Académique Documents
Professionnel Documents
Culture Documents
labor, by providing for certain standards of terms & conditions of EENT or providing a
legal framework w/in w/c these terms & conditions & the EENT relationship may be
negotiated, adjusted & administered.
1. Labor Standards sets out the minimum terms, conditions & benefits of EENT that
EERS must provide or comply w/ & to w/c EES are entitled as a matter of legal right.
2. Labor Relations defines the status, rights & duties and the institutional mechanisms,
that govern the indiv& collective interactions of EERS, EES, or their representatives.
Labor physical toil although it does not necessarily exclude the application of skill (thus
skilled&unskilled labor)
Skill the familiar knowledge of any art/science, united w/ readiness & dexterity in
execution/performance or in the application of the art/science to practical purposes.
Work (broader than labor) covers all forms of physical/mental exertion, or both
combined, for the attainment of some obj other than recreation/amusement per se.
Worker (broader than EE) may refer to self-employed people & those working in the
service & under the control of another, regardless of rank, title, or nature of work.
Employee a salaried person working for another who controls or supervises the means,
manner or method of doing the work.
1987 Consti: protects the rights of workers & promote their welfare
1. to organize themselves
2. to conduct collective bargaining/negotiation w/ mgt;
3. to engage in peaceful concerted activities, including to strike in accordance w/
law; and
4. to participate in policy & decision-making processes affecting rights & benefits
Other Consti provisions that protect the Rs/promote the welfare of workers
Constiprol-labor, but recognizes the indispensable role of the private sector, encourages
private enterprise and provides incentives to needed investments
- the power of the govt to enact laws, w/in Constitutional limits to promote the order,
safety, health, morals & general welfare of society
- power inherent in govt to protect itself & all its constituents, & for this purpose to
hold the govt immune so far as necessary, from any limitatins imposed in the past.
- An imposition of restraint upon liberty or property in order to foster the common
good.
Birth of the LC
1. Labor relations must be made both responsive & responsible to national devt
2. Labor laws/labor relations during a period of national emergency must substitute
rationality for confrontation; strikes or lockouts give way to a rational process
w/c is arbitration
3. Laggard justice in the labor field is injurious to the workers, the EERS & the
public; labor justice can be made expeditious w/o sacrificing due process.
4. Manpower devt& EENT must be regarded as a major dimension of labor policy,
for there can be no real equality of bargaining power under conditions of severe
mass unemployment.
5. There is a global labor market available to qualified Filipinos, esp those who are
unemployed or whose EENT is tantamount to unemployment bcoz of their very
little earnings.
6. Labor laws must command adequate resources & acquire a capable machinery
for effective & sustained implementation; when labor laws cannot be enforced,
both EERS & the workers are penalized, & only a corrupt few (those who are in
charge of implementation) may get the reward they dont deserve.
7. Thereshld be popular participation in national policy-making through what is now
called tripartism.
Art 3. [Declaration of Basic Polici] The State shall afford protection to labor,
promote full EENT, ensure equal work opportunities regardless of sex, race or
creed, and regulate the relations bet workers & EERS. The State shall assure the
rights of workers to self-org, collective bargaining, security of tenure, and just &
humane conditions of work.
Balanced Approach shared responsibility. Worker & EER sectors are interdependent.
Art4. [Construction in Favor of Labor] All doubts in the implementation & interpretation of
the provisions of this Code, including its IRRs, shall be resolved in favor of labor.
Concern for the Lowly Worker SC reaffirms its concern for the lowly worker who, often
at his EERs mercy, must look up to the law for his protection. (Reason: the EER
stands on higher footing than the EE: (1,) There is greater supply than demand for
labor; (2) the need for EENT by labor comes from vital & even desperate necessity.)
Mgt Rights entitled to respect & enforcement in the interest of simple fair play.
Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the
administration & enforcement of this Code or any of its parts shall promulgate the
necessary IRRs. Such RRs shall become effective 15 days after announcement of
their adoption in the newspapers of gen. circulation.
Art 6. [Applicability] All Rs& benefits granted to workers under this Code shall, except as
may otherwise be provided herein, apply alike to all workers, whether agricultural or
non-agricultural.
- also applies to a govtcorp incorporated under the Corporation Code.
- Test WON a govt-owned/-controlled corp is subj to CS Law is the manner of its
creation. Govt corps created by special charter aresubj to its provisions, while
those incorporated under the gen Corp Law are not w/in the coverage of the CS
law.
PNOC-EDC incorp under the Corp Law subj to LC
NHA incorp under Act 1459, the former corp law LC
Govt agencies Ees covered by CS Law
In all cases, the landowners may retain an area of not more than 7 hectares if
such landowner is cultivating such area or will now cultivate it.
Art 9. [Determination of Land Value] For the purpose of determining the cost of the land to
be transferred to the tentant-farmer, the value of the land shall be equivalent to 2 &
times the average harvest of 3 normal crop yrs immediately preceding the
promulgation of PD 27 (OCT 21, 1972).
The total cost of the land, including interest at the rate of 6% per annum, shall be
pd by the tenant in 15 yrs of 15 equal annual amortizations.
The govt shall guarantee such amortizations w/ shares of stock in govt-owned & -
controlled corps.
Art 10. [Conditions of Ownership] No title to the land acquired by the tenant-farmer under
PD 27 shall be actually issued to him unless & until he has become a full-fledged
member of a duly recognized farmers coop.
Title to the land acquired pursuant to PD 27 or the Land Reform Program of the
Govt shall not be transferable except by hereditary succession or to the Govt in
accdance w/ the provisions of PD 27, the Code of Agrarian Reforms & other existing
laws & regulations.
Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate the
necessary rules & regulations to implement the provisions of this Chapter.
*Land for the landless battlecry dramatizing the increasingly urgent demand of the
dispossessed for a plot of earth as their place under the sun.
*CARP Law signed by Cory, declaring full land ownership in favor of the beneficiaries of
the PD 27.
Share tenancy abolished, put the agricultural leasehold sys in its stead, geared towards
eventual ownership of land by its tillers
Consti- State shall undertake an Agrarian Reform Program, and encourage & undertake
the just distribution of all agri lands, subj to such priorities & reasonable retention limits
as the Congress may prescribe,
3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes private agri
lands devoted to commercial livestock, poultry & swine raising in the definition of
commercial farms is invalid. They are covered by the agrarian reform prog of the
State.
- an increased output invariably gives more work to more men, & never in the
history of the world has it more than temporarily, and then for only a very short
time, diminished by the number of men at work in any trade
The Greatest Exploiter Blas Ople
- 2 kinds of funds: (1) the Revenue w/c is over & above what is necessary for the
maintenance; and (2) the Stock w/c is over & above shat is necessary for the
EENT of their masters.
- The demand for those who live by wages necessarily increases w/ the
increase of the revenue & stock of every country and cannot increase w/o it. The
increase of revenue & stock is the increase of national wealth.
Aim: A more equitable distribution & ownership of land, w/ due regard to the rights of
landowners to just compensation & to the ecological needs of the nation
Basis: the R of farmers & regular farm workers, who are landless, to own directly or
collectively the lands they till or, in the case of other farm workers, to receive a share
of the fruits thereof
The State:
- shall respect the R of small landowners & shall provide incentives for voluntary
land-sharing
- shall recognize the R of farmers, farm workers & landowners, as well as
cooperatives & other independent farmers org, to participate in the planning, org,
&mgt of the program & shall provide support to agriculture though tech &
research & financial, production, marketing & other support services
- may resettle landless farmers & farm workers in its own agricultural estates
- shall encourage the formation & maintenance of economic-sized family farms to
be constituted by indiv beneficiaries & small landowners
- shall protect the Rs of subsistence fishermen to the preferential use of communal
marine & fishing resources both inland & offshore
- shall provide support to such fishermen thru appropriate tech & research,
adequate financial, production & marketing assistance
- shall protect offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fisherworkers shall redeive a just share from their labor in the
utilization of marine & fishing resources
- owners of agri land have the oblig to cultivate directly or thru labor admin the
lands they own & thereby make the land productive.
