Labor Standards – Midterm Transcript
AY 2013-2014
Labor Standards – Midterm Transcription
(AY 2013-2014)
Atty. Jefferson Marquez
NOTE: Answers presented in the transcript are the direct answers to
the questions of Atty. Marquez from classmates’ answers sa orals,
notes, reviewers and from Atty. Marquez himself. Ako lang gi-short-cut
for easy studying/reviewing. Some questions might be redundant so
bear with me nlng. If you see “X X X” it means nga naa pay sumpay
pero wla lang nko g-include because puno2x lang xa sa katas and some
were not included in the orals.
REMINDER: Atty. Marquez prefers answers in complete sentences.
June 18, 2013
TOPIC 1: THE APPLICABLE LAWS
Q: When is Labor Day?
A (Ivar): May 1 (Every Year)
Q: What law can we find the Labor Code of the Philippines?
(Complete your answer)
A: PD 442
Q: When did PD 442 take effect?
A: Nov. 1, 1974
Q: What is meant by Labor?
A (Ivar): Labor could either be physical toil or application of skill.
Atty’s Discussion:
Labor may also refer to a job, work or service;
Exertion by a human being of his physical or mental effort or both
towards production of goods and services;
May also refer to the working class in society;
Q: What is the end result of the performance of Labor?
A: The production of goods and services.
Q: What is the counterpart of Labor?
A: Capital (labor and capital are not the same)
Q: Does Labor and Capital stand on equal footing?
A (Ivar): They stand on equal footing in Communism, but the
Philippines is a democracy and a capitalist country so they don’t stand
on equal footing.
It is on the part of the Gov’t to institute policies to raise the status of
Labor thru police power to equalize the relationship between Labor
and Capital (L&C).
Atty’s Discussion:
“Capital will never agree to be on equal footing with labor.”
Atty: Do you think it would be possible for the government to equalize
L&C?
Ivar: not perfectly, but the state could give labor a fighting chance.
Ideally labor and capital should be in harmony.
Atty: If we put L&C on equal footing then we don’t need to study Labor
Standards anymore.
Since they don’t stand on equal footing, the Constitution provide for
the protection of Labor and the Labor Code was enacted to primarily
protect labor and not capital.
We study Labor Standards to identify existing laws that extend to the
protection of our workers because of the recognition of the socio-
economic imbalance between L&C.
Page 1
Q: What is the basis for the enactment of Labor Laws? Cite (1)
A: (1) Social Justice – Giving a person his due in the society. If a person
works for a specified number of hours, he should be compensated
accordingly. “Those who have less in life should have more in law –
Ramon Magsaysay”
The law is geared towards the concern of labor because our legislators
realize that social and economic imbalance between the employer and
employee.
Q: Can you think of a law that was enacted by congress on the basis
of Social Justice?
A (Ivar): RA 7610 (Anit-Child Abuse Act) as amended by RA 9231
It sought to regulate the work/employment of children below age 15,
since they do not stand on equal footing with adults. The law protects
the rights of children, they do not exert an equal amount of physical
and mental skill as compared to adults.
Atty: It makes sense! (Tiene Sentido! )
You can also use the “Retirement Pay law” under the Labor Code as a
piece of social legislation that illustrates Social Justice. Retired
employees cannot anymore earn, so they are provided with retirement
pay which they can use during their twilight years.
Q: Give another basis for the enactment of Labor laws.
A (Arfel):
(2) Police Power - Inherent power of the state to enact legislations that
may interfere with personal liberty or property in order to promote the
general welfare of the people. (General Welfare clause)
Example:
Article 263 LC
(g) When, in his opinion, there exists a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the national
interest, the Secretary of Labor and Employment (SOLE) may assume
jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration…
Reason: SOLE may compel the employer to admit the employees and
the employees to return to their work.
Atty’s Discussion:
Art 263 (g): when there is a labor dispute likely to cause of causes a
strike in an industry indispensable to national interest, the SOLE can
assume jurisdiction.
The striking workers are required to return to work whether they like it
or not. As much as they want to exercise their right to strike and self-
organization, it can be interfered. Any interference is Constitutionally
valid under Police Power.
Q: Is Police Power found in the Constitution?
A: there is no specific provision in the Constitution, it is inherent. Police
power is not written in the constitution.
Q: Give a third basis for the enactment of labor laws?
A: (3) Protection to Labor –
Article XIII, Section 3, 1987 Constitution. The State shall afford full
protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment
opportunities for all.
Reason: Employer stands in a higher footing than the employee
because of economic dependence of the employee on the employer
and the greater supply of labor than the demand of it.
Example: Migrant Worker’s Act
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Q: What does the Capital (Employer) have that makes the employee If this were to happen now, we apply labor laws (labor relations) and
economically dependent? the state will intervene in order to protect the public with regards to
A: it has the resources whether financial, physical (building, their obligation to provide education to children.
workplace), ___. Q: Is there any other basis for the enactment of Labor Laws aside
Atty’s Discussion: from Police Power, Social Justice and Protection to Labor?
The Constitution also provides protection to Capital, under the A: (Stephanie)
constitutional clause, “every enterprise has the right to a fair and
reasonable return of their investments” (4) Doctrine of Incorporation –
Note: but protection must be extended more on labor because of
economic dependence.
Article 2, Section 2, 1987 Constitution. - The Philippines renounces war
Labor law only covers Employees. If a person does not fall under the
as an instrument of national policy, adopts the generally accepted
classification of an employee then he/she is covered by the Civil Code
principles of international law (GAPIL) as part of the law of the land
of the Philippines under civil contracts.
and adheres to the policy of peace, equality, justice, freedom,
Q: How does the Civil Code describe the relation between Capital and
cooperation, and amity with all nations.
Labor?
Atty’s Discussion:
Art. 1700, Civil Code. The relations between capital and labor are
not merely contractual. They are so impressed with public interest
The state enters into an international agreement especially in labor
that labor contracts must yield to the common good. Therefore,
laws, those agreements shall form part of the laws of the land.
such contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages,
Example of a law enacted by Congress in accordance with an
working conditions, hours of labor and similar subjects. International Agreement (Stephanie):
(Andrew):
There are 4 parties to an employment contract: RA 7610 Anti-Child abuse law.
1. Employer
2. Employee Protection from Child Labor.
3. State – enacts and enforces labor laws
4. Public Under the anti-child abuse law, it contains the prohibition of
Labor disputes also affect the state and the public at large if employees employment for children below 15 years of age unless under the
are engaged in strike or other concerted activities. supervision of their parents in accordance with the guidelines of DOLE.

Situational Question:
If USC hires teachers and then pays them below the minimum wage Atty’s Discussion:
and provides them oppressive terms and conditions of employment,
who will be the aggrieve party?
(Atty M): Yeah that’s correct.
The teachers will be the aggrieved party and seek grievances with the
proper courts.
Teachers not paid the right wages might exercise their right to self- We have many International Conventions. Aside from that mentioned
organization and form a union. by (Stephanie), also included are the:
(Emphasis on how the state and the public will be affected in an
employment contract) a. International convention on the right to self-organization
(Andrew): b. International convention on the right to collective bargaining
If the teachers are underpaid, they will form a union and the union will
stage a strike. The Philippine Congress enacted the laws that embody those
If the union stages a strike, the operations of the school will be International Agreements; the right to self-organization and the right
affected where the students and the parents will be prejudiced in a to CBA are found black in white under the existing labor laws in the
way where their children will no longer be able to receive proper Philippines.
education.
(Atty. M):
Why are we discussing these topics? (Atty M is referring to the 4 basis
It will prejudice the public. Just imagine if the teachers stage a strike
of enacting labor laws)
and there will be a temporary stoppage of work and the parents
already paid the tuition fees.
It is harmful to the public and must be regulated.
In short, an employment contract is not merely contractual but is
impressed with public interest and must yield to the common good.

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It’s because when you become a Congressman and you want to enact a A: (Grace) Congress cannot enact laws wherein it states that the
labor law, you have to use as basis any/all of these (4) principles: employer can have the unbridled discretion to dismiss an employee
without just cause.
1. Police Power Atty’s Discussion:
2. Social Justice When an employee attempts to kill the employer, you cannot
3. Protection to Labor clause summarily dismiss the employee without due process. No law can be
4. Doctrine of Incorporation passed along that line, otherwise it would be unconstitutional.
You don’t enact a law based on your own personal interest otherwise Q: Other limitations.
you are a bad politician. A: (April)
Q: If you are a Congressman, are you subject to certain limitations in (4) Prohibition Against Involuntary Servitude –
the enactment of labor laws? Article III, Section 18(2). No involuntary servitude in any form shall exist
A (Stephanie): except as a punishment for a crime whereof the
Yes, there are limitations. One of which is the party shall have been duly convicted.
(1) Non-Impairment Clause – (e.g. anti‐trafficking in persons act, forced labor, slavery)
Article III, Section 10. No law impairing the obligation of contracts shall Q: What is meant by Involuntary Servitude?
be passed. A: No person may be compelled to work against his will
Q: Is there any provision in the Revised Penal Code that prohibits
(Example by Stephanie)
Involuntary Servitude?
The company states in the employment contract that they shall
Art. 272. Slavery. The penalty of prision mayor and a fine of not
provide the employee a sack of rice “daily”…monthly. Then congress
exceeding 10,000 pesos shall be imposed upon anyone who shall
would enact a law that companies should not give benefits other than
purchase, sell, kidnap or detain a human being for the purpose of
those mandated by law.
enslaving him.
The employees would be prejudiced by the law because they would be
XXX
deprived of their one sack of rice.
Under the labor code, there is no mandatory one sack of rice.
Art. 274. Services rendered under compulsion in payment of debt.
Atty. M: You can use that logic in the interpretation of the limitation
The penalty of arresto mayor in its maximum period to prision
Q: Is there another limitation to the enactment of labor laws?
correccional in its minimum period shall be imposed upon any person
A: (Grace)
who, in order to require or enforce the payment of a debt, shall
(2) Equal Protection Clause –
compel the debtor to work for him, against his will, as household
Article III, Section 1. No person shall be deprived of life, liberty, or
servant or farm labourer.
property without due process of law, nor shall any person be denied
the equal protection of the laws.
Q: What are the 4 Systems of Labor?
Equality among equals; Individuals similarly situated must be treated
1. Slavery
equally under the law
2. Serfdom
There should be equal opportunities and equal working standards
3. Free Artisan (Independent Contractor)
among the same classification of workers.
4. Wage System
For example, Congress cannot pass a law prohibiting women from Q: Which among the 4 are prohibited under our Constitution?
becoming mechanical engineers. Even though men usually venture into
A: Slavery and Serfdom
this line of work, women should be given the same opportunity.
Q: What is Slavery?
Atty’s Discussion: A: Refers to the extraction of work or services from any person by
We have the Magna carta for women by Pia Cayetano. Under this law, means of enticement, violence, intimidation or threat, use of force or
it provides for equal job/employment opportunities for women.
coercion, including deprivation of freedom, abuse of authority or moral
Pia Cayetano must have read the Labor Code which prohibits women
ascendancy, debt
from working at night. Under the magna carta for woman, congress
bondage or deception. (DO 65--‐04 S2004)
considered the prohibition as discriminatory against women for being
The worker is owned by another at his free disposal.
violatory of the equal protection clause.
Q: What is Serfdom?
Why disallow women and allow men from working at night when
A: Worker, by customary right to his Lord, owes certain service.
women can stand on equal footing with men with regards to night
Enforced labor of serfs on the fields of the landowners, in return for
work. Ex. BPO’s (Call centers) protection and the right to work on their leased fields.
Q: Is there any other limitation, aside from the Equal Protection
While working on the field of another, but the produce does not
Clause?
belong to him but belongs to the land owner.
A: (Grace)
(3) Due Process Clause –
Q: What is the prohibition in the Philippines against Serdom?
(Refer to: Article III, Section 1)
A: Art. 274. Services rendered under compulsion in payment of debt.
The essence of due process is that it gives the employee an
opportunity to be heard.
Q: What can Congress NOT DO, which would otherwise violate Due
Process? Give an example.

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Q: What is the Wage system?
A: A person offers his services to another under an employment
contract for which such service is paid by wages.
The same with modern employer-employee system where there is an
employee under the control and supervision of an employer as to the
means, manner or method of which the work is to be accomplished
including the result thereof and is paid for the work done in terms of
wage.
Atty’s Discussion:
If USC hires me as a teacher and USC fixes my schedule of work and
gives me a specific load. I cannot teach any subject other than Labor
Standards, and I cannot teach at any time that is convenient to me, I
cannot teach anything that is contrary to law.
So there is degree of control.
If the dean wants me to submit a course outline in a prescribed form, I
must follow.
The system of labor that exists between me and the school is the Wage
System.
Q: What is Independent Contractorship (Free Artisan)?
A: There is lesser degree of control. The employer does not have
control over the means, manner, and method of doing the work, he
has control only as to the result thereof.
Ex. If I hire a CPA and I tell the CPA to prepare a financial report and he
must submit it within the week, I only have control over the result.
Q: What are the (2) Chief characteristics of an employee?
1. Economic Dependence - Employee cannot bargain the terms
and conditions of employment.
2. Subordination in Work Relation (Subject to Control) -
Employer exercises control not only the means, manner and
methods but also the results thereof.
*Emphasis on: MEANS and MANNER
Q: In an Independent Contractorship, does the independent
contractor have the liberty to fix the compensation that he wants to
be paid?
A: Yes. The determination of the amount of compensation lies
exclusively with the independent contractor.
There is no economic dependence on the part of the independent
contractor.
Atty’s Discussion:
Ex. If you are a lawyer in the exercise of your profession, you can fix
your compensation at Php 25,000, but of course the client can
negotiate.
Note: A lawyer may also be an employee. If you are employed as a
Dean in USC, then you are paid as a Dean and not as a lawyer. You are
employed as an employee and not as an independent contractor.
Q: Is the Independent Contractor subject to control by the employer?
Give an example.
A: No. Ex. If a lawyer is hired to draft a contract, the client has control
only with the results and not the means and manner.
So there is absence of control in Independent Contractorship
compared to an employee.
Q: Aside from studying the Labor Code, we also mentioned on the
course outline that our studies involve rules and regulations issued
by what Dept? under what power?
Page 4
A: Department of Labor and Employment (DOLE), under their quasi-
legislative power or also known as their RULE MAKING POWER.
[IF MAG MULTIPLE CHOICE SI ATTY, HE WOULD GIVE US CHOICES,
SINCE THERE ARE NO MORE MULTIPLE CHOICE QUESTIONS, HE WILL
BE ASKING US “WHAT POWER DOES THE DOLE EXERCISE?”]
DOLE is expressly concurred with the power to implement rules and
regulations.
Q: What is the purpose of issuing Rules and Regulations when there is
already a law (Labor Code)?
A: DOLE issues rules and regulations to interpret and implement the
law.
Q: Are these rules and regulations considered laws?
A: Rules and regulations have the force and effect of law, provided
they do not expand the law or strip the law. Otherwise, under the rules
on statutory construction, these will be considered void.
If Rules and regulations are intended to interpret the laws then they
are merely advisory.
If they are intended to implement then they have the force and effect
of laws, but not withstanding, they cannot expand and unduly restrict
the scope and effect of the law.
Q: Aside from rules and regulations we also have decisions of the SC,
what can you say about judicial decisions?
A: Art. 8, New Civil Code - Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system of the
Philippines.
(Ericka):
Judicial decisions, also known as jurisprudence can serve as a basis for
interpreting the laws and the manner on how the SC applied the said
law.
They are not laws, but they form part of the legal system.
Q: Being part of the Legal System of the Phil, are the citizens
expected to comply and obey the decisions of the high court?
A: Yes, just like the laws of the land we have respect, obey and comply
with judicial decisions.
Q: Applying it to Labor Standards, do the decisions of the NLRC, Labor
Arbiter, Regional Director form part of the Legal System?
Atty: Ex. If I am underpaid by USC and I sue the school. And there is a
decision by DOLE finding USC guilty of underpayment of wages and it is
found in the decision.
Does that not form part of the legal system such that everyone has to
obey it?
A: (Ericka)
No, these decisions are considered Administrative decisions under
their quasi-judicial function, and do not form part of the legal system;
however the parties involved in the dispute are obliged to follow the
decisions, so in this case, USC has to obey it.
Q: In what instance, if any, does Administrative Decisions form part
of legal system?
A: When that administrative decision is affirmed on appeal by the
Supreme Court, applying Art 8 of the NCC. Until then, it is not part of
the legal system of the Philippines.
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June 25, 2013
TOPIC 2: BASIC PRINCIPLES
Q: What are the (2) aspects of Labor Standards?
A:
1. Meliorative Labor Standards – intended to expand the flow
of income or benefits to the workingman that are required
for a decent living. (E.g. overtime pay, premium pay)
2. Protective Labor Standards – intended to protect harsh and
oppressive conditions of work that inimical to health, safety
and well-being of the workers. (e.g. protect the health safety
and well-being of the workers, prescribed hours of work)
Q: How do we know if a certain contractual relationship is one of
Employer-Employee and not Independent Contractorship?
A: (Jo)
We use the (4) Fold Test: (por-pold test )
1. Selection and engagement of employees;
2. Payment of wages;
3. Power of dismissal;
4. Power of control over employee’s conduct and over the
means and manner by which the work is to be accomplished.
(Most controlling test)
Q: If I go to Ayala to look for a dentist and I see a Dental Clinic with a
dentist and asked him to examine my teeth. The dentist then
examined my teeth and found out that one tooth needs to be
extracted and I agreed. After that, he charged me a fee for his
services.
Applying the (4) Fold test, is there an Employer-Employee
relationship?
A: (Jo) No, even if you engage or hire the services of the dentist, the
patient was not in control of the means and manner of extracting the
tooth. Lacks the element of control; there is control only as to the
results thereof.
Q: Why can’t I control the means and manner of the work of the
dentist?
A: The dentist is an independent contractor.
Employee vs Independent Contractor (IC)
The distinction says that aside from engaging in the business
separately distinct from the principal, the performed job, work, or
services is according to his own means and methods free from the
control and direction of the principal except as to the results thereof.
Q: Among the (4) Fold test, which element is missing in an
Independent Contractorship?
A: No. 4 Control, there is absence of control as to the means and
manner except as to the results thereof.
Q: Does the Labor Code apply to an Independent Contractor?
A: No, the Civil Code applies.
Q: Does an Independent Contractor depend on a particular person for
his income?
A: No. His income depends on the number of patients that he has and
not dependent on one particular person.
Q: If you are an employee, do you perform specialize service?
A: No.
Q: Does a dentist perform a specialize service?
A: Yes, dental services.
Page 5
Q: What is the (2) Tiered Test?
A: (Joanne)
1. The putative employer’s power to control the employee with
respect to the means and manner by which the work is to be
accomplished;
2. The underlying economic realities of the activity or
relationship. (Economic Reality Test)
Q: How to determine that a person is economically dependent?
A:
1. Number of years in the company;
2. Reported to SSS (good indicator of treating him as an
employee;
3. Registered in the patrol;
4. Identification card;
5. Company uniform.
Atty’s Discussion:
The Two-Tiered test is usually applied only when there is doubt
whether the relationship is actually an employer-employee
relationship, or if there is no written employment contract.
If you have a written employment contract then there is no question
that you are an employee.
Q: What are the Chief characteristics of an employee? (A review)
A: (1) Economic Dependence; (2) Subordination in Work Relation.
TOPIC 3: RIGHT TO HIRE
Atty M: Going back to the (4) Fold test, the first one is the “Selection
and Engagement of Employees” or Hiring. This belongs to the
employer.
Q: Is the power of Selection and Engagement an absolute right of the
employer?
A: No, it is a Management Prerogative.
Management Prerogative - It is an act of the employer according to his
own judgment or discretion to regulate his business. This includes
hiring, transfer, dismissal, etc.
Since it is not an absolute right, it is subject to limitations, such as:
a. Laws/Special Laws;
b. Collective Bargaining Agreement (CBA)or the Contract;
c. Principles of equity, fair play and justice.
LEGAL LIMITATIONS/PROHIBITIONS PRIOR TO HIRING
Q: Are there limitations on hiring provided by the Labor Code?
Mention one Article.
A: (Joanne)
Art 139. Minimum Employable Age:
a) No child below fifteen (15) years of age shall be employed, except
when he works directly under the sole responsibility of his parents or
guardian, and his employment does not in any way interfere with his
schooling.
b) Any person between fifteen (15) and eighteen (18) years of age may
be employed for such number of hours and such periods of the day as
determined by the Secretary of Labor and Employment in appropriate
regulations.
c) The foregoing provisions shall in no case allow the employment of a
person below eighteen (18) years of age in an undertaking which is
hazardous or deleterious in nature as determined by the Sec. of Labor.
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Atty’s Situation:
If I am a foreign investor and I would like to consult you of possible
investments in Cebu. I would like to know if there are limitations on my
prerogative to hire Filipinos to work in my establishment.
I would like to hire 15 year old individual because I know that they are
energetic.
Joanne: I would advise you to look into the working conditions of the
workplace, whether or not your establishments are hazardous or non-
hazardous.
Q: Can I hire an individual 15 years old to work in my establishment?
A: it depends, if the establishment is classified as a hazardous
workplace then the establishment is not allowed to hire an individual
15 years old.
Q: Is there a law that prohibits me from employing a person 15 years
of age in a hazardous work place?
A: Yes,
a. Art 139. Minimum Employable Age – Labor Code:
XXX
c. the forgoing provision shall in no case allow the
employment of a person below 18 years of age in an
undertaking which is hazardous or deleterious in nature as
determined by the SOLE.;
Q: Is there a law or existing regulation that classifies a workplace as
hazardous?
A: Department Order No. 004-99:
Sec. 3
XXX
1. Work which exposes children to physical, psychological or
sexual abuse, such as in:
a) lewd shows (stripteasers, burlesque dancers, and
the like)
b) cabarets
c) bars (KTV, karaoke bars)
d) dance halls
e) bath houses and massage clinics
f) escort service
g) gambling halls and places
XXX
DOLE was the one who classified these work places as Hazardous.
In these types of establishments persons under 18 are not allowed to
be employed with or without parental supervision.
This is a Department Order by DOLE pursuant to their rule making
power. Remember that Department Order’s are not laws.
Q: Is it criminal if you employ children below 18 in hazardous work
places?
A: Yes, it is criminal under RA 9231.
RA 9231
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. - No child
shall be engaged in the worst forms of child labor. The phrase "worst
forms of child labor" shall refer to any of the following:
Page 6
"(4) Work which, by its nature or the circumstances in which it is
carried out, is hazardous or likely to be harmful to the health, safety or
morals of children, such that it:
Sec. 16. Penal Provisions
"b) Any person who violates the provision of Section 12-D of this act or
the employer of the subcontractor who employs, or the one who
facilitates the employment of a child in hazardous work, shall suffer
the penalty of a fine of not less than One hundred thousand pesos
(P100,000.00) but not more than One million pesos (P1,000,000.00), or
imprisonment of not less than twelve (12) years and one (1) day to
twenty (20) years, or both such fine and imprisonment at the
discretion of the court.
Q: What kind of child abuse is employing children below 18 qualified?
A: The worst forms of Child Labor.
Sec 12. …….
"(4) Work which, by its nature or the circumstances in which it is
carried out, is hazardous or likely to be harmful to the health, safety
or morals of children, such that it:
"a) Debases, degrades or demeans the intrinsic worth and
dignity of a child as a human being; or
"b) Exposes the child to physical, emotional or sexual abuse,
or is found to be highly stressful psychologically or may
prejudice morals; or
. . . . . . . . . (naa pay sumpay pero gipaundang nan i sir og
enumerate, read the law if you want to see more)
Atty M: that’s enough, DOLE has already classified those instances.
This settles the issue that it is a criminal offense for an employer to
hire children below 18 to work in hazardous environments.
Q: Give another provision in the Labor Code that is a limitation on
hiring.
A: (Connie)
Labor Code:
Art. 136. Prohibition Against Stipulation of Marriage
It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman
employee shall not get married or to stipulate expressly or tacitly
that upon getting married, a woman employee shall be deemed
separated, or to actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely by reason of her
marriage.
The employer cannot require a woman, who applies for a job, to agree
that she should not get married or that getting married is a basis for
termination.
Atty’s Discussion:
If I say, Ms. Jane Doe, I will hire you provided that you do not get
married because I do not like married people. (this is VOID for being a
violation)
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Q: What is wrong with the stipulation of marriage in hiring? or why is
it prohibited?
What will happen to the woman who wants to get married but
cannot because otherwise she would not be employed?
How is married treated under the Constitution and in our laws?
A: (daghan wah katubag)
Atty’s Discussion:
Family Code
Article 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with law
for the establishment of conjugal and family life. It is the foundation
of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject
to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by
this Code.
Atty M’s Situation:
If I am the employer and I tell you, “Ms. Jane Doe, I will hire you
provided that you will not get married.” And you have a boyfriend and
you plan to get married but you really need the job. You then agreed
to the stipulation and you keep yourself free from marriage but still
continue with your relationship with your boyfriend without the
benefit of marriage.
This type of relationship is a “common law” relationship. If you decide
to have a family your children would become illegitimate.
As far as the Catholic Church is concerned, the church does not
tolerate this kind of relationship. This is considered as immoral.
These are the evils sought to be avoided by the prohibition.
Employers don’t like their employees getting married because
eventually they will have children and if you are a woman, having
children means you have to go on maternity leave with pay, and if the
woman undergoes surgery (CS) then she will have an extended 2
month leave with pay. This would result in no one being at work which
is bad for business.
Q: Give a 3rd limitation on hiring employees.
A: (Cemi)
RA 7277
Title 3, Chapter 1
(Magna Carta for Disabled Persons)
Sec 32. Discrimination on Employment. No entity, public or
private, should discriminate against qualified disabled person in
terms of job application procedures, hiring, promotion, discharge,
compensation and other benefits.
An employer is prohibited from discriminating against a qualified
disabled person with regards to hiring by reason of his disability.
Atty’s Situation:
A job applicant comes to me for a job but he only has one arm and the
job available is a messenger.
I say “oh you only have one arm, I will not hire you because you only
have one arm. How can you deliver messages with only one arm.” The
rule is I cannot discriminate on reason of his disability.
But the question is, for a job of a messenger, is a person with only one
arm qualified to be a messenger? Do you think the job of a messenger
Page 7
can be efficiently performed by a person with only one arm?
Hypothetically, how will he knock on the door?!
Is he then qualified? (is he qualified in the sense that he is similar to an
able bodied person if he does the job)
(Russel): No, because he cannot effectively perform his job.
So in this case, you can deny him employment because of his disability.
But if he were a qualified disabled person, for example: his job is to
count the number of people in the establishment, he does not need an
arm to do that, he only needs his eyes.
Q: Another limitation on hiring.
A: (Russel)
Labor Code:
Art. 248. Unfair Labor Practices of Employers
It shall be unlawful for an employer to commit any of the following
unfair labor practice:
(b) To require as a condition of employment that a person or an
employee shall not join a labor organization or shall withdraw from
one to which he belongs.
Situation:
Oh you are applying for a job. Well, I will only hire you provided that
you will not join any union or labor organization. And then you say,
“OK”. This is not valid!
Art 248 prohibits an employer from imposing as a condition for
employment that a person should not join any labor
unions/organizations.
Q: What is so important in joining a Labor Union?
A: Joining a labor union is one of the Constitutional Rights of Workers
to Self Organization. Prohibiting employees from joining unions is what
we call, “unfair labor practices”
Q: Other Limitations: On Sexual Harassment
A: (Russel)
RA 7877 (Anti-Sexual Harassment Act)
An employer is prohibited from asking sexual favours as a condition for
employment.
Situation: I will hire you, but we must have sex first.
The gravamen of sexual harassment is the abuse of power.
Q: Other Limitations Prior to Hiring:
A:
RA 8791 (Gen. Banking Laws of 2000)
Sec. 55.4 No bank shall employ casual or non‐regular personnel or too
lengthy probationary personnel in the conduct of its business involving
deposits.
Q: What is the reason behind the Gen. Banking law?
A: For casual employees, they do not enjoy security of tenure since
they can be terminated whenever the bank wants. Hiring casual
employees for too lengthy a time compromises the bank and threatens
national security because banks are essential to the economy.
(to be continued below)
(July 2, 2013)
… Continued from last meeting
(Jorj) Casual employees do not enjoy security of tenure compared to
regular employees.
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With lengthy casual employment handling bank deposits there is a
threat to Bank Secrecy where leakage of information is highly possible.
Ex. There is leakage of account information as to the Billions of pesos
you have in your account; consequently this may make you prone to
kidnapping, etc.
Atty’s Discussion:
Non-regular employees come and go. When they go they sometimes
carry with them account informations. So in order to prevent this from
happening, this guarantees outmost bank secrecy in the accounts of
the depositors. The law does not say that this will happen, but just in
order to prevent this from happening, there is such a prohibition.
If there is no Bank Secrecy then people will not deposit their money in
banks.
When money is deposited in the bank, some people loan money from
the bank to establish businesses. If there are no more people
depositing in banks because of lack of Bank Secrecy then the bank
cannot extend loans. If they cannot extend loans then there will be no
businesses, if there are no businesses then it would not be good for
the economy.
So we have to maintain or Bank Secrecy laws, and one way of
removing those threats is to prohibit lengthy probationary period for
casual employees.
I’m not saying that banks cannot hire casual employees. Only that they
cannot handle bank deposits.
Q: Any other restrictions: HIV/AIDS
A: (Jorj)
RA 8504
(Philippine AIDS Prevention and Control Act of 1998)
Sec. 35. Discrimination in the Workplace --‐ Discrimination in any
from pre--‐employment to post--‐employment, including hiring,
promotion or assignment, based on the actual, perceived or
suspected HIV status of an individual is prohibited. Termination from
work on the sole basis of actual, perceived or suspected HIV status is
deemed unlawful.
Situation: An applicant approaches you for a job and he has HIV/AIDS.
The job available is an Accountant. You say, “I will not hire you because
you have HIV/AIDS.” (This is illegal)
Q: Why is such discrimination prohibited?
A: (Jorj) because mere acquisition of HIV does not hinder the
performance of ones work.
HIV/AIDS is transmitted thru sharing of needles, sex, etc. Being an
accountant does not involve any of these.
Q: Any other Special law on limitations on hiring?
RA 10354
(Responsible Parenthood and Reproductive Health Act)
SEC. 23. Prohibited Acts. – The following acts are prohibited:
XXX
(c) Any employer who shall suggest, require, unduly influence or
cause any applicant for employment or an employee to submit
himself/herself to sterilization, use any modern methods of family
planning, or not use such methods as a condition for employment,
continued employment, promotion or the provision of employment
benefits. Further, pregnancy or the number of children shall not be a
ground for non-hiring or termination from employment;
Page 8
The employer is prohibited from stipulating, requiring, influencing any
applicant to subject himself/herself to sterilization or to use or not to
use modern methods of family planning as condition for employment.
Discrimination on the number of children is also illegal.
Family planning is every individual’s choice, whether he is a job
applicant or not.
TOPIC 4: WAGE and WAGE FIXING
Now that we know that hiring is a prerogative of the employer, and
now that we know that there are limitations under the Labor Code
and Special Laws as regards to the prerogative of the employer to
hire an employee. And we might as well proceed to hire one.
Q: What is meant by an employee and what is meant by an
employer?
A: (Mike)
Employer – includes any person directly or indirectly in the interest of
an employer in relation to an employee and shall include the
Government and all its branches, subdivision and instrumentalities, all
government‐owned or controlled corporations and institutions, as well
as non-profit private institutions, or organizations. (Art 97b, Labor
Code)
The employer has control over the employee.
Employee – includes any individual employed by an employer. (Art
97c, Labor Code)
Q: What is the 2nd in the Four Fold Test?
A: Payment of Wages.
Q: What is meant by wage?
A: (Mike) Compensation for manual labor given to an employee by the
employer.
Labor Code
Art. 97.6 "Wage" paid to any employee shall mean the
remuneration or earnings, however designated, capable of
being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or
other method of calculating the same, which is payable by an
employer to an employee under a written or unwritten
contract of employment for work done or to be done, or for
services rendered or to be rendered and includes the fair and
reasonable value, as determined by the Secretary of Labor and
Employment, of board, lodging, or other facilities customarily
furnished by the employer to the employee. "Fair and
reasonable value" shall not include any profit to the employer,
or to any person affiliated with the employer.
Atty’s Discussion:
There are (2) components in wages:
1. cash (remuneration of earnings); and
2. fair and reasonable value of the facilities.
If you look at the definition under Art 97, it does not only include
payment of services rendered in cash or in legal tender, but also in kind
in the form of facilities.
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Q: Is Wage the same as Salary? Why?
A: As so far as the Labor Code of the Philippines is concerned, Wage
and Salary mean the same and can be used interchangeably.
The distinction is purely semantics according to the Supreme Court
(CASE: Equitable Bank vs Sadac).
Q: In what instance is it important to know the distinction between
Wage and Salary?
A: (Mike) under Art 1708, Civil Code
Civil Code
Art. 1708. The laborer’s wage shall not be subject to execution or
attachment, except for debts incurred for food, shelter, clothing and
medical attendance.
Q: Who incurs the debt?
A: the labourer. Food, shelter, etc are basic necessities of the labourer.
Atty’s Discussion:
The worker works and earns his wage. Sometimes his wage is not that
much and it may happen that he might need food, clothing, medical
attendance.
If you read the law, for debts incurred by the labourer, his wages shall
be exempt from execution or attachment. In other words, if he obtains
a debt and the creditor sues him and obtains a judgement, that
judgement is usually enforced by the creditor by garnishing his
property by executing on his property for satisfying the judgement.
If you buy food from me on credit basis then I am your creditor and
you have to pay me. Sometimes you cannot pay, so what the creditor
does is he goes to court and files a collection of a sum of money. You
cannot deny that you owe me, so there will be a judgement against
you.
The court will ask you ex. Judge Seville will ask you to satisfy the
judgement but you have no money. But then I see that you have other
properties, so I tell the sheriff to execute the judgement by running
after your properties. (so that is attachment)
Q: What does this situation tell us? How does the law protect the
labourer?
A: (Mike) the law protects the labourer by exempting his wages from
attachment or execution.
Atty’s Discussion:
Remember that a labourer has to work to earn his wage (unless
syndicato yan). That wage is the product of hard labor/hard work.
And then here comes the employer/creditor. Imagine without the
protection, you owe the creditor Php 5,000 and your daily wage is just
Php 300. The sheriff will get his wage, and if there is no more wage
then the labourer cannot meet his basic necessities and his children
will starve to death.
Q: So what is the distinction between salary and wage in relation to
ART 1708?
A: (Mike) it is stated in the provision that the laborer’s wage is exempt
from execution or attachment, HOWEVER, the laborer’s salary is NOT
EXEMPT from execution or attachment.
Q: What did the SC say about the distinction between Wage and
Salary?
A: (Mike)
Wage – applies to compensation for manual labor, skilled or unskilled,
paid at stated times, and measured by the day, week, month, or
season; indicates inconsiderable pay for a lower and less responsible
character of employment. (Blue Collar Jobs)
Page 9
Salary – denotes a higher degree of employment or a superior grade of
services, and implies a position or office; suggestive of a larger and
more permanent or fixed compensation for more important service.
(White Collar Jobs)
Atty’s Discussion:
Exemption applies to WAGE only.
Exemption does NOT APPLY to SALARY.
The compensation for salary is much higher than that of wage. The
protection is extended as so far as labourers are concerned and as so
far as wages are concerned. The protection does not extend to
employees receiving salary.
Q: Do workers need to be remunerated for services rendered?
A: (Mike) Yes, their remuneration comes in the form of wage or salary.
Q: Who fixes the employees wage or salary?
A: The employer, it is his prerogative.
Q: Is there a limitation provided by law for the fixing of the
employee’s salary?
A: Yes, there is s prescribed statutory minimum wage under the labor
code. The employer cannot pay his workers below the prescribed
minimum wage.
Q: Who fixes the minimum wage? And under what law?
A: Regional Tripartite Wages and Productivity Boards (RTWPB), under
the Wage Rationalization Act (RA 6727)
Q: Under the Wage Rationalization Act, which (2) Principal
Government Agencies are involved in the fixing of the minimum
wage?
A: (1) National Wages and Productivity Commission; (2) Regional
Tripartite Wages and Productivity Boards
Q: What is the composition of the RTWPB?
A: (RC)
Art 122 LC (As amended by Republic Act No. 6727, June 9, 1989).
1. Chairman – Regional Director of DOLE;
2. (2) Vice-Chairman - Regional Director of NEDA & Regional
Director of DTI;
3. (2) members each from workers and employers sectors –
appointed by the President upon recommendation of the
SOLE, to be made on the basis of the list of nominees
submitted by the workers and employers sectors,
respectively.
Q: According to Wage Order in Region 7, Wage order # RO7-17. In so
far as the cities of Mandaue, Lapu-lapu and Cebu (which sir is only
concerned of), how much is the minimum wage for Non-Agricultural
employees only?
A: Non-Agricultural Employees in Mandaue, Lapu2x and Cebu – Php
327 per day
Atty’s Nice to Know:
Notice the representative of the private sector in the wage order, Atty.
Pascual – a former faculty member of USC-Law.
Q: What is the composition of the NWPC?
A: (RC)
Art 121 LC (As amended by Republic Act No. 6727, June 9, 1989).
1. Ex-officio Chairman – Secretary of DOLE;
2. Ex-officio Vice-Chairman – Director General of NEDA;
3. (2) members each from Worker and Employer Sectors –
appointed by the President upon recommendation of the
SOLE, to be made on the basis of the list of nominees
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submitted by the workers and employers sectors,
respectively.
Atty’s Discussion:
Notice that there’s always a trilateral arrangement in both
compositions of the NWPC & RTWPB; (1) Government, (2)
Employer/Private Sector, & (3) Labor/Public Sector.
Moving on.
The RTWPB has 2 Principal Powers; (1) power to fix the minimum
wage; (2) power to grant exemptions from the minimum wage.
Q: (1) Power to fix the minimum wage: Do we have an existing rules
of procedure on minimum wage fixing? And what agency of
government promulgated these rules?
A: (RC) Yes, NWPC promulgated the rules of procedure. The NWPC is
higher than the RTWPB and has the power to promulgate rules and
regulations.
Atty’s Discussion:
Notice under the rules, the board may Motu Proprio or upon
application of the proper party fix the minimum wage.
RULE II: Minimum Wage Fixing
Section 3. Procedures in Minimum Wage Fixing.
(a) Motu Proprio by the Board;
XXX
(b) By virtue of a Petition filed;
XXX
Q: Who is considered a proper party to file an application for
minimum wage fixing?
A: (RC) there are 2 proper parties, (1) Employees Sector; (2)
Workers/Labor Sector – can only be filed thru a legitimate and
registered Labor Union/Organization.
Atty’s Discussion:
Usually the labor sector files the application thru their labor unions. In
Region 7, the most prominent labor union is the ALU-TUCP.
Simplified Procedure for filing an application for minimum wage
fixing by Atty. Marquez
Interested parties shall file an application with the board.
The board under the rules of procedure will publish the petition once
in a newspaper of general circulation. In the publication, the board will
also set the date of hearing.
It must be held thru a Public Hearing because it involves the public
when either there is a wage increase or no increase.
Here in Cebu, the hearing is done in the Capitol where interested
parties may appear and participate therein. Oppositors may also
participate and oppose the petition for wage increase.
Not just anybody can attend the hearing; you must be an interested
party or a representative of the parties.
The public hearing will be presided by the board and all the members
should be there and they will hear the petitioner as well as the
oppositionists and at the end of the day, the board will deliberate and
try to decide whether to grant the petition or deny it.
Q: What are standards/criteria that needs to be considered in fixing
the minimum wage?
A: (RC)
RULE II: Minimum Wage Fixing
Section 2. Standards/Criteria for Minimum Wage Fixing.
The minimum wage rates to be established by the Board shall be as
nearly adequate as is economically feasible to maintain the
Page 10
minimum standards of living necessary for the health, efficiency and
general well-being of the workers within the framework of national
economic and social development goals.
XXX
This data can be made available to the board thru the respective
representatives of the DTI and NEDA. That’s why they are members of
the board.
Q: What are the factors considered in the employer’s side?
A: A wage that is too high and not affordable, the employer might lose
all their money. The board must consider the fair and reasonable
return of investments of the employers.
When employers don’t gain profit then they may close their business.
These criteria must be weighed by the board and consider these
factors to maintain balance between employer and employee.
If the application is granted then the board issues a “Wage Order”
Q: How is the wage order defined under the Labor Code?
A: (n) Wage Order - refers to the Order promulgated by the Board
pursuant to its wage fixing authority.
Wage orders become effective (15) days after publication in a
newspaper of general circulation. If it becomes effective then the
employer must follow it.
Q: If the labor Organization is not happy with the Wage Order
because it wanted Php20 increase, but instead they got Php10
increase, can they file another petition for a wage increase?
A: No, the wage order cannot be disturbed within 12 months from the
date of effectively of the wage order.
However, exemption is when there are supervening events such as
increased prices of basic commodities, high prices of oil. In these cases,
the board will allow a petition for wage increase.
Atty’s Discussion:
For example: the board already issued a wage order and after one
month there was a war in the middle-east and oil prices went up
making basic commodities very expensive. The board would not wait
for one year for another increase to entertain a petition or the board
itself can Motu Prorio decide on a wage increase.
If the exemption does not apply then the 12 month prohibition
governs.
Imagine, if there is no prohibition, the board would always be very
busy entertaining petitions every day and the employers would not be
able to maintain an increase in minimum wage every month.
Q: What are the Advantages and Disadvantages of Minimum Wage?
Advantages:
1. Protects the fair employers against competition from
“unfair” ones;
2. The law acts as an incentive to the low-wage employers to
improve methods in their plants and possibly to introduce
technological changes to conform to the demand of
minimum wage rate;
3. Promotes workers living standards;
4. A national minimum wage is an index to economic stability;
minimum wage lend help to provide the purchasing power
necessary to take all the goods of the market;
5. Promotes industrial peace and order in the sense that
dissatisfactions are reduced, increases the morale of the
employee;
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6. May be subject to increase at collective bargaining table;
7. Reduces the evils of the “sweating system” –exploitation of
workers at wages so low as to be insufficient to meet the
bare cost of living.
Disadvantages:
1. May lead to unemployment;
2. It would pauperize the worker, destroy their self-respect and
make them miserable;
3. Brings depression and thus impoverish the nation;
4. Constitutes infringement to the worker’s right to labor as he
could not dispose of the same under terms and conditions he
may see fit;
5. Will tend to be the maximum, employers will tend not to
increase the salary and stick to the minimum wage;
6. It causes wage distortion.
Q: If there is a Wage Order issued, and the petitioner is not happy.
Does the aggrieved party have a remedy from a Wage Order?
A: (RL) they can appeal to the NWPC.
Q: On what grounds?
A: (RL)
a. Non-conformity with the prescribed guidelines and/or
procedures on exemption;
b. Prima facie evidence of grave abuse of discretion;
c. Questions of law.
Q: What is the reglementary period for appeal?
A: (RL) not later than 10 days from the publication of the wage order.
Atty’s Discussion:
So now the NWPC will study the appeal to find out if the wage order
was issued right or wrong.
If they find out that the board committed an error in issuing the wage
order then they will set aside the order.
But if there is nothing wrong with the order then they will just simply
affirm the wage order.
Q: If an employer appeals the Wage Order, does it stop the
implementation of the order?
A: (RL) No, the order will still be implemented.
Q: Is there an exception where an appeal made by the employer can
stop temporarily the implementation of the wage order?
A: Yes, if the employer posts a bond equivalent to the prescribed wage
rate multiplied by the number of employees.
Atty’s Discussion:
The bond should be enough to cover the wage of the workers in case
the order is affirmed as valid. So at least if the bond is there and the
employer loses in the appeal, the government can use the bond to pay
his workers. This is to prevent the employer from delay of payment to
the employees.
So from the appeal, it stops from the NWPC which would have to make
the order final and executory.
Q: Is there a remedy from the NWPC in case they commit grave abuse
of discretion or non-conformity with guidelines or etc?
A: An appeal can be made to the Court of Appeals.
SPECIAL CIVIL ACTIONS
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Page 11
SECTION 1. Petition for certiorari. When any tribunal, board or
officer exercising judicial or quasi--‐judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require. The petition shall be accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non--‐forum shopping
as provided in the third paragraph of section 3, Rule 46. (1a)
If further remedy is required, it shall be forwarded to the Supreme
Court.
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
SECTION 1. Filing of petition with Supreme Court. A party desiring
to appeal by certiorari from a judgment, final order or resolution of
the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals,
the Regional Trial Court or other courts whenever authorized by law,
may file with the Supreme Court a verified petition for review on
certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall raise
only questions of law which must be distinctly set forth. The
petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its
pendency. (as amended by A.M. 07-7-12-SC)
So now, another power of the board is to (2) Grant Exemptions.
Q: What establishments are eligible to apply for exemption from the
wage order?
REVISED GUIDELINES ON EXEMPTION FROM WAGE ORDERS
(NWPC GUIDELINES NO.01, SERIES OF 1996)
Section 2, NWPC Guidelines No. 01, Series of 1996:
1. Distressed establishments;
2. New business enterprises (NBEs);
3. Retail/Service establishments employing not more than ten
(10) workers;
4. Establishments adversely affected by natural calamities.
Q: Is there a person, employer or establishment exempted from the
wage order by operation of law? (this means he did not apply for
exemption)
A: (RL)
Labor Code
Art 98. Application of Title. This title [Wages] shall not apply to farm
tenancy or leasehold, domestic service and persons working in their
respective homes in needle work or in any cottage industry duly
registered in accordance with law.
Exempted:
1. Farm tenancy or leasehold;
2. Domestic service;
3. Persons working in their respective homes in needle work
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4. Persons working in any cottage industry duly registered in
accordance with law.
You do not need to pay them Php327 a day. House helpers or domestic
helpers are provided a minimum wage under the “Kasambahay Law.”
Q: If you apply for exemption, what agency of gov’t has the power to
process and approve the exemption?
A: (RL) RTWPB
Q: In case the board denies it, what are the remedies?
A: Appeal to the NWPC. (Same procedure as before)
Atty’s Situation: So right now we have Wage Order RO7-17 setting
the minimum wage to Php327.
I have an establishment and I have an organizational setup composed
of rank and file employees, supervisors and managers. I pay my rank
and file minimum wage (327), I pay my supervisors 500/day and I pay
my managers 1000/day.
Let’s say 2 weeks from now there is a new wage order fixing the
minimum wage to Php500/day.
Is there Wage Distortion?
A: There is a wage distortion between rank and file employees and
supervisors, both receiving 500/day. The supervisor is the aggrieved
party in this situation.
Q: What is “Wage Distortion”?
A:
ART. 124. Standards/Criteria for minimum wage fixing.
XXX As used herein, a Wage Distortion shall mean a situation where
an increase in prescribed wage rates results in the elimination or
severe contraction of intentional quantitative differences in wage or
salary rates between and among employee groups in an
establishment as to effectively obliterate the distinctions embodied
in such wage structure based on skills, length of service, or other
logical bases of differentiation. XXX (As amended by Republic Act
No. 6727, June 9, 1989).
Q: What are the (4) Elements of Wage Distortion enumerated by SC?
A: Elements of Wage Distortion:
1. An existing hierarchy of positions with corresponding salary
rates.
2. A significant change in the salary rate of a lower pay class
without a concomitant increase in the salary rate of a higher
one.
3. Elimination of the distinction between the two levels.
4. Existence of the distortion in the same region of the country.
Q: Are all elements in the above situation present?
A: Yes, (1) There is a hierarchy of positions, rank and file, supervisors &
managers with salary rates 327, 500 & 1000 respectively; (2) there is a
significant change in the salary of the rank and file employees with an
increase to Php500/day and no increase in the salary of the
supervisors; (3) the distinction between the rank and file and the
supervisors are eliminated because both are receiving the same salary
of Php500; (4) –the 4th element is not so clear in the situation.
In the situation, the supervisors are the aggrieved parties because they
cannot allow the rank and file employees to be receiving the same
salary as them.
Q: If there exist a wage distortion, does the law provide a solution?
A: Yes, the law provides Methods of Resolving Wage Distortion which
would depend on whether the establishment is an Organized or an
Unorganized Establishment.
Q: When is an establishment considered Unorganized?
Page 12
A: The establishment is considered unorganized if there is no certified
or recognized bargaining union or CBA.
(July 9, 2013)
… Continued from last meeting
Q: What solution is provided by law for Wage Distortion in an
Organized Establishments? The Step by step procedure.
A:
Step 1: The union and the employer will try to resolve the issue among
themselves.
Step 2: If the parties will not be able to resolve the issue by
themselves, then they will refer it to the “Grievance Machinery” and
procedure incorporated under their CBA.
Grievance Machinery and Procedure – provides for a step by step
procedure under their CBA where disputes are to be resolved by the
parties.
Example of a Grievance Machinery: first they will submit the issue to
the first-level manager; second submit to the middle-level managers;
and finally to the top-level managers.
Step 3: If all steps are exhausted under the Grievance Machinery and
the dispute still remains unsettled, the parties will then refer the
matter to “Voluntary Arbitration.”
Voluntary Arbitration here refers to a voluntary arbitrator as defined
by Art 260, 261, 262 & 263 of the Labor Code.
Q: Differentiate Voluntary Arbitration with Compulsory Arbitration.
A: Voluntary Arbitration – is not compulsory (duh!); a contractual
proceeding whereby the parties to any dispute or controversy in order
to obtain a speedy and inexpensive final disposition of the matter,
select a judge of their own choice and by consent, submit their
controversy to him for determination;
They will be given a list of voluntary arbitrators from which they will
pick out those which they have chosen to be the arbitrators.
The labor arbiter in voluntary arbitration is chosen by the parties.
Compulsory Arbitration – (jurisdiction of the labor arbiter is under Art
217 of the Labor Code.)
Process of settlement of labor disputes by a government agency (or by
other means provided by the government) which has the authority to
investigate and to make award which is binding on all the parties.
The labor arbiter in compulsory arbitration is chosen by the state.
Step 4: If a decision is rendered by the Voluntary Arbitrator and one of
the parties is not satisfied with the decision, the remedy is to file a
Petition for Review to CA under Rule 43, Rules of Court, within 15 days
from notice of the award, judgement, final order or resolution. (no
appeal shall be brought to the NLRC in this stage, remedy is rule 43)
Step 5: If still unresolved, Appeal by Certiorari to the Supreme Court
under Rule 45, Rules of Court.
(Atty M: we will not discuss these steps in detail because this will be
covered under Remedial Law.)
[Atty. Marquez forgot to ask about the steps in resolving wage
distortion in Unorganized Establishments]
Step 1: The employer and the employees will try to resolve the issue
among themselves.
Step 2: There are (2) Possible Scenarios:
Either they will:
1. Refer to Voluntary arbitration (the same steps ang e-
follow parehas sa organized est.)
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2. Conciliation under the NCMB (since mana man tas
Scenario#1, focus tah ani sa Scenario#2)
NCMB – National Conciliation and Mediation Board
NCMB will try to settle the dispute through amicable settlement. The
NCMB can forward the case to Voluntary Arbitration or refer the
matter to NLRC for Compulsory Arbitration.
Step 3: If no settlement is arrived, the dispute shall be brought to the
appropriate branch of the NLRC for Compulsory Arbitration.
Step 4: If the parties are not satisfied, they can Appeal to the NLRC.
Step 5: If unresolved, Petition for Certiorari with CA under Rule 65,
Rules of Court.
Step 6: If still unresolved, Petition for Certiorari with SC under Rule 45,
Rules of Court.
TOPIC 6: WAGE ENFORCEMENT & RECOVERY
(Ni skip si Atty. M sa Topic 5, basa lang gihapon gamay)
Q: What are the (2) Enforcement Tools under our Labor Code which
the government can use for the recovery of wages?
A: (Tara) Enforcement Tools:
1. Art 128. Visitorial and Enforcemnet Power of the Secretary
of Labor or his duly authorized representative.
2. Art 129. Recovery of wages, Simple money claims and other
benefits.
Q: What are the (4) Requisites for the Regional Director of DOLE to
exercise jurisdiction under Art 129?
A: (Tara) Requisites: (Remember this!)
1. The claimant is an employee, household/domestic worker;
2. The claim arises from employer-employee relationship (may
involve non-payment/underpayment of wages; non-
payment/underpayment of overtime pay; non-
payment/underpayment of holiday pay, etc);
3. The claimant who is no longer employed does not seek
reinstatement;
4. The claim does not exceed Php 5,000.
Atty’s Situation:
If you have a domestic worker and you are paying her 3,000/month. In
one instance, you did not pay her salary and then she left you. Of
course she cannot forget the 3,000 salary you owe her, so she filed a
complaint (simple money claim) with the Regional Dir of DOLE and sue
you and ask for the recovery of the 3,000.
Taken from the situation:
1. The claimant is a domestic helper (employee);
2. The claim is only 3,000 (did not exceed 5,000);
3. The claim arose from employer-employee rel.;
4. The claimant, who is no longer employed, does not want to
be reinstated.
So the Regional Director (RD) will try, hear and resolve, and he will
determine if the claimant is entitled to his/her unpaid salary.
If RD will say yes, then he will make a decision in favour of the
claimant; If RD will say no, he will dismiss the complaint.
Q: If there is a decision rendered by the RD under Art 129, what is the
remedy of the aggrieved party?
A: (Marvin) They can file an Appeal (not a motion for reconsideration)
under Art 223 of the Labor Code, with the National Labor Relations
Page 13
Commission (NLRC) within 5 days from the receipt of the copy of the
decision.
Q: Since the judgement contains a monetary award, what are the
requirements to perfect the appeal?
A: (Marvin) In case of a judgment involving a monetary award, an
appeal by the employer may be perfected only upon the posting of a
cash or surety bond issued by a reputable bonding company duly
accredited by the Commission in the amount equivalent to the
monetary award in the judgment appealed from, excluding damages
from Attorney’s fees. (Art 223)
From the decision of the NLRC, an appeal can be made to the CA in
the form of a Special Civil action under Rule 65, Rules of Court. (Note:
Not an ordinary Appeal!)
After CA, there’s no other way to appeal than to the SC under Rule 45,
Rules of Court.
Q: What is Art 128 of the Labor Code?
A: (JP)
Article 128. Visitorial and enforcement power.
The Secretary of Labor and Employment or his duly authorized
representatives, including labor regulation officers, shall have access
to employer’s records and premises at any time of the day or night
whenever work is being undertaken therein, and the right to copy
therefrom, to question any employee and investigate any fact,
condition or matter which may be necessary to determine violations
or which may aid in the enforcement of this Code and of any labor
law, wage order or rules and regulations issued pursuant thereto.
The SOLE or his duly authorized representatives can visit the
establishment when regular work is being undertaken.
Purpose: to determine if there are any violations of the Labor Code,
any labor law, wage orders or rules and regulations issued by the SOLE
pursuant thereto.
Q: The law speaks of Visitorial and Enforcement. Are they both the
same?
A: (JP) No.
Visitorial – this is when the SOLE or his duly authorized representative
has access to the employers records and premises at any time.
Enforcement – this is when the SOLE or his rep will ask the employer to
comply with the findings or violations the employer may have incurred.
Ex. If the employer did not comply with the minimum wage order, the
SOLE or his rep will issue a compliance order to the employer to pay
the underpaid wages.
Atty’s Discussion:
The visitorial power would not be effective without the enforcement.
That’s why it’s called “Visitorial &Enforcement Power.”
Take Note: Since the SOLE is only one, he would not have time to
inspect 1000+ establishments all over the country. In the Philippines,
the DOLE has established Regional Offices nationwide; we also have an
office in Cebu City. In these Regional Offices they have a “Labor
Standard and Enforcement Division” (LSED), this is where we find the
Labor Inspectors, because the Regional Director cannot also do the
inspection himself, although he can do it, but he can also delegate the
power to the Labor Inspectors.
So the SOLE delegates the power to the Regional Director (RD); The RD
delegates the power to the Labor Insp. So the Labor Inspector in most
cases would be the authorized rep of the SOLE and the RD, to inspect
the establishments.
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These labor inspectors are Civil Service employees (Gov’t Employees),
they will visit the establishments and present an ID and an “Inspection
Authority”, signed by the RD. The Inspection Authority will tell you the
name of the establishment and the date of inspection; it writes down
the parameters of the inspection.
By virtue of ART 128, they have access to the premises and the
employer’s records with the power to Copy the records, at any time of
the day or night. (Some establishments are open at night, ex. Bars,
BPO’s)
Visitorial & Enforcement must be done during working hours. If the
establishment is closed, who will show them the records, the Security
Guard!?? Of course Not!
Q: So there is access to employment records. What is a good example
of an employment record for the inspector to know whether the
employer complied with the law or not?
A: (JP)
(1) Payroll;
IRR Labor Code, Book III, Chapter X:
Section 6. Payrolls. — (a) Every employer shall pay his employees
by means of a payroll wherein the following information and data
shall be individually shown:
1. Length of time to be paid;
2. The rate of pay per month, week, day or hour piece, etc.;
3. The amount due for regular work;
4. The amount due for overtime work;
5. Deductions made from the wages of the employees; and
6. Amount actually paid.
XXX
The law requires an employer to keep and maintain a payroll.
If the labor inspector looks at the payroll and there is a discrepancy, it
is a reliable proof to make a finding that there was a violation.
Ex. If there were deductions not authorized by law then the inspector
can put it in his findings and he may order the employer to comply.
(2) Employment Contracts of the workers;
(3) Service Agreements (ex. Security Agency, Janitors).
All these employee records under the law, must be kept and
maintained by the employer in the Main Office of the company or
Branch Office or the worksite where the employees are regularly
assigned to work.
So if you go to an office and there are Security Guards and Janitors
there who are not employees in the establishment, the law requires
that your agreement (Service Agreement) with them, must be kept and
maintained in the place where they are working or where they are
regularly assigned.
Q: ART 128 says that, the Visitorial & Enforcement power may be
exercised by the SOLE or his rep as long as an Employee-Employer
relationship still exists. (when you are no longer employed, the
employer may no longer keep your employment records)
When can we say that an employee is no longer employed in an
establishment?
A: (JP) His employment ends thru:
1. Expiration of Contract;
2. Termination;
3. Resignation.
Page 14
In these cases, the SOLE can no longer exercise visitorial &
enforcement powers because ART 128 par. 2 clearly states “in cases
where the relationship of employer-employee STILL EXISTS.. XXX”
Take Note: Here, the SOLE no longer has jurisdiction, but in cases
where violations are found, he will not proceed with the enforcement
but he will have to refer the matter to the appropriate branch of the
NLRC.
Atty’s Discussion:
Another instance where there is no more employer-employee
relationship is when in the first place no such relationship ever
existed, applying the (4) Fold Test.
Q: Assuming the Employer-Employee relationship still exists. In what
piece of document will the labor inspector appropriate his findings?
A: (Jefferson) It will be embodied in the “Notice of Inspection Result”.
So he bases his inspection on the employee records and interviews the
employees at random and in private (does not interview the
employer), at the end of the day after the inspection, he will have to
confront the employer and say ex. “Mr. Employer, you have not
complied with #1 Minimum wage… #2.. and so on….”
After that, the Notice of Inspection Result will be placed in a
conspicuous place (ex. Entrance) for the employees to see and read for
them to know the findings of the inspection.
A copy of the Notice will be given to the employer and the employer
will be given (5) days to raise any questions or concern over the
findings.
If he does not raise any questions, the Regional Director will issue a
“Compliance Order” or “Order of Compliance”, directing the employer
to comply with the violations.
Q: In case the employer does not agree with the findings of the
Notice of Inspection Result, what is his remedy?
(JEPPERSON!!!!) [we have the same name eh, na-mental block siya so I
had to startle him.. ]
A: The employer will contest the notice, under ART 128 Par. (b).
Art 128, (b)
XXX except in cases where the employer contests the findings
of the labor employment and enforcement officer and raises
issues supported by documentary proofs which were not
considered in the course of inspection.
Note: The remedy of the employer is to present other documentary
proof not considered or not inspected.
Testimonial proof is NOT considered.
Q: If the employer contests the Notice of Inspection Result but not in
the manner prescribed by law. What will the Regional Director do?
A: (Jefferson) The RD will still issue a Compliance Order.
Q: If a compliance order is issued by the RD, ordering the employer to
comply. What is a remedy from an Order of Compliance?
A: (Karen) Appeal to the SOLE.
Art 128, Par. (c)
An order issued by the duly authorized representative of the
Secretary of Labor and Employment under this Article may be
appealed to the latter. In case said order involves a monetary
award, an appeal by the employer may be perfected only upon
the posting of a cash or surety bond issued by a reputable
bonding company duly accredited by the Secretary of Labor
and Employment in the amount equivalent to the monetary
award in the order appealed from.
The rules allow the employer to file a Motion for Reconsideration, not
later than (7) days from receipt of the order of compliance. If he files a
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Motion for Recon after (7) days but not later than (10) days then it
shall be considered as an Appeal to the SOLE.
For our purposes, the remedy is Appeal to SOLE.
Q: If the judgement contains a monetary award, does the employer
need to post a bond?
A: (Karen) Yes, he needs to post a cash or security bond. The purpose is
to secure the judgement in case the appeal is found to be
unmeritorious; it will guarantee the workers, in whose favour the
findings were made, to get their money to prevent delay in payment.
Q: From the decision of the SOLE, is there a remedy for an Ordinary
Appeal?
A: (Karen) There is none. It is appealed thru a Special Civil Action to the
CA under Rule 65, Rules of Court.
And of course after the CA, there is no other way of appeal than to the
SC under Rule 45, Rules of Court.
Atty’s Discussion:
Not all inspections are complaint inspections. Some inspections are
routine inspections which are scheduled in advance. There is also an
Accident Investigation.
The visitorial & enforcement power of the Labor Inspector is not just
limited to compliance of the Labor Code, it also includes Occupational
Safety and Health standards (ex. fire exits, etc).
There’s also the Imminent Danger Inspection. (ex. the building in USC is
about to collapse)
Q: In Art 128, is it valid for the RD, who finds a violation of labor
standards, to issue a compliance order with an award that is more
than Php5000?
A: (Karen) yes, the limit of 5000 does not apply to Art 128.
Art 128, Par (b)
XXX
Notwithstanding the provisions of Articles 129 and 217 of this
Code to the contrary, and in cases where the relationship of
employer-employee still exists, XXX
There is no more limit in the amount of award under Art 128.
TOPIC 7: WAGE PROTECTION PROVISIONS & PROHIBITIONS
REGARDING WAGES
With regards to the prescribed minimum wage, we want to know the
laws that protect the wages of the workers. So that after a days work,
they will get their days wage (Fair days wage, for a fair days labor).
Q: What is Art 112?
A: (Mel)
Art. 112. Non-interference in disposal of wages. No employer shall
limit or otherwise interfere with the freedom of any employee to
dispose of his wages. He shall not in any manner force, compel, or
oblige his employees to purchase merchandise, commodities or
other property from any other person, or otherwise make use of any
store or services of such employer or any other person.
The employer is prohibited from interfering with how the worker
chooses to spend his money.
The employee is given this freedom because he is the owner of his
wages. He worked for it, he must be given the freewill to dispose of it
as he pleases.
Q: Next Art 113. So what is the rule in 113, can the employer deduct
the employee’s wage?
A: (Mel)
Page 15
Article 113. Wage deduction. No employer, in his own behalf or in
behalf of any person, shall make any deduction from the wages of
his employees, except:
(a) 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;
(b) 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
(c) In cases where the employer is authorized by law or regulations
issued by the Secretary of Labor and Employment.
GR: No employer, in his own behalf or in behalf of any person, shall
make any deduction from the wages of his employees.
Exceptions: (MEMORIZE DAW!)
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
(CBA) OR authorized in writing by the individual worker
concerned; and
 Right to Check-off- is a mechanism that allows the
employer to deduct the employees wage an
amount corresponding to union dues.
3. In cases where the employer is authorized by law or
regulations issued by the Secretary of Labor and
Employment.
Q: Are there deductions required by law?
A: SSS, PAG-IBIG, Phil-Health.
No need to get the individual consent of the employees.
Q: Next, Article 114.
A: (May)
Art. 114. Deposits for loss or damage. No employer shall
require his worker to make deposits from which deductions shall be
made for the reimbursement of loss of or damage to tools,
materials, or equipment supplied by the employer, except when the
employer is engaged in such trades, occupations or business where
the practice of making deductions or requiring deposits is a
recognized one, or is necessary or desirable as determined by the
Secretary of Labor and Employment in appropriate rules and
regulations.
GR: No deduction from the deposits of an employee for the actual
amount of the loss or damage shall be made.
Exception: where the practice of making deductions or requiring
deposits is a recognized one; or is necessary or desirable as
determined by the Secretary of Labor and Employment.
Q: Have you come across a SC ruling that declared deductions as
illegal?
Five J Taxi vs NLRC
FACTS:
Private respondents Domingo Maldigan and Gilberto Sabsalon were
hired by the petitioners as taxi drivers. Aside from the daily
"boundary", they were also required to pay P20.00 for car washing,
and to further make a P15.00 deposit to answer for any deficiency in
their "boundary," for every actual working day.
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ISSUE:
Whether or not the car wash payment is an illegal deduction as
contemplated in the Labor Code.
RULING:
On the matter of the car wash payments, the labor arbiter had this
to say in his decision: "Anent the issue of illegal deductions, there is
no dispute that as a matter of practice in the taxi industry, after a
tour of duty, it is incumbent upon the driver to restore the unit he
has given to the same clean condition when he took it out, and as
claimed by the respondents (petitioners in the present case),
complainant(s) (private respondents herein) were made to shoulder
the expenses for washing, the amount doled out was paid directly to
the person who washed the unit, thus we find nothing illegal in this
practice, much more (sic) to consider the amount paid by the driver
as illegal deduction in the context of the law."
SC held that the amount doled out was paid directly to the person
who washed the unit, thus we find nothing illegal in this practice,
much more to consider the amount paid by the driver as illegal
deduction in the context of the law. Consequently, private
respondents are not entitled to the refund of the P20.00 car wash
payments they made. It will be noted that there was nothing to
prevent private respondents from cleaning the taxi units
themselves, if they wanted to save their P20.00.Car washing after a
tour of duty is a practice in the taxi industry, and is, in fact, dictated
by fair play.
(July 16, 2013)
… Continued from last meeting
Q: If I own a jewellery business, as one of my employees and your job
is to handle with care and clean the jewellery. Because of the value of
the jewellery I require you to make a deposit in case you damage the
jewellery so I can just deduct it from your deposit, is it a valid
deduction?
Nina Jewelry Mnufacturing of Metal Arts Inc. vs Montecillo
FACTS:
On August 13, 2004, Niña Jewelry imposed a policy for goldsmiths
requiring them to post cash bonds or deposits in varying amounts but
in no case exceeding 15% of the latter's salaries per week. The deposits
were intended to answer for any loss or damage which Niña Jewelry
may sustain by reason of the goldsmiths' fault or negligence in
handling the gold entrusted to them. The deposits shall be returned
upon completion of the goldsmiths' work and after an accounting of
the gold received.
Said respondents defied same policy and were considered
constructively dismissed by the company, who only alleged that they
stopped reporting to work. Respondents then filed complaint but same
was dismissed by the Labor Arbiter, only awarding them their 13th
month pay. They then elevated their complaint to the NLCR minus the
already-won 13th month pay.
Applying Article 113 and 114 of the Labor Code, the CA ruled in favor
and awarding respondents. Hence this petition for review
ISSUES:
Whether or not the requirement of posting cash bonds or have the
same deducted from the worker’s salaries is proper.
Page 16
RULING:
NO. While employers should generally be given leeways in their
exercise of management prerogatives, we agree with the respondents
and the CA that in the case at bar, the petitioners had failed to prove
that their imposition of the new policy upon the goldsmiths under Niña
Jewelry's employ falls under the exceptions specified in Articles 113
and 114 of the Labor Code.
While the petitioners are not absolutely precluded from imposing the
new policy, they can only do so upon compliance with the
requirements of the law. In other words, the petitioners should first
establish that the making of deductions from the salaries is authorized
by law, or regulations issued by the Secretary of Labor. Further, the
posting of cash bonds should be proven as a recognized practice in the
jewelry manufacturing business, or alternatively, the petitioners should
seek for the determination by the Secretary of Labor through the
issuance of appropriate rules and regulations that the policy the
former seeks to implement is necessary or desirable in the conduct of
business. The petitioners failed in this respect. It bears stressing that
without proofs that requiring deposits and effecting deductions are
recognized practices, or without securing the Secretary of Labor's
determination of the necessity or desirability of the same, the
imposition of new policies relative to deductions and deposits can be
made subject to abuse by the employers. This is not what the law
intends.
Q: When can the employer withhold the employee’s wage?
A: It is prohibited under Art 116.
Article 116. Withholding of wages and kickbacks prohibited. It shall
be unlawful for any person, directly or indirectly, to withhold any
amount from the wages of a worker or induce him to give up any
part of his wages by force, stealth, intimidation, threat or by any
other means whatsoever without the worker’s consent.
Q: Is there an exemption to the withholding of the employers wage?
A: Yes, under the Civil Code
Civil Code
Art 1706. Withholding of the wages, except for a debt due, shall not
be made by the employer.
Atty’s Situation:
I’m your employer, you asked for a cash advance and you promise to
th
pay on the 15 of the month of August, is it a debt? Yes, this is a
th
contract of loan which you have to pay on the 15 .
Come august 15 I owe you your salary for services rendered and you
owe me your loan.
Q: Based on the situation. Can I withhold your salary and deduct the
amount as payment for your debt? If yes, is there a legal basis?
A: Yes, apply Art 1706, Civil Code. The law states debts due, since in
August 15 your debt is due as well as your salary, then the employer
can withhold the employee’s salary to the extent of the amount owed.
Q: Would the answer be the same if you promise to pay me in
December and I withhold your salary in August?
A: No, because the employee’s debt is not yet due and demandable in
August.
Q: Is there any other exception?
nd
A: 2 Exception: If the employee gives his consent for the withholding.
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Q: Next, Article 117.
Article 117. Deduction to ensure employment. It shall be unlawful
to make any deduction from the wages of any employee for the
benefit of the employer or his representative or intermediary as
consideration of a promise of employment or retention in
employment.
Atty’s Situation:
th
If I am the employer and I hire you provided that every 15 of the
month I will deduct your salary a sum of Php50 and then you agreed
and gave your consent.
Q: Is it a legal deduction?
A: No, it is still illegal. Notwithstanding the employee giving his
consent, the stipulation for hiring is still illegal for violating Art 117.
If it were otherwise, every employee would be subject to abuse and
exploitation. It would no longer be in accordance with the
Constitutional provision of protection to labor.
Q: Next, Article 118.
Article 118. Retaliatory measures. It shall be unlawful for an
employer to refuse to pay or reduce the wages and benefits,
discharge or in any manner discriminate against any employee who
has filed any complaint or instituted any proceeding under this Title
or has testified or is about to testify in such proceedings.
Q: In what instance would an employee file a complaint against the
employer?
A: In cases of labor disputes like non-conformity with the minimum
wage, no overtime pay, and etc.
Under the law, if you file a suit against the employer, they cannot
discriminate upon you by withholding you wage and reducing you pay
and benefits, etc.
Q: Next, Article 119.
Article 119. False reporting. It shall be unlawful for any person to
make any statement, report, or record filed or kept pursuant to the
provisions of this Code knowing such statement, report or record to
be false in any material respect.
Q: Is there an obligation of the employer to keep and maintain
records of the employee?
A: Yes, under Art 128 (f) and IRR, Book III, Rule X, Sec. 6, 11 & 12.
Ex. The payroll – if any person falsifies the records in the payroll,
he/she would be liable for violation of Art 119.
During inspections, the employer is supposed to show the inspector
the employee records. If the records are found to be falsified then the
employer shall be liable under Art 119.
Q: What is the liability of the employer who violates the provisions of
the Labor Code?
Labor Code: BOOK SEVEN
Title I: PENAL PROVISIONS AND LIABILITIES
Article 288. Penalties. Except as otherwise provided in this Code, or
unless the acts complained of hinge on a question of interpretation
or implementation of ambiguous provisions of an existing collective
bargaining agreement, any violation of the provisions of this Code
declared to be unlawful or penal in nature shall be punished with a
fine of not less than One Thousand Pesos (P1,000.00) nor more than
Ten Thousand Pesos (P10,000.00) or imprisonment of not less than
three months nor more than three years, or both such fine and
imprisonment at the discretion of the court.
Page 17
Q: In what form should the employee’s wage be paid?
A: (Clea) it must be paid in legal tender/currency. (Art 1705, Civil Code)
Legal tender – is the currency legally accepted in the Phil; notes and
coins issued by the Central Bank (BSP) are legal tender. Cash is
considered legal tender.
Q: Is there any instance the employer can pay the worker partly cash
and partly in kind?
A: GR: No;
Exception: there are instances where the SC wherein such is allowed,
such as payment for deductible facilities (Meals, etc). In effect you are
allowed to pay the workers partly cash and partly in kind.
Congson vs NLRC
RULING:
Petitioner's practice of paying the private respondents the minimum
wage by means of legal tender combined with tuna liver and
intestines runs counter to the above cited provision of the Labor
Code. The fact that said method of paying the minimum wage was
not only agreed upon by both parties in the employment agreement
but even expressly requested by private respondents, does not
shield petitioner. Article 102 of the Labor Code is clear. Wages shall
be paid only by means of legal tender. The only instance when an
employer is permitted to pay wages informs other than legal tender,
that is, by checks or money order, is when the circumstances
prescribed in the second paragraph of Article 102 are present.
Q: Can you pay your workers in the form of promissory notes and
tokens if the employee gives his consent?
A: No, it is expressly prohibited under Art 102, Labor Code.
ART. 102. Forms of payment. -No employer shall pay the wages of
an employee by means of promissory notes, vouchers, coupons,
tokens, tickets, chits, or any object other than legal tender, even
when expressly requested by the employee.
Payment of wages by check or money order shall be allowed (1)
when such manner of payment is customary on the date of
effectivity of this Code, or (2) is necessary because of special
circumstances as specified in appropriate regulations to be issued by
the Secretary of Labor and Employment or (3) as stipulated in a
collective bargaining agreement.
Q: Can an employer pay his employee in a form of a check?
A: GR: No, because a check is not considered legal tender.
Exception: 2nd par of Art 102:
1. When such manner of payment is customary on the date of
the effectively of the Labor Code;
2. When it is necessary in special circumstance as specified in
appropriate regulations issued by the SOLE; and
3. As stipulated in the CBA.
Q: There are appropriate regulations issued by the SOLE, but they
have requisites. What are these requisites?
A: (Tj) Conditions/Requisites for payment of wages thru checks:
1. There is a bank or other facility for encashment within a
radius of one (1) kilometer from the workplace;
2. The employer or any of his agents or representatives does
not receive any pecuniary benefit directly or indirectly from
the arrangement;
3. The employees are given reasonable time during banking
hours to withdraw their wages from the bank which time
shall be considered as compensable hours worked if done
during working hours; and
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4. The payment by check is with the written consent of the
employees concerned if there is no collective agreement
authorizing the payment of wages by bank checks.
Atty’s Discussion:
Wage paid in check is somewhat convenient example in cases where
you are to receive 15 days’ worth of wage which is a lot of money;
there is a tendency that it might get stolen if it is in cash. And if you are
in a construction company, there is a danger of loss of the money.
Q: Can the employer pay the employee’s wage thru banks? If yes,
what are the requisites?
A: (TJ) Yes, the employer can pay wages thru banks under RA 6727:
Wage Rationalization Act, provided:
RA 6727
Section 7. Upon written permission of the majority of the employees
or workers concerned, all private establishments, companies,
businesses, and other entities with twenty five (25) or more
employees and located within one (1) kilometer radius to a
commercial, savings or rural bank shall pay the wages and other
benefits of their employees through any of said banks and within the
period of payment of wages fixed by Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the Philippines.
Section 8.Whenever applicable and upon request of a concerned
worker or union, the bank shall issue a certification of the record of
payment of wages of a particular worker or workers for a particular
payroll period.
Therefore the requisites are:
1. Upon written permission of the majority of the employees or
workers concerned;
2. All private establishments, companies, businesses, and other
entities with at least (25) or more employees;
3. Located within (1) kilometer radius to a commercial, savings
or rural banks shall pay wages or benefits of their employees
through any of the banks;
4. Within the period of payment of wages fixed by PD 442, the
Labor Code, as amended.
Q: What about ATM (Automated Teller Machine)? Does DOLE allow
payment of wages thru ATM?
A: (TJ) Yes, DOLE allows payment thru ATM’s; they are usually found in
banks or malls.
Q: What are the requisites for valid payment of wages thru ATM?
A: (TJ) Same Requisites as banks (above mentioned).
(1) And the employer must be within the time/frequency of payment
under PD 442.
Q: Under the Labor Code, how frequently must the wages be paid?
A: (TJ)
Art. 103. Time of payment. - Wages shall be paid at least once every
two (2) weeks or twice a month at intervals not exceeding sixteen
(16) days. If on account of force majeure or circumstances beyond
the employer’s control, payment of wages on or within the time
herein provided cannot be made, the employer shall pay the wages
immediately after such force majeure or circumstances have ceased.
No employer shall make payment with less frequency than once a
month.
Atty’s Situation:
USC pays my salary only once a month, they pay my full salary every
th
15 even if I haven’t finished the whole month.
Page 18
This is valid because the provision protects the employee because he
needs the money. In the above case, the money is already supplied or
paid in advance by the employer, which is more than compliance.
Q: Based on the above situation, my wage has already been paid in
nd
advance. If I become absent during the 2 half of the month, can the
employer validly deduct my next salary because of my absences?
A: (TJ) yes, since the employer already paid the full salary, he can
validly deduct the next salary minus the number of days the employee
was absent. This is in conformity with the principle of “Fair day’s wage
for a fair day’s labor.”
If you are absent they can deduct the amount corresponding to the
number of days you were absent.
Q: What are other requisite for payment thru ATM’s?
A: (TJ)
(2) There should be no additional expenses and no diminution of
benefits and privileges as a result of the ATM system of payment. (ex.
no service charges)
Q: Is it required that the employer must get the consent of all
employees concerned or just the majority?
A: Employees concerned only
Q: What is the reason for the prescribed frequency of payment
(twice/week; at intervals not exceeding 16 days)?
A: (Tristan) the workers need the money for his daily sustenance.
Q: Is there an instance where there could be payment of wages once
every month based on the law?
A: Yes, under the IRR: Rule VIII, Book III, Sec 3
Rule VIII, Book III, Sec 3
Sec. 3. Time of Payment.
(a) Wages shall be paid not less often than once every two (2) weeks
or twice a month at intervals not exceeding sixteen (16) days, unless
payment cannot be made with such regularity due to force majeure
or circumstances beyond the employer’s control, in such cases the
employer shall pay the wages immediately after such force majeure
or circumstances have ceased.
(b) In case of payment of wages by results involving work which
cannot be finished in two (2) weeks, payment shall be made at
intervals not exceeding sixteen (16) days in proportion to the
amount of work completed. Final settlement shall be made
immediately upon completion of the work.
General Rule: at least every 2 weeks or twice a month at intervals not
exceeding 16 days.
Exception: in cases of force majeure or in circumstances beyond the
employer’s control, wherein the payment of wages on or within the
time herein provided cannot be made, the employer shall pay the
wages immediately after such force majeure or circumstance have
ceased.
(Sir: “TIENE SENTIDO! it makes sense!”)
TOPIC 9: CONDITIONS OF EMPLOYMENT
Q: What are the normal hours of work under the law?
A: (Tristan)
ART. 83. Normal hours of work. -The normal hours of work of any
employee shall not exceed eight (8) hours a day.
It may be less but must not be more than (8) hours otherwise you must
be given overtime pay. In the Phil, the minimum wage is based on an
(8) hour work day.
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Q: If you do not work for the entire (8) hours do you expect to get the
full day’s wage?
A: No, you will only be paid proportionate to the number of hours you
worked under the principle of “A fair day’s wage for a fair day’s labor”
or “No work, no pay.”
Q: Doe the Labor Code prescribe the working day of the workers in a
week?
A: No, there is no fixed working day under the Labor Code. It is the
employer who fixes the working days of the employee under their
Management Prerogative.
Q: What is the normal work week in the Philippines under the Labor
Code?
A: The normal work week consists of 6 days/week, it can be
th
consecutive or interrupted. The 7 day is always a rest day.
Q: Is the rest day always on a Sunday?
A: No, it depends on the employer.
The rest day must consist of 24 consecutive hours. This is mandated if
the employer has 6 consecutive normal work days.
Q: If the employer only operates 4 days a week, does he need to
comply with the 24 consecutive hour rest day?
A: there is no more need, because the total work week does not
consist of 6 days/week. You have more than enough time to rest.
The purpose of the rest day is for the worker to spend time for himself
and for his family; the employer need time to rest after 6 days of work.
Q: Does the Labor Code fix when the hours of work start in a day?
A: No. it is the prerogative of the employer.
Q: What about the hours of work for children?
A: Under RA 9231:
Sec. 12-A. Hours of Work of a Working Child. Under the exceptions
provided in Section 12 of this Act, as amended:
1. A child below fifteen (15) years of age may be allowed to
work for not more than twenty (20) hours a week:
Provided, That the work shall not be more than four (4)
hours at any given day;
2. A child fifteen (15) years of age but below eighteen (18)
shall not be allowed to work for more than eight (8) hours
a day, and in no case beyond forty (40) hours a week;
3. No child below fifteen (15) years of age shall be allowed to
work between eight o'clock in the evening and six o'clock
in the morning of the following day and no child fifteen
(15) years of age but below eighteen (18) shall be allowed
to work between ten o'clock in the evening and six o'clock
in the morning of the following day."
Summary:
a. Below 15 years – maximum (20) hours/week & maximum of
(4) hours per day;
b. 15 years above but less than 18 years – maximum (40)
hours/week & maximum (8) hours/day;
c. Below 15 years – cannot work between 8:00pm – 6:00am;
d. 15 years above but less than 18 years – cannot work
between 10:00pm – 6:00am.
If these orders are violated, the employer shall face criminal liabilities
for violation of “Worst forms of child labor.”
Q: What about domestic workers?
A: Domestic workers are required to have (8) hours of aggregate rest
hours/day under RA 10361.
Page 19
Sec 20.Daily Rest Period. — The domestic worker shall be entitled to
an aggregate daily rest period of eight (8) hours per day.
So the normal working hours for a domestic worker is (16) hours/day.
Q: If you hire a domestic helper who is (16) years old, what are her
prescribed hours of work?
A: (Janjo) According to RA 9231 (as stated above), a child who is (15)
years and above but less than (18) years, his normal working hours
must be (8) hours/day max & (40) hours/week max.
There is an inconsistency between RA 9231 & RA 10361 to the extent
that RA 10361 only applies to persons who are not minors.
Q: The normal work week is (6) days/week. What provision in the
Labor Code that provides for a shorter workweek less than (6) days?
A: (Janjo)
Art. 83. Hours of Work - XXX
Health personnel in cities and municipalities with a population of at
least one million (1,000,000) OR in hospitals and clinics with a bed
capacity of at least one hundred (100) shall hold regular office
hours for eight (8) hours a day for five (5) days a week, exclusive of
time for meals, except where the exigencies of the service require
that such personnel work for six (6) days or forty-eight (48) hours
which case they shall be entitled to an additional compensation of at
least thirty percent (30%) of their regular wage for work on the sixth
day. For purposes of this Article, “health personnel” shall include
resident physicians, nurses, nutritionists, dieticians, pharmacists,
social workers, laboratory technicians, paramedical technicians,
psychologists, midwives, attendants and all other hospital or clinic
personnel.
Q: If you do not qualify with the above criteria for a (5) day work
week, what is your normal work week?
A: 8 hours/day; 6 days/week.
Q: When do health personnel enjoy a (6) day work week?
A: where exigencies of the service require such personnel to work for
(6) days/week.
Generally (with no qualifications):
Normal workers have a (6) day normal workweek;
Health Personnel have a (5) day normal workweek.
(July 23, 2013)
… Continued from last meeting
Q: If there is a clinic located in a municipality with a population of
500,000 and a 10 bed capacity. What is the prescribed normal work
week?
A: (May) 6 days/week. Because according to the Labor Code, if the
population of the municipality is 1M OR abed capacity of 100 the
normal workweek would be 5 days/week.
Based on the situation provided, since the clinic does not meet the
qualifications of a normal 5 day workweek for health personnel then
the clinic should follow the regular work week for regular employees
which is 6 days/week.
th
Q: What happens on the 7 day?
A: Rest day. It does not necessarily mean on a Sunday, the fixing of the
rest day will always depend on the prerogative of the employer.
Art. 91. Right to Weekly Rest Day
(a) It shall be the duty of every employer, whether operating for
profit or not, to provide each of his employees a rest period of not
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less than twenty-four (24) consecutive hours after every six (6)
consecutive normal work days.
(b) The employer shall determine and schedule the weekly rest day
of his employees subject to collective bargaining agreement and to
such rules and regulations as the Secretary of Labor may provide.
However, the employer shall respect the preference of employees
as to their weekly rest day when such preference is based on
religious grounds. (to accommodate members of the 7th day
Adventists and others
IRR: Rule III, Book III
Section 2. Business on Sundays/Holidays. All establishments and
enterprises may operate or open for business on Sundays and
Holidays provided that the employees are given the weekly rest day
and the benefits due them under the law.
Section 3. Weekly Rest Day. Every employer shall give his
employees a rest period of not less than (24) hours after every 6
consecutive normal work days.
Section 4. Preference of employee. The preference of the employee
as to his weekly day of rest shall be respected by the employer if the
same is based on religious grounds. The employee shall make known
his preference to the employer in writing at least seven (7) days
before the desired effectivity of the initial rest day so preferred.
Where, however, the choice of the employees as to their rest day
based on religious grounds will inevitably result in serious prejudice
or obstruction to the operations of the undertaking and the
employer cannot normally be expected to resort to other remedial
measures, the employer may so schedule the weekly rest day of
their choice for at least two (2) days in a month.
The employer can choose not to respect the preference of the
employee if it will inevitably result in prejudice and obstruction of the
operations of work.
Q: Can the employer change the rest day of the employee?
A: (May) Yes, provided that the employer inform the employee at least
(7) days prior to the change of schedule.
Q: What is a compressed workweek?
A: It is an alternative arrangement whereby the normal workweek is
reduced to less than (6) days but the total number of normal work
hours per week shall remain at (48) hours. The normal workday is
increased to more than (8) hours without corresponding overtime
premium. This concept can be adjusted accordingly in cases where the
normal workweek of the firm is (5) days.
The normal working hours in a (5) day compressed workweek is (9.6)
hours.
The worker will not be entitled to overtime pay, unless, the daily
working hours exceeds (12) hours or the normal weekly working hours
exceeds (48) hours.
Q: Does the employee waive his entitlement to overtime pay in a
compressed work week?
A: Yes, he is deemed to have waived it.
The waiver is not illegal because the compressed work week scheme
provides that the employee entered into this agreement voluntarily.
Q: What benefit/s do the workers derive from a compressed work
week?
A: the employee would enjoy extras days of rest; the employee would
also enjoy less daily expenses such as transpo, meal, etc. this would be
in substitute for overtime pay.
Page 20
As a rule, overtime pay cannot be waived, however if there is a
substitute such as the ones mentioned above, so the waiver can be
considered valid.
Q: Does it require the individual consent of the workers or the
majority?
A: it requires an express and voluntary agreement of the majority of
the covered employees or their duly authorized representatives. The
minority will have to follow the compressed work week scheme, they
have no choice.
Q: Does the compress work week scheme apply to all establishments
without any exception?
A: (May)
Compressed Workweek Schemes
(DOLE Dept. Advisory No. 2, Series of 2004)
This Advisory may be used in all establishments EXCEPT those in the
(1) Construction industry; (2) health services; (3) occupations
requiring heavy manual labor; or (4) occupations or workplaces in
which workers are exposed to airborne contaminants, human
carcinogens, substances, chemicals or noise that exceed threshold
limit values or tolerance levels for an eight‐hour workday as
prescribed under existing Occupational Safety and Health Standards
(OSHS)
Q: If the establishment adopts a compressed workweek, can they
change it to a normal workweek?
A: (May) Yes, the compressed workweek is only temporary and they
may choose to change it to a normal workweek if the majority agrees.
When it becomes a normal workweek they shall already be entitled to
overtime pay.
Adoption of the CWW scheme shall in no case result in diminution of
existing benefits. Reversion to the normal eight‐hour workday shall
not constitute a diminution of benefits. The reversion shall be
considered a legitimate exercise of management prerogative,
provided that the employer shall give the employees prior notice of
such reversion within a reasonable period of time.
Q: What is the principle of Non-Diminution of Benefits?
A: (May) The employer cannot take back or reduce unilaterally the
benefits he has given to the employee.
Article 100. Prohibition against elimination or diminution of
benefits. Nothing in this Book shall be construed to eliminate or in
any way diminish supplements, or other employee benefits being
enjoyed at the time of promulgation of this Code .
Time of promulgation of this code: May 1, 1974, the Labor Code took
effect on Nov. 1, 1974.
Q: What are supplements?
A: Supplements constitute extra remuneration or special privileges or
benefits