
(1) being notified or informed of petitions of
such nature
(2) submitting the list of employees during the
pre-election conference should the Medarbiter act favorably on the petition [Art
258-A introduced by RA 9481]
Procedure
(1) A petition for certification election shall be
filed by a legitimate labor organization.
(2) Upon filing of the petition, the Med- Arbiter
shall automatically conduct a certification
election.
Discretionary rule
If the petition does not comply with the
substantial support requirement, the BLR may
exercise its discretion in determining whether or
not a certification election must be conducted.
[Scout Albano Memorial College v. Noriel, 1978]
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why is there
none
in
unorganized
establishments?
It
has
something to do
with industrial
peace
Substantial Must be duly
support rule supported
by
25% of ALL THE
MEMBERS OF
THE
APPROPRIATE
BARGAINING
UNIT.
Percentage
base:
all
members of an
appropriate
bargaining unit.
What is intent
and purpose of
law for requiring
the substantial
support rule?
Law wants to
know
the
intention of the
employees.
If
they really want
a CE, since they
already have a
bargaining
agent.
Forced Intervenor
The incumbent bargaining agent shall
automatically be one of the choices in the
certification election as forced intervenor. [Book
V Rule VIII Sec. 7]
Organized vs. Unorganized Establishment
Art.
256: Art.
257:
ORGANIZED
UNORGANIZED
Bargaining Existing,
has None
agent
one
Petition
Has to be a No need to be
filed
VERIFIED
verified
petition
Freedom
No petition for Not
Period
Certification
applicable.
election
EXCEPT within No
freedom
60 days before period.
the expiration of Can
file
the
collective petition
bargaining
anytime.
agreement (See
Art. 253 & 253A)
Take note how
SC interpreted
the
term
WITHIN.
LABOR LAW
NO
substantial
support rule.
WHY?
Intention
of
law is to bring
in the union,
to implement
policy behind
Art. 211a.
What is the
rationale
of
freedom period
in
Organized
establishments,
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Notice Requirement
Posting of Notice
Who: Election Officer shall cause the posting
What: Notice of election
Where: 2 conspicuous places in company
premises
When: At least 10 days before actual election
The posting of the notice of election, the
information required to be included therein and
the duration of the posting cannot be waived by
the contending unions or the employer. [Book V
Rule IX Sec 6, IRR]
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Illustration
The CBU has 100 members and eighty of which
voted. Union A= 30; Union B= 15; Union
C=15 and No Union= 20. There were no
invalid votes. Since none got the majority of the
80 valid votes and the contending unions
obtained 60 votes(which exceeds of the total),
a run-off election is proper. The run-off will be
between the labor unions receiving the two
highest number of votes. The run-off is NOT
between two unions but between two highest
votes. Thus, the run-off will be among Union
A, B and C. [Azucena]
Challenge Voter
An employer [] may question the inclusion of
any disqualified employee in the certification
election
during
the
exclusion-inclusion
proceedings before the representation officer.
[Phil. Telephone & Telegraph Co. v Laguesma,
1993]
Validity
Double majority requirement: (voters, valid
votes)
To have a valid election, at least a majority of all
eligible voters in the unit must have cast their
votes. The labor union receiving the majority of
the valid votes cast shall be certified as the
exclusive bargaining agent of all the workers in
the unit. [Art. 262]
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Purpose
Certification
election
Aimed
at
determining
the
sole and exclusive
bargaining agent
of all employees in
an
appropriate
bargaining unit for
the purpose of
collective
bargaining
Affiliate
An affiliate is an independent union affiliated
with a federated, national union or a chartered
local which was subsequently granted
independent registration but did not disaffiliate
from its federation, reported to the Regional
Office and the Bureau in accordance with Rule
III Secs. 6 and 7 of the IRR. [Book V Rule 1 Sec. 1
[a]]
Consent
Election
Merely
to
determine the
issue
of
majority
representation
of all the
workers in the
appropriate
collective
bargaining
unit
Independent Union
A labor organization operating at the enterprise
level that required legal personality through
independent registration under Art.234 of the
Labor Code and Rule III Sec. 2-A of the IRR.
[Book V Rule 1 Sec. 1 [w]]
Local Chapter (Chartered Local)
A labor organization in the private sector
operating at the enterprise level that acquired
legal personality through the issuance of a
charter certificate by a duly registered
federation or national union, and reported to
the Regional Office in accordance with Rule III
Sec. 2-E of the IRR. [Book V Rule 1 Sec. 1 [i]]
Conduct
LABOR LAW
2nd
Level
of
Choice: If Yes
Union wins,
WHICH union.
(UST Faculty Union
v. Bitonio, 1999)
Ordered by the Voluntarily
DOLE
agreed upon
by the parties,
with or w/o
intervention
from DOLE
Purpose of affiliation
To foster the free and voluntary organization of
a strong and united labor movement [Art. 211]
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Effect of disaffiliation
A registered independent union retains its legal
personality while a chartered local loses its
legal personality unless it registers itself.
Effect of Affiliation
Inclusion of [the federation] in the registration is
merely to stress that they are its affiliates at the
time of registration. It does not mean that said
local unions cannot stand on their own.
Affiliation does not mean they lost their own
legal personality. [Adamson v CIR, 1984]
D.
PROHIBITED
STRIKE/LOCKOUT
ACTIVITIES
IN
Disaffiliation
General rule: Local unions may disaffiliate from
the mother union.
Disaffiliation Must be by a Majority Decision
The members shall determine by secret
ballot, after due deliberation, any question
of major policy affecting the entire
membership of the organization, unless the
nature of the organization or force majeure
renders such secret ballot impractical, in
which case, the board of directors of the
organization may make the decision. [Art.
247 (d)]
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E. APPEAL/PROCEDURAL REMEDIES
E.1. REINSTATEMENT PENDING APPEAL
An order for reinstatement entitles an employee
to receive his accrued backwages from the
moment the reinstatement order was issued up
to the date when the same was reversed by a
higher court without fear of refunding what he
had received. [Garcia v. Philippine Airlines, Inc.,
G.R. No.164856, 2009]
E.1.a. REQUIREMENTS
APPEAL TO NLRC
TO
PERFECT
(3) No employer shall use or employ any strikebreaker, nor shall any person be employed
as a strike-breaker.
(4) No public official or employee, including
officers and personnel of the New Armed
Forces of the Philippines or the Integrated
National Police, or armed person, shall
bring in, introduce or escort in any manner,
any individual who seeks to replace strikers
in entering or leaving the premises of a
strike area, or work in place of the strikers.
The police force shall keep out of the picket
lines unless actual violence or other
criminal acts occur therein: Provided, That
nothing herein shall be interpreted to
prevent any public officer from taking any
measure necessary to maintain peace and
order, protect life and property, and/or
enforce the law and legal order.
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E.3. REMEDIES
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OF
F. UNFAIR LABOR
EMPLOYERS
PRACTICE
Interrogation
General rule: employer may interrogate its
employees regarding their union affiliation for
legitimate purposes and with the assurance
that no reprisals would be taken against the
unionists.
Examples:
(1) a representation by the employee that he is
not a member of a labor organization
(2) a promise by the employee that he will not
join a union
(3) a promise by the employee that upon
joining a labor organization, he will quit his
employment
Speech
The acts of a company which subjects a union to
vilification and its participation in soliciting
membership for a competing union are also
acts constituting a ULP. [Phil. Steam Navigation
Co. v. Phil. Marine Officers Guild, 1965]
Exception:
(1) contracted-out services or functions are
performed by union members AND
(2) contracting out will interfere with, restrain,
or coerce employees in the exercise of their
right to self-organization. [Art. 248 (c)]
Espionage
Espionage and/or surveillance by the employer
of union activities are instances of interference,
restraint or coercion of employees in connection
with their right to organize, form and join
unions as to constitute unfair labor practice. []
The information obtained by means of
espionage is invaluable to the employer and
can be used in a variety of cases to break a
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(6) Testimony
It is an act of ULP by an employer to dismiss,
discharge or otherwise prejudice or discriminate
against an employee for having given or being
about to give testimony under this Code. [Art.
254 (f)]
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Managerial Employees
A managerial employee is one who is vested
with the powers or prerogatives to lay down and
execute management policies and/or to hire,
transfer, suspend, lay-off, recall, discharge,
assign or discipline employees. [Art. 218 (m)]
Supervisory Employees
Supervisory employees are those who, in the
interest of the employer, effectively recommend
such managerial actions if the exercise of such
authority is not merely routinary or clerical in
nature but requires the use of independent
judgment. [Art. 218 (m)]
I.
Rationale
Supervisory
employees,
while
in
the
performance of supervisory functions, become
the alter ego of the management in the making
and the implementing of key decisions. It
would be difficult to find unity or mutuality of
interests in a bargaining unit consisting of a
mixture of rank-and-file and supervisory
Purpose
To safeguard and ensure the existence of the
union and thus, promote unionism in general as
a state policy.
Limitation
Employees who are already members of
another union at the time of the signing of the
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Types
(1) Closed shop
(2) Maintenance of membership shop
(3) Union shop
(4) Modified union shop
(5) Agency shop
Closed shop
[In a Closed shop], no person may be employed
in any or certain agreed departments of the
enterprise unless he or she is, becomes, and, for
the duration of the agreement, remains a
member in good standing of a union entirely
comprised of or of which the employees in
interest are a part. [GMC v. Casio, 2010]
Agency shop
An agreement whereby employees must either
join the union or pay to the union as exclusive
bargaining agent a sum equal to that paid by
the members. [Azucena]
Construction
Any doubt as to the existence of a closed shop
provision in the CBA will be resolved in favor of
the nonexistence of the closed shop provision.
Check-off
A check-off is a process or device whereby the
employer, on agreement with the Union,
recognized as the proper bargaining
representative, or on prior authorization from
the employees, deducts union dues or agency
fees from the latters wages and remits them
directly to the Union. [Marino v. Gamilla, 2009]
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Conditions:
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