- Shall provide incentives to landowners to invest the proceeds of the agrarian
reform prog to promote industrialization, EENT & privatization of pub sector
enterprises
- May lease undeveloped lands of pub domain to qualified entities for the devt of
capital-intensive farms, traditional & pioneering crops esp those for export (subj.
to Rs of beneficiaries)
Definitions
5. Idle / Abandoned Land any agricultural land not cultivated, tilled or developed to
produce any crop nor devoted to any specific economic purpose continuously for a
period of 3 yrs immediately prior to the receipt of notice of acquisition by the govt
- but does NOT include land that has become permanently or regularly
devoted to non-agricultural purposes
Scope: all public & private agricultural lands, incl. other lands of the pub domain suitable
for agriculture
1. All alienable & disposable lands of the pub domain devoted to or suitable for
agriculture
2. All lands of the pub domain in excess to the specific limits as determined by
Congress
3. All other lands owned by the Govt devoted to or suitable for agri
4. All private lands devoted to or suitable for agri regardless of the agri products
raised/can be raised thereon
Retention Limits: no person may own or retain, directly, any pub or private agricultural
land, the size of w/c shall vary accdg to factors governing a viable family-sized farm
Presidental Agrarian Reform Council (PARC) shall provide the implementing rules
Multinational Corps all lands of the pub domain leased, held, or possessed by multi
corps or assocs, and other lands owned by the govt, or govt-owned/-controlled corps,
assocs, institutions or entities, devoted to existing & operational agribusiness or agro-
industrial enterprises, operated by multicorps shall be programmed for acquisition &
distribution immediately upon effictivity
Ancestral Lands shall include, but not limited to, lands in the actual, continuous & open
possession & occupation of the community and its members, provided that the
Torrens System shall be respected
1. Lands actually, directly & exclusively used for parks, wildlife, forest reserves,
reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves
2. Private lands actually, directly & exclusively used for prawn farms & fishponds
(provided that said prawn farms & fishponds have not been distributed and Cert
of Land Ownership Award issued to ARP.
3. Lands actually, directly & exclusively used & found to be necessary for national
defense, school sites & campuses, incl experimental farm stations operated by
pub/private schools for educational purposes, seeds and seedlings research and
pilot production center, church sites & convents apputenattherety, mosque sites
& Islamic centers appurtenant thereto, communal burial grounds & cemeteries,
penal colonies & penal farms actually worked by inmates, got & private research
& quarantine centers and all lands w/ 18% slope and over, except those
already developed
1. After having identified the land, the landowners & beneficiaries, DAR shall send
its notice to acquire the land to the owners;
2. w/in 30 days from date of receipt, landowners shall inform the DAR of his
acceptance/rejection of the offer;
a. if landowner accepts the offer, the LBP shall pay the landowner of the
purchase price of the land w/in 30 days after he executes & delivers a
deed of transfer in favor of the Govt and surrenders the Cert of Title
b. in case of rejection or failure to reply, DAR shall conduct summary admin
proceedings to determine compensation of the land
3. upon receipt of the landowner of the payment, or in case of rejection or no
response fr the landowner, upon the deposit w/ an accessible bank or the
compensation, the DAR shall take immediate possession of the land & shall
request the Register of Deeds to issue a TCT in the name of the RP.
4. Any party who disagrees w/ the decision may bring the matter to the court
*Provided: children of landowners who are qualified shall be given preference in the
distribution of the land of their parents
*Provided, that the children/spouse of the transferor shall have a R to repurchase the
land fr the govt/LBP w/in 2 yrs
Standing crops at the time of acquisition shall be retained by the landowner, Dar shall
give a reasonable time to harvest the same
Corporate Farms
- in case land cannot be divided directly, shall be owned collectively by the worker-
beneficiaries who shall form a workers cooperative or assoc w/c will deal w/ the
corp
- indiv members of the coop shall be provided w/ homelots or small farmlots for
their family use taken fr the land owned by the coop
Support Services
1. irrigation facilities
2. infrastructuredevt& pub works projects
3. govt subsidies for the use of irrig facilities
RA 9700 Act Strengthening the CARP, extending the acquisition & distribution of all
agricultural lands, instituting necessary reforms, amending for the purpose certain
provisions of RA 6657
- State shall protect Filipino enterprises against unfair foreign competition & trade
practices
- State recognizes that there is not enough agricultural land to be divided &
distributed to each farmer & regular farmworker so that each one can own his
economic-size family farm.
- Answer: simultaneous industrialization aimed at developing a self-reliant &
independent national economy effectively controlled by Filipinos
- State may, in the interest of national welfare or defense, establish & operate vital
industries
- Implementation of the prog shall be community-based
- State shall recognize & enforce the Rs of rural women to own & control land
- State shall provide incentives to landowners to invest the proceeds of the
agrarian reform prog to promote industrialization, EENT & privatization of the pub
sector enterprises
Added Definition
1. Rural women women who are engaged directly/indirectly in farming and/or
fishing as their source of livelihood, whether paid or unpaid, regular or seasonal,
or in food preparation, managing the household, caring for the children, & other
similar activities
2. Landless beneficiary one who owns less than 3 hectares of agri land
- Provincial, city &mungovt units acquiring private agri lands by expropriation to be used
for actual, direct & exclusive pub purposes, such as roads & bridges, pub markets,
school sites, resettlement sites, local govt facilities, pub parks &brgy plazas or squares
consistent shall not be subj to the 5-hectare retention limit
Order of Priority
Facts:
3 parcels of land were originally owned by the Aragons, tenanted by the late
ArcadioLandicho from 1949 until his death in 1972, afterwhich, his tenancy rights
were succeded by his son, petitioner Francisco Landicho (the other petitioners were
Buenaventura (Franciscos son), and Federico (Franciscos brother), helped him
cultivate the land
in 1976, Francisco voluntarily surrendered his tenancy Rs over the land to the
Aragons through a notarized kasulatan for a consideration of P1,000, but
petitioners continued cultivating the land until 1987 when Francisco executed
another notarized kasulatan thru w/c he surrendered his tenancy rights for a
consideration of P3,000.
On the same day as the execution of the 1987 kasulatan, the lands were sold by the
Aragons for P50,000 to respondent Felix Sia, who in turn converted the same to a
residential subd w/o a DAR clearance and ejected the petitioners therefrom.
Peitioners filed a protest before the DAR alleging that they are the tenants of the
lands and claimed that they are entitled to a disturbance compensation. They
alleged that they were fooled into signing over their tenancy rights thru the
machinations of the Aragons.
The respondents in their answer, denied such allegation and added that the
petitioners are barred by estoppel, laches and prescription
Held: A tenant is defined as a person who, himself and w/ the aid available from w/in his
immediate farm household, cultivates the land belonging to, or possessed by another,
w/ the latters consent for purposes of production, sharing the produce w/ the
landholder under the share tenancy system, or paying to the landholder a price certain
or ascertainable in produce or in money or both, under the leasehold tenancy system
For a tenancy relationship to exist, all of the ff essential requisites must be present:
Under the definition, only Francisco possesses the requisites of a tenant. Petitioners
Federico and Buenaventura are not tenants because consent (#3) by the
landowners is lacking. They are merely farm helpers of Francisco as part of his
immediate farm household. There was also no evidence to show that they gave a
share of their harvest to the Aragons (#6).
Issue 2: WON the respondents took advantage of Franciscos old age & illiteracy and
employed fraudulent schemes in order to deceive him into signing the Kasulatans
Held: As the legal tenant of the lands, Francisco had voluntarily surrendered his tenancy
rights when he knowingly & freely executed the 1987 Kasulatan. There was no
showing of foul play, because the Kasulatan was in Filipino, a language spoken &
understood by Francisco and was couched in plain and clear terms. Such kasulatan
was also duly notarized and are considered as public documents executed w/ all the
legal formalities which afford it the legal presumption of regularity and legality abent
full, clear and convincing evidence to the contrary.
Final ruling: Petitioners have no cause of action and the same has prescribed.
Facts:
Petitioner was employed by the respondent bank as utility clerk in 1971. Since
then, he had been promoted repeatedly up to 1998 when he was temporarily
assigned as caretaker of the bank and designated as Acting Asst. VP and OIC in
June of 1998.
Respondent bank is a banking institution originally known as Royal Savings Bank.
In 1983-84, it underwent serious liquidity problems and was placed under
receivership by the Central Bank, which ordered its closure in July of 1984. After
2 months, the respondent bank was reopened under the control &mgt of
Comsavings Bank.
In 1987, the GSIS acquired the interest of the respondent bank and took over the
control &mgt of the bank and renamed it as GSIS Family Savings Bank.
The designation of the petitioner as OIC & caretaker was recalled, however his
appointment as Acting Asst VP was retained.
In line w/ its policy to attain financial stability, the respondent bank adopted
measures, one of w/c is an early retirement program.
In april of 2001, petitioner opted to avail himself of this retirement package,
(supposedly under protest) & received the amt of P1,342M as retirement pay.
In july 2002, petitioner filed a complaint against resp bank for constructive
dismissal & underpayment of wages, 13th month pay & retirement benefits before
the Labor Arbiter. He alleged discrimination & unfair treatment, and intense
pressure on the part of the resp bank forced him to retire at the prime of his life.
Held: No.
Discrimination failure to treat all persons equally when no reasonable distinction can be
found bet those favored & those not favored. It must be clearly established that (1)
there is no reasonable distinction for classification that can be obtained bet persons
belonging to the same class, and (2) persons belonging to the same class have not
been treated alike
Petitioner failed to established that he possessed the same skills, competencies &
expertise as those newly hired to eliminate the possibility of substantial distinction that
may warrant unequal treatment bet them.
Petitioner contends that in cases of constructive dismissal, the burden of proof rests on
the EER to show that the EE was dismissed on a valid & just cause. But this legal
principle presupposes that there is indeed an involuntary separation from EENT & the
facts attendant to such forced separation was clearly established, w/c the petitioner
failed to do. It was him who availed of the voluntary retirement program. And absent
the showing of duress, the presumption is that it was done by him voluntarily.
While the state promotes the utmost protection of labor against capital, it does not mean
that the working class is upheld in all labor dispute. The law also recognizes the rights
of management.
PRE-EMPLOYMENT
The DOLE
1. The promotion of gainful EENT opportunities and the optimization of the devt&
utilization of the countrys manpower resources;
2. The advancement of workers welfare by providing for just and humane working
conditions and terms of EENT;
3. The maintenance of industrial peace by promoting harmonious, equitable and
stable EENT, relations that assure protection for the Rs of all concerned parties.
Private fee-charging EEnt Agencyany person/ entity engaged in the recruitment &
placement of workers for a fee w/c is charged directly/indirectly from the workers or
employers or both
Emigrant any person, worker or otherwise, who emigrates to a foreign country by virtue
of an immigrant visa or resident permit to its equivalent in the country of destination
1. to organize & establish new EENT offices in addition to existing EENT offices
under the DOLE as the need arises;
2. to organize & establish a nationwide job clearance & information system to inform
applicants registering w/ a particular EENT office of job opportunities in other
parts of the country as well as job opportunities abroad;
3. to develop & organize a program that will facilitate occupational industrial and
geographical mobility of labor and provide assistance in the relocation of workers
from one area to another; and
4. to require any person, establishment, org, or institution to submit such EENT
information as may be prescribed by the Sec of Labor.
1. To formulate & develop plans & programs to implement the EENT promotion
objectives of this Title;
2. To establish & maintain a registration and/or licensing system to regulate private
sector participation in the recruitment & placement of workers, locally & overseas,
and to secure the best possible terms & conditions of EENT for Filipino contract
workers and compliance therewith under such rules & regulations as may be
issued by the DOLE;
3. To formulate & develop EENT programs designed to benefit disadvantaged
groups & communities;
4. To establish & maintain a registration and/or work permit system to regulate the
EENT of aliens;
5. To develop a labor market information system in aid of proper manpower and
development planning;
6. To develop a responsible vocational guidance & testing system in aid of proper
human resources allocation; and
7. To maintain a central registry of skills, except seamen
- over all matters/cases involving EE-EER relations including money claims, arising
out of or by virtue of any law or contracts involving Filipino workers for overseas
EENT except seamen: Provided, thet the Bureau of Employment Services
(BES) (now BLE) may, in the case of the NCR, exercise such power, whenever
the DOLE deems it appropriate.
The decisions of the regional offices of the BES if so authorized by the Sec of DOLE
shall be appealable to the NLRC upon the same grounds provided in Art 233 hereof.
Minister of Labor has the power to impose & collect fees, based on rates recommended
by the BES. Such fees shall be deposited in the National Treasury as a special acct
of the General Fund, for the promotion of the objectives of the BES, subj to the
provisions of Sec 40 of PD 1177.
: Exceptions
POEA has taken over the functions of the Overseas Employment Development Board
(OEDB) and the National Seamen Board (NSB)
2 Classifications
Regulatory Functions
Adjudicatory Functions
Jurisdiction of POEA
1. all cases w/c are administrative in character, involving or arising out of violations
of rules & regulations relating to licensing & registration of recruitment and
employment agencies/entities; and
2. disciplinary action cases and other special cases w/c are administrative in
character, involving EERS, principals, contracting partners and Filipino migrant
workers
3. NO jurisdiction to enforce foreign judgment (must be brought before the regular
courts). POEA is an administrative (not a court), exercising adjudicatory or quasi-
judicial functions
4. NO jurisdiction over torts
- any compromise agreement on money claims inclusive of damages shall be paid w/in 4
months from the approval of the settlement
1. The salary of such official who fails to render his decision/resolution w/in the
prescribed pd shall be, or caused to be, withheld until such official complies
therewith;
2. Suspension for not more than 90 days; or
3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs
If EE is terminated before end of contract w/o just cause, EERS will be ordered to pay
their salaries corresponding to the unexpired portion of their EENT contract
A worker dismissed from overseas EENT w/o just cause as defined by law/contract is
entitled to full reimbursement of his placement fee w/ interest at 12% per annum, plus
the salary for the unexpired portion of their EENT contract.
Permanent disability the inability of a worker to perform his job for more than 120 days,
regardless of WON he loses the use of any part of his body
Total Disability disablement of an EE to earn wages in the same kind of work of similar
nature that he was trained for or accustomed to perform, or any kind of work w/c a
person of his mentality and attainments could do. It does not mean absolute
helplessness.
In disability compensation, it is not the injury w/c is compensated, but rather it is the
incapacity to work resulting in the impairment of ones earning capacity
Disability benefits by seamen a matter governed not only by medical findings but by law
& contract
- shall be paid beginning on the 1st day of such disability. If caused by an
injury/sickness it shall not be paid longer than 120 consec days except where such
injury/sickness still requires medical attendance beyond 120 days but not to exceed
240 days from onset of disability in w/c case benefit for temporary total disability shall
be paid.
Agencies Given the Duty to promote the welfare & rights of migrant workers:
1. DFA
2. DOLE
3. POEA
4. OWWA Overseas Workers Welfare Administration provides social & welfare
services including insurance coverage, legal assistance, placement assistance
and remittance services to Filipino overseas workers. Under RA8042, it shall
provide the Filipino migrant worker & his faily assistance in the enforcement of
contractual obligs by agencies, entities and/or their principals;
5. RPM - Re-Placement and Monitoring Center develops livelihood programs for
the returning workers to reintegrate the returning migrant workers to the Ph
society;
6. NLRC tasked w/ the settlement/adjudication of labor disputes
Disqualified from Recruitment & Placement of Workers for Overseas EEnt whether for
profit or not
1. Travel agencies & sales agencies of airline companies;
2. Officers/members of the board of any corp or members in a partnership engaged
in the business of a travel agency;
3. Corps & partnerships, when any of its officers, members of the board or partners,
is also an officer, member of the board or partner of a corp or partnership
engaged in the business of a travel agency (interlocking officers)
4. Persons, partnerships or corps which have derogatory records, such as but not
limited to:
a. Those certified to have derogatory record/info by the NBI or by the Anti-
illegal Recruitment Branch of the POEA;
b. Those against whom probable cause or prima facie finding of guilt for
illegal recruitment or other related cases exists;
c. Those convicted of cases and/or crimes involving moral turpitude;
d. Those agencies whose licenses have been previously cancelled or
revoked by POEA for violation of RA 8042, PD 442 as amended and their
IRR as well as the Labor Codes IRR
e. Officials/EES of the DOLE or other govt agencies directly involved in
overseas EENT program and their relatives w/in the 4th degree of
consanguinity or affinity; and
f. Those whose License have been previously cancelled o revoked
Non License or Non-Holder of Authority any person/corp/entity w/c has not been issued
a valid license or authority to engage in recruitment & placement by the Sec of Labor,
or whose license or authority has been suspended, revoked or cancelled by the POEA
and the Secretary.
Jurisdiction
The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel a
license
Contract by Prncipal
Even if it was the principal of the manning agency who entered into contract w/
the EE, the manning agent in the PH is jointly &solidarily liable w/ the principal
Consequences of Conviction
1. Automatic revocation of license/authority;
2. Forfeiture of the cash & surety bonds;
3. Conviction for the crime of estafa, if found guilty thereof
Note: Max penalty if the person illegally recruited is less than 18 y/o or committed by a
non-licensee or non-holder of authority
Absence of receipts evidencing payment, not fatal to prosecutions case for illegal
recruitment as long as the witnesses can positively show through their respective
testimonies that the accused is the one involved in prohibited recruitment
Liability of Local EEnt agency solidarily liable w/ the foreigh principal for unpaid salaries
of a worker recruited. Before recruiting, the agency is required to submit a doc
containing its power to sue and be sued jointly and solidarily w/ the principal or
foreign-based EER for any of the violations of the recruitment agreement and the
contracts of EEnt
Liability of Company Engaged in Illegal Recruitment may be held as principal, together
his EER, if it is shown that he actively & consciouslyparticipated in illegal recruitment
Issuance of search warrant/warrant of arrest
Art 38 is unconstitutional inasmuch as it gives the Sec of Labor the power to
issue search or arrest warrants
The exception is in cases of deportation whom the President or the
Commissioner of Immigration may order arrested, following a final roder of
deportation
Note: the Sec of Labor may order closure of illegal recruitment establishments
because it is only administrative & regulatory in nature
Working Hrs shall not exceed the max number of hrs prescribed by law, if any, for a
worker of his age and sex. Time spent in compulsorily theoretical instruction shall be
considered hrs of work. An apprentice not otherwise barred by law from working 8hrs
may be requisted by his EER to work overtime and paid accordingly.
FACTS:
Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12
months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month
overtime pay, and 7 days paid vacation leave per month.
Respondents did not deliver on their promise to make Serrano Chief Officer.
Hence, Serrano refused to stay on as second Officer and was repatriated to the
Philippines, serving only two months and 7 days, leaving an unexpired portion of nine
months and twenty-three days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was
declared illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA 8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042.
ISSUES:
1. Whether or not the subject clause violates Section 10, Article III of the Constitution on
non-impairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and
Section 18, Article II and Section 3, Article XIII on labor as a protected sector.
HELD:
The subject clause may not be declared unconstitutional on the ground that it impinges
on the impairment clause, for the law was enacted in the exercise of the police power of
the State to regulate a business, profession or calling, particularly the recruitment and
deployment of OFWs, with the noble end in view of ensuring respect for the dignity and
well-being of OFWs wherever they may be employed.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions
translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all
OFWs. However, a closer examination reveals that the subject clause has a
discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs with
employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
The subject clause singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative
of the right of petitioner and other OFWs to equal protection.
The subject clause or for three months for every year of the unexpired term, whichever is
less in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED
UNCONSTITUTIONAL.
FACTS:
Sometime in the months of January to February, 1996, representing to have the
capacity, authority or license to contract, enlist and deploy or transport workers for
overseas employment, did then and there, willfully, unlawfully and criminally recruit,
contract and promise to deploy, for a fee the herein complainants, namely, Imelda D.
Bamba, Geraldine M. Lagman and Alma E. Singh, for work or employment in Los
Angeles, California, U.S.A. in Nursing Home and Care Center.
Prosecution presented three witnesses, namely Imelda Bamba, Geraldine
Lagman and Alma Singh.
According to Bamba, she met the appellant on a bus. She was on her way to SM
North Edsa where she was a company nurse. Appellant introduced himself as a recruiter
of workers for employment abroad. Appellant told her he could help her get employed as
nurse. Appellant gave his pager number and instructed her to contact him is shes
interested. Sometime in January 1996, appellant fetched her at her office, went to her
house and gave him the necessary documents and handed to appellant the amount of
US$300.00 and the latter showed her a photocopy of her supposed US visa. However,
the appellant did not issue a receipt for the said money. Thereafter, appellant told her to
resign from her work because she was booked with Northwest Airlines and to leave for
USA on Feb, 1996. On the scheduled departure, appellant failed to show up. Instead,
called and informed her that he failed to give the passport and US visa because she had
to go to province because his wife died. Trying to contact him to the supposed residence
and hotel where he temporarily resided, but to no avail.
WinessLagman testified that she is a registered nurse. In January 1996, she went
to SM North Edsa to visit her cousin Bamba. At that time Bamba informed her that she
was going to meet to appellant. Bamba invited Lagman to go with her. The appellant
convinced them of his ability to send them abroad. On their next meeting, Lagman
handed to the latter the necessary documents and an amount of US$300.00 and 2 bottles
of black label without any receipt issued by the appellant. Four days after their meeting, a
telephone company called her because her number was appearing in appellants cell
phone documents. The caller is trying to locate him as he was a swindler. She became
suspicious and told Bamba about the matter. One week before her scheduled flight,
appellant told her he could not meet them because his mother passed away.
Lastly, Alma Singh, who is also a registered nurse, declared that she first met the
appellant at SM North Edsa when Imelda Bamba introduced the latter to her. Appellant
told her that he is an undercover agent of FBI and he could fix her US visa. On their next
meeting, she gave all the pertinent documents. Thereafter, she gave P10,000 to the
appellant covering half price of her plane ticket. They paged the appellant through his
beeper to set up another appointment but the appellant avoided them as he had many
things to do.
The accused Jamilosa testified on direct examination that he never told Bamba
that he could get her a job in USA, the truth being that she wanted to leave SM as
company nurse because she was having a problem thereat. Bamba called him several
times, seeking advices from him. He started courting Bamba and went out dating until
latter became his girlfriend. He met Lagman and Singh thru Bamba. As complainants
seeking advice on how to apply for jobs abroad, lest he be charged as a recruiter, he
made Bamba, Lagman and Singh sign separate certifications, all to effect that he never
recruited them and no money was involved. Bamba filed an illegal recruitment case
against him because they quarreled and separated.
RTC rendered judgment finding accused guilty beyond reasonable doubt of illegal
recruitment in large scale.
ISSUE: Illegal Recruitment in a large scale?
HELD: Recruitment and placement" refers to 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.
Illegal recruitment shall mean 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 who, in any manner, offers or promises for a fee employment
abroad to two or more persons shall be deemed so engaged.
To prove illegal recruitment in large scale, the prosecution is burdened to prove
three (3) essential elements, to wit: (1) the person charged undertook a recruitment
activity under Article 13(b) or any prohibited practice under Article 34 of the Labor Code;
(2) accused did not have the license or the authority to lawfully engage in the recruitment
and placement of workers; and (3) accused committed the same against three or more
persons individually or as a group. As gleaned from the collective testimonies of the
complaining witnesses which the trial court and the appellate court found to be credible
and deserving of full probative weight, the prosecution mustered the requisite quantum of
evidence to prove the guilt of accused beyond reasonable doubt for the crime charged.
Indeed, the findings of the trial court, affirmed on appeal by the CA, are conclusive on this
Court absent evidence that the tribunals ignored, misunderstood, or misapplied
substantial fact or other circumstance.
The failure of the prosecution to adduce in evidence any receipt or document signed
by appellant where he acknowledged to have received money and liquor does not free
him from criminal liability. Even in the absence of money or other valuables given as
consideration for the "services" of appellant, the latter is considered as being engaged
in recruitment activities. It can be gleaned from
the language of Article 13(b) of the Labor Code that the act of recruitment may be for
profit or not. It is sufficient that the accused promises or offers for a fee employment to
warrant conviction for illegal recruit
CONDITIONS OF EMPLOYMENT
WORKING CONDITIONS & REST PERIODS
EER-EE Relationship is not dependent upon the agreement of the parties. The
characterization by law prevails over that in the contract. the existence of an EER-
EE relshp is not a matter of stipulation but a question of law
d. depends on the facts of each case
Core/Non-core Jobs
e. EER-EE relship may comver core/non-core activities of the EERs
business.
f. The kind of work is not the definitive test of whether the worker is an EE
or not.
Employer any person, natural or juridical, domestic or foreign, who carries on in the PH
any trade, business, industry, undertaking or activity of any kind and uses the services
of another person who is under his order as regards employment
Employee any person who performs services for an EER in w/c either or both mental &
physical efforts are used and who receives compensation for such services, where
there is an EER-EE relationship
Independent contractors can employ others to work & accomplish contemplated result
w/o consent of contractee, while EE cannot substitute another in his place w/o consent
of his EER.
2. The Economic Dependence Test observes the need to consider the existing
conditions bet the parties
Evidence of employment
i. id card
ii. vouchers of salaries
iii. sss registration
iv. memorandum
Purpose of 8-hr Labor law not only to safeguard the health & welfare of the laborer/EE,
but in a way to minimize unemployment by forcing ERs, in cases where more than 8-
hr operation is necessary, to utilize different shifts to laborers/EEs working only for 8
hrs each
Part-time Work not prohibited. (What the law regulates is work exceeding 8hrs)
GR: Wage & benefits of a part-timer are in proportion to the number of hrs worked.
Hospital EEs are entitled to a full weekly salary w/ apid 2 days off if they have
completed the 40hr/5day workweek (7days pay for 5 days work)
Rest periods of short duration during work hrs shall be counted as hours worked
Pre/Postliminary Activities
j. Preliminary (before work) and postliminary (after actual work) activities
are deemed performed during working hrs, where such activities are
controlled/required by the ER and are pursued necessarily & primarily for
the ERs benefit
Waiting Time
k. whether waiting time constitutes working time depends on the
circumstances on each particular case
l. controlling factor is WON time spent in idleness is so spent
predominantly for the ERs benefit or for the EEs
1. Engaged to Wait waiting time spent by EE shall be
considered as working time if waiting is considered an
integral part of his work or if the EE is required/engaged
by an ER to wait
2. Waiting to Engage idle time is not work time
On Call
n. although EE can rest completely and may not be actually at work, if they
are required to be in their place of work before/after the regular working
hrs and w/in the call of their ERs, the time they stay in the place of work
sould not be discounted from their working hrs
o. EE cannot use the time effectively for his own purposes is working while
on call.
p. Not on call: EE is not required to remain on the ERs premises but is
merely required to leave work at his home or w/ company officials where
he may be reached
q. Public health workersOn call status refers to a condition when public
health workers are called upon to respond to urgent or immediate need
for health/medical assistance or relief work during emergencies such that
he/she cannot devote the time for his/her own use.
Travel Time time spent walking, riding, or traveling to/from place of work
a. Travel from home to work not worktime when EE receives an
emergency call outside his regular working hrs and is required to travel to
his regular place of business or some other worksiteworking time
b. Travel that is all in a days work time spent by an EE in travel as part of
his principal activityhrs worked
c. Travel away from home travel that keeps an EE away from home
overnight worktime when it cuts across the EEs workday
Grievance Meeting time spent in adjusting grievance bet ER &Ee during the time the
EEs are required by the ER to be on the premiseshrs worked
if a bona fide union is involved depends on the CBA or the custom practice under
the CBA
Note: The 8-hr work period does not include the meal break. EEs may leave the
company premises as long as they return to their posts on time.
Overtime Pay additional compensation for work performed beyond 8hrs w/in the
workers 24-hr workday regardless whether the work covers 2 calendar days
Basis cash wage only, w/o any deduction
Rates
1. OT on a regular work day at least 25% thereof
2. OT on a holiday or rest day at least 30% thereof
* CBA may stipulate higher OT pay rate
PALs Formula:
monthly salary x 12/365 days in a yr = Basic daily rate
basic daily rate/8 Basic hourly rate
Proposed Formula:
Monthly salary x 12/actual working days = BDR
BDR/8 = BHR
GR: An express instruction from the ER to the EE to render OT work is not required for
the EE to be entitled to OT pay. It is sufficient that the EE is permitted or suffered to
work. Neither is an express approval by a supervisor needed.
: On rest days & holidays, written authority after office hrs is required for the EE to be
entitled to compensation
A verbal instruction to render OT work prevails over a memorandum prohibiting
such work.
OT claim is not justified for days where no work was required and no work could be
done (i.e. brownout, machine repair, lack of rawmats)
OT Work of Seamen whether or not the sailors are entitled to OT pay is not whether
they were on board and cannot leave ship beyond the regular 8 working hrs a day, but
whether they actually rendered service in excess of 8 hrs
OT work must be proven by factual & legal basis
Waiver of OT Pay
GR: OT pay cannot be waived expressly or impliedly. Any contrary stipulation is null and
void.
Exeptions
1. When the waiver is made in consideration of benefits & privileges w/c may be more
than what will accrue to them in OT pay; and
2. Compressed workweek (CWW) the number of work days is reduced but the number
of work hrs in a day is increased to more than 8, but no OT pay may be claimed.
Requisites of Compressed Workweek to be valid:
1. The scheme is expressly and voluntarily supported by majority of the EEs affected;
2. In firms using substances, or operating in conditions that are hazardous to health, a
certification is needed from an accredited safety org or the firms safety
committee that work beyond 8hrs is w/in the limits/levels of exposure set by
DOLEs occupational safety & health standards;
3. The DOLE Regional Office is notified.
Illustrations of OT Computations
1. Regular Workdays
Reg Basic Wage + 25% thereof
2. Legal or Regular Holidays
Holiday Wage Rate (200%) + 30% thereof
3. Rest Days or Special Holidays
Rest day/Special Holiday wage rate (130%) + 30% thereof
4. Scheduled Rest Day w/c is also a Special Holiday
Rest day & special holiday wage rate (150%) + 30% thereof
5. Scheduled rest day w/c is also a legal or regular holiday
Rest day & legal holiday wage rate (260%) + 30% thereof
6. Double holiday
Double holiday wage rate (400%) + 30% thereof
EE will receive 200% of his regular daily wage when both regular holidays
fall on the same day and he does not work (Law provides that he shall get
his regular daily wage of each regular holiday)
100% of ArawngKagitingan, 100% Good Friday. If he works on that day, he
gets 400%
OT pay integrated in Basic Salary (composite/package pay/all-inclusive salary) not
illegal nor unusual for executives or managers
But for non-managerial EEs, there must be:
1. A clear written agreement
2. Agreed legal wage rate and OT pay computed separately are equal or higher than
the separate amounts legally due
FLEXIBLE WORK ARRANGEMENTS
- alternative work arrangements or schedules other than the traditional or standard
work hrs, workdays or workweek. ERs may adopt them after due consultation w/
EEs, taking into acct the adverse consequence of the situation on the
performance and financial condition of the company.
- Its effectivity and implementation shall be temporary.
- Should be threshed out by the ER and EE
- DOLE RegOfc must be notified prior to implementation
- In addition to CWW, the FWAs include:
1. Reduction of workdays where normal workdays per week are reduced
but should not last for more than 6 months
2. Rotation of workers where the EEs are rotated/alternately provided
work w/in the workweek
3. Forced leave EEs are required to go on leave for several days or
weeks, utilizing their leave credits if there are any
4. Broken-time schedule the work schedule is not continuous but the
number of hrs w/in the day or week is not reduced
5. Flexi-holiday schedule Ees agree to avail themselves of the holidays at
some other days, provided that there is no diminution of existing benefits
as a result of such arrangement
Premium pay or Differential compensation addtl compensation for work rendered by the
EE on days when normally he should not be working such as special holidays and
weekly rest days
Note: This article does not prohibit a CBA stipulation for higher benefits
EEs w/ salaries above Min Wage: the difference bet the min wage and the actual salary
received by the EEs cannot be deemed as their 13 th month pay and SIL pay
SIL VL/SL
Mandatory Art 95 Voluntary grant (ERs
policy or CBA)
Intended to alleviate the Intended to afford a
economic condition of the laborer a chance to get a
workers for it acts as much needed rest to
replacement for regular replenish his energy and
income that would not be renew his efficiency
earned during such
instance
Cannot be waived Must be demanded in its
opportune time; silence is
waiver
Commutable Not commutable
Pooled Tips
- where an establishment does not collect service charges but has a practice/policy of
pooling tips given voluntarily by its customers, the pooled tips should be monitored,
accounted for and distributed in the same manner as the service charges
Title 2 WAGES
Ch 1
Art 97. Definitions
Person an individual, partnership, assoc, corp, business trust, legal rep, or any
organized group of persons
Employer any person acting directly/indirectly in the interest of an ER in relation to an
EE & shall include the Govt& all its branches, subd, & instrumentalities, all govt-
owned/-controlled corps & institutions, as well as non-profit private institutions/orgs.
Employee- anyindiv employed by an ER
Agriculture includes farming in all its branches, and among other things, includes the
cultivation & tillage of soil, dairying, the production, cultivation, growing & harvesting of
any agricultural & horticultural commodities, the raising of livestock or poultry, and any
practices performed by a famer on a farm as an incident to or in conjunction with such
farming operations, but does not include the manufacturing or processing of sugar,
coconuts, abaca, tobacco, pineapples or other farm products.
Employ includes to suffer or permit to work
Wage paid to any EE; shall mean the renumeration 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 of calculating the same, w/c is
payable by and ER to an EE under a written/unwritten contract of ENT for work done
or to be done, or for services rendered and includes the fair and reasonable value, as
determined by the Sec of Labor, of board, lodging, or other facilities customarily
furnished by the ER ro the EE.
Includes commissions the recompense compensation/reward of an agent,
salesman, executor, trustee, receiver, factor, broker or bailee, when the same
is calculated as a percentage on the amt of his transactions or on the profit of
the principal
An ER may provide, for instance, food & housing to his EEs but he may
deduct their values from the EES wages to be determined by the Sec of
Labor.
Snacks
70% - deducted from wages (must be authorized in writing)
30% - subsidized by the ER
Fair rental value -shall be the reasonable cost of the operation & maintenance.
Fair & reasonable value shall NOT include any profit to the ER or to any person
affiliated w/ the ER
WAGES SALARY
Compensation for manual Denotes a higher degree
labor, skilled/unskilled, of ENT, or a superior
paid at stated times, and grade of services, and
measured by the day, implies a position or office
week, month, or season
Indicates considerable pay Suggestive of a larger and
for a lower and less more permanent or fixed
responsible character of compensation for more
ENT important service
Has a less extensive Compensation of clerks,
meaning than salary; being officers of pub corps, and
ordinarily restricted to pub offices
sums paid as hire or
reward to domestic or
menial servants and to
sums paid to artisans,
mechanics, laborers, and
other EEs of like class
In many situations, however, and as the SC states, they
are in essence synonymous
FACILITIES SUPPLEMENTS
Include articles or services
for the benefit of the EE or
his family but shall NOT
include tools of the trade
or articles or service
primarily for the benefit of
the ER or necessary to the
conduct of the ERs
business
Wage-deductible Not wage-deductible
Benefit/privilege part of the Benefit/privilege given to
laborers basic wages, the EE w/c constitutes an
extra renumeration above
& over his basic or
ordinary earning or wage
The distinction bet a facility & a supplement is in the
purpose, (not the kind) of the item.
State Marine Corp & Royal Line, Inc. v Cebu Seamens Assoc, inc: The vessel crew
were provided w/ free meals by the ship owners (petitioner), not part of their wages
but as a necessary matter in the maintenance of the health & efficiency of the crew
during the voyage. They should not be deducted from their wages. The deductions
should be returned to them.
Atok-Big Wedge Assoc v Atok-Big Wedge: Supplements constitute extra
renumeration or special privileges or wages, while facilities on the other hand, are
items of expense necessary for the laborers & his familys existence &substinence,
so that by express provision of law, they form part of the wage and when furnished by
the ER are deductible therefrom, since if they are not so furnished, the laborer would
spend and pay for them just the same.
Mabeza v NLRC: The ER failed to meet any of the requirements. More significantly, the
food & lodging or the electricity & water consumed by the EE were not facilities, but
supplements. Hotel workers are required to work different shifts and are expected to
be available at various odd hours, their ready availability is a necessary matter in the
operations of respondents hotel.
Gratuity - Given freely or w/o recompense; a gift; something voluntarily given in return for
a favor or services; a bounty; a tip.
- gratuity pay is not intended to pay a worker for actual services rendered. It is a
money benefit given to the workers whose purpose is to reward EEs who have
rendered satisfactory & efficient service to the company.
- Not mandatory & not part of labor standard law
A fair days wage for fair days labor. if there is no work performed by the EE, there
can be no wage or pay unless the laborer was able, willing and ready to work but
was prevented by the mgt or was illegally locked out, suspended or dismissed.
Equal pay for equal work. EEs working in the PH, if they are performing similar
functions & responsibilities under similar working conditions, should be paid under the
principle of equal pay for equal work.
Agricultural Activities
Preparation of the soil, planting of ramie stalks and transporting them to the
stripping sheds, stripping the fibers w/ the use of decorticating machines run
by electricity, drying the wet fibers, passing them through the brusher to
cleanse them of impurities and baling the fiers for the market
Planting & harvesting sugar cane & other chores incidental to ordinary farming
operations
Tillage of the soil, raising of crops including discovery of plant pests and their
eradication by means of insecticides
Fishpond business
farmhands employed to cultivate the vegetable garden of a non-agricultural
corp are not agricultural workers
Art 99. The minimum wage rates for agricultural and non-agricultural EEs and
workers in each and every region of the country shall be those prescribed by
the Regional Tripartite Wages and Productivity Boards
Statutory Minimum Wage the lowest wage rate fixed by law that an ER can pay his
workers. Compensation w/c is less than such minimum rate is considered an
underpayment that violates the law.
- determined for each region by the regional wage boards
- provided w/ margin to take care of contingencies, such as increase of prices of
commodities and increase in wants and to provide means for a desirable
improvement in EEs mode of living (A persons needs increase as his means
increase.)
Effects:
1. benefits all wage earners by setting a floor below w/c their pay cannot fall
2. raises the standard of competition among ERs, since it would protect the fair-
minded ER from the competition of the ER who pays his workers a wage
below subsistence;
3. is a prereq to the adoption of the SSS, w/c requires contributions from EEs
themselves
Ability to pay immaterial
- ER cannot exempt himself from liability to pay minimum wages because of poor
financial condition of the company
- Lack of funds is not a valid defense because the payment of minimum wage is a
mandatory statutory obligation
EEs not estopped to sue for difference in amount of wages
- the acceptance by an EE of the wages paid him w/o objection does not give rise to
estoppel precluding him from suing for the difference bet the amt received and the amt
he should have received pursuant to a valid minimum wage law
Exemptions to the coverage of the Rule on minimum wages
1. Household or domestic helpers, including family drivers and persons in the
personal service of another;
2. Homeworkers engaged in needle-work;
3. Workers employed in any establishment duly registered w/ the National Cottage
Industries and Devt Authority in accordance w/ RA 3470 provided that such
workers perform the work in their respective homes;
4. Workers in any duly registered cooperative when so recommended by the
Bureau of Cooperative Devt and upon approval by the Sec of DOLE, provided
however, that such recommendation shall be given only for the purpose of
making the cooperative viable and upon finding and certification of said Bureau
supported by adequate proof, that the cooperative cannot resort to other remedial
measures w/o serious loss or prejudice to its operation except through its
exemption from the requirements of the Rules. The exemption shall be subj to
such terms & conditions and for such period of time as the Sec of Labor may
prescribe.
5. Barangay Micro Business Enterprises (BMBE) (under RA 9178/BMBE Law),
provided that all EEs covered under this Act shall be entitled to the same benefits
given to any regular EE such as social security and health care benefits. BMBEs
are also exempt from income tax.
So that the rule against diminution of supplements/benefits may apply, it must be shown
that:
1. The grant of the benefit is founded on a policy or has ripened into a practice over
a long period;
2. The practice is consistent and deliberate;
3. The practice is not due to error in the construction or application of a doubtful or
difficult question of law; and
4. The diminution or discontinuance is done unilaterally by the ER.
Food/Meal Allowance
Cebu Autobus Co v United Cebu Autobus EEs Assoc: the company used to pay
its drivers and conductors, aside from their regular salary, a certain percentage
of their daily wage, as allowance for food. Discontinued by ER upon effectivity
of Minimum Wage Law. CIR:
company practice
Nonconributory Retirement Plan
Nestle PH Inc. v NLRC: The fact that the retirement plan is noncontributory, does
not make it a nonissue in the CBA negotiations. The EEs have a vested right
over the existing benefits voluntarily granted to them by their ER. The latter may
not unilaterally withdraw, eliminate or diminish such benefits.
Monthly Emergency Allowance
R. Tiangco& V. Tiangco v Hon. Leogardo: ERs, fishing operator and fishbroker,
discontinued paying the batillos (who work by unloading the fish from the
vessels dependent on arrival of the vessels, hence they work only a few days
a month averaging 4 hrs a day) a fixed monthly emergency allowance (which
they had been paid as a matter of practice/verbal agreement) illegal.
Full 13th month pay
Arco Metal Products v SamahanngManggagawa: ER cannot shrink away from its
responsibility by merely claiming that its acts of giving full 13th month pay to EEs
who have not worked for the full year is a mistake. It has become practice.
Pag-asa Steel Works v CA: To ripen into a company practice that is demandable
as a matter of right, the giving of the increase should not only be by reason of a
strict legal (as Wage Order) or contractual oblig (CBA), but by reason of an act of
liberality on the part of the ER.
Benefit on Reimbursement Basis
o Per diem allowance a daily allowance given for each day when an EE
is away from his home base; intended to cover their cost of lodging &
subsistence when on duty outside of their permanent stationif the EE
did not leave his permanent station and spent nothing for meals &
lodging outside thereof, then he is not entitled to per diem as there is
nothing to be reimbursed
o Monthly ration of gas given to certain managerial EEs is not part of their
basic salary. its temporary revocation does not constitute a diminution
of the EEs fringe benefits.
o The elimination of an existing benefit in exchange for an equal or better
one does not violate Art 100.
Reclassification of Position; Promotion
o from rank-and-file to supervisory - the position holders lose OT pay and
other benefits but Art 100 is not violated.
But, promotion & position reclassification must be done in GF.
National Sugar Refineries Corp v NLRS & NBSR Union: ER implemented a Job
Evaluation program affecting all EEs. Respondents were reclassified from rank-and-
file to supervisory/managerial positions. Because of that, they lost their OT, rest day &
holiday pay but it was also shown that they received upward adjustments in basic pay
& allowances. SC: This reclassification is in essence a promotion w/c is one of the
jurisprudentially recognized exclusive prerogatives of mgt, provided in is done in GF.
Union failed to prove BF on the part of the ER.
Promotion the advancement from one position to another with an increase in duties &
responsibilities as authorized by law and usually accompanied by an increase in
salary
WON bonus forms part of wages: depends on the circs and conditions for its payment.
a. If it is an addtl compensation w/c the ER promised and agreed to give w/o
any conditions imposed for its payment, such as success of business or
greater production or output, then it is part of the wage.
b. If it is paid only if profits are realized on a certain amt of productivity achieved,
it cannot be considered part of the wages.
c. Where it is not payable to all but only to laborers and only when the laborer
becomes more efficient or more productive, it is only an inducement for
efficiency, a prize therefor, not a part of the wage.
Luzon Stevedoring Corp case: An ER cannot be forced to distribute bonuses w/c
it can no longer afford to pay. To hold otherwise would be to penalize the ER
for his past generosity.
American Wire & Cable Daily Rated EEs Union v AWC Co Inc& the CA: For a
bonus to be enforceable, it must have been promised by the ER and expressly agreed
by the parties, or it must have had a fixed amt and had been a long and regular
practice on the part of the ER.
If the bonus was includedin or considered as the equivalent of the 13thMP, there would
be no need for a specific provision of such bonus in the CBA. But if the CBA did
provide for a bonus in graduated amts depending on the length of service, for example,
the intention is clear that the bonus provided in the CBA was meant to be in addition to
the legal requirement of 13thMP.
Ph Duplicators Inc v NLRC: the sales commission earned by the sales men
constitute part of their compensation, considering that the ER pays them a
small fixed/guaranteed wage; the greater part being composed of the
sales/incentive commissions earned on actual sales closed by them
2. If they are NOT integral part of the basic salary, then they shld be excluded.
Ph Agricultural Commercial & Industrial Workers Union v NLRC: the bus drivers &
conductors of respondent transic co. (allegedly paid on purely commission basis) are
entitled to 13thMP on both their fixed & guaranteed wage and commission
in the case of a bus conductor paid on commission only as supported by his pay
slips w/c indicated the varying amount of commissions he received each trip not
included in 13THMP
Proportionate 13thMP
- an EE who has resigned or was dismissed at any time before the time for payment
of the 13thMP is entitled to this monetary benefit in proportion to the length of time
he worked during the year. unless otherwise stipulated in the CBA
Distressed Employer exempted from paying 13thMP upon prior authorization from the
Sec of DOLE
Workers paid by results workers whose pay is calculated not on the basis of time spent
on the job but of the quantity & quality or the kind of work they turn out. (nontime work).
- stress is placed on the unit of work produced or the quantity thereof
- a uniform amount is paid per unit accomplished
B. As to Rate of Payment
1. Those who are paid piece rates w/c are prescribed in Piece Rate Orders issued
by DOLE
# of pieces x rate per pc
- these workers are not covered by the Rule on Hours of Work (no premium & OT
pay)
2. Those who are paid output rates w/c are prescribed by the ER and are not yet
approved by the DOLE.
a.) If the resulting amt is than the statutory min daily rate in rel to the # of
hrs worked, the worker will rcv such amt.
b.) BUT, if the amt is less than the applicable legal rate, it is possible that the
rates per pc are not in accordance w/ the standards. In that case, the ER
is required by law to pay the difference.
Entitlement to 13thMP
GR: PD 851 exempts from payment of 13thMP ERs of those who are paid a fixed amt for
performing specific work, irrespective of time consumed in the perf thereof,
except where the workers are paid on piece-work basis (those who are paid a standard
amt for every pc/unit of work produced that is more/less regularly replicated, w/o
regard to the time spent in producing the same) in w/c case the ER shall grant the
13thMP to such EEs.
The piece-rate worker should have rendered at least 1 month work/service during the
calendar yr.
GR:
1. At least once every 2 weeks; or
2. Twice a month at intervals not exceeding 16 days.
:
1. In case of force majeure or other circs beyond the ERs control, payment must be
made immediately after such occurrence has ceased.
2. If engaged to perform a task w/c cannot be completed in 2 weeks and in the
absence of CBA or arbitration award:
a. Payment shall be made at intervals not exceeding 16 days, in proportion
to the amt of work completed;
b. That final settlement is made upon completion of work.
Art 104. PLACE OF PAYMENT
GR: At or near the place of undertaking
:
1. When payment cannot be effected at or near the place of work by reason of
deterioration of peace & order conditions, or by reason of actual or impending
emergencies caused by fire, flood or other calamity rendering paymt thereat
impossible;
2. When the ER provides for free transpo to the EEs back and forth; and
3. Under any other analogous circs.
Prohibition: No ER shall pay his EEs in a bar, night or day club, drinking establishment,
massage clinic, dance hall or other similar places or in places where games are
played w/ stakes of money or thins representing money except in the case of
persons employed in such places.
Procedure
1) Claimants shall execute an affidavit attesting their relshp to the deceased
and the fact that they are his heirs, to the exclusion of all others (Affidavit
of Next of Kin);
2) In case of a minor heir, affidavit shall be executed on his behalf by his
natural guardian or next of kin;
3) Affidavit shall be presented to the ER who shall make paymt through the
Sec of Labor or his rep;
4) The rep shall act as referee in dividing the amt paid among the heirs; and
5) Payment of wages under this Art shall absolve the ER of any further
liability w/ respect to the amt paid.
3. Payment through a family member of the workers family
- where the ER is authorized in writing by the EE to pay his wages to a member of his
family
Labor-only contracting is wrong & prohibited bcoz it is an attempt to evade the obligs of
an EEr:
a) To respect EEs R to unionize;
b) R to ENT standards;
c) R to security of tenure
Substantial capital capital stocks and subscribed capitalization in the case of corps,
tools, equipment, implements, machineries and work premises, actually & directly
used by the sub/contractor in the performance or completion of the job, work or
service contracted out.
- the law does not require both substantial capital and investment in the form of
tools, equipment, machineries, etc.
Right to control refers to the right reserved to the person for whom the service of the
contractual workers are performed, to determine not only the end to be achieved, but
also the manner & means to be used in reaching that end
- EEs may resign from their jobs to become contractors to their former
ER, but the latter should cease controlling the means & method of doing the work
allegedly contracted, otherwise, the result is LOC.
Note: The principal shall be deemed the ER of the contractual EE in any of the ff cases as
declared by competent authority:
1. Labor-only contracting; and
2. Contracting arrangement falling w/in the prohibitions
Art 107. INDIRECT ER any person, partnership, assoc or corp w/c not being n ER,
contracts w/ an independent contractor for the perf of any work, task, job or proj.
The existence of ER-EE Relshp is a precondition to entitlement to labor standards & labor
relatiosRs.
2. a) Reimbursement the joint & several liability of the contractor & the principal
under Arts 106, 107 & 109 of the LC is mandated to assure compliance of the
provisions including the statutory min wage. The contractor is made liable by
virtue of his status as the direct ER; and the principal is made the indirect ER
of the contractors EEs for purposes of paying the EEs their wages should the
contractor fail to do so.
- where no ER-EE Relshp exists bet the parties, as to
reimbursement bet the principal & the contractor, the RTC has jurisdiction
c) For Other Violations qualified or limited liability; if the liability is for failure
to pay the min wage, or the SIL, or other benefits derived from or provided for
by law, the principal is equally liable w/ the contractor as if the principal were
the direct ER.
BUT, if the liability is invested w/ punitive character, such as an award
for backwages& separation pay because of an illegal dismissal of the
contractors EE, the liability should be solely that of the contractor in
absence of proof that the principal conspired w/ the contractor in the
commission of the illegal dismissal.
Security of Tenure:
a. in cases of termination of ENT prior to the expiration of the contract bet the
principal & the sub/contractor, the R of the contractual EE to separation pay or
other related benefits shall be governed by applicable laws & jurisprudence on
termination of ENT.
b. Where the termination results from expiration of contract bet the principal & the
contractor, or from completion of the phase of the job for w/c the EE is
engagednot entitled to separation pay. however, this shall be w/o prejudice
to completion bonuses or other emoluments, incl retirement pay as may be
provided by law/contract bet the principal & the contractor.
Effect of Nonregistration:
GR: The absence of registration gives rise to the presumption that the contractor is
engaged in LOC,
But, if the contractor directly supervises the workers & imposes disciplinary action, he
qualifies as a legit contractor despite nonregistration w/ DOLE.
Conditions:
1. Formal declaration of insolvency or bankruptcy;
2. General judicial liquidation proceedings of the ERs business; and
3. Filing of claims by workers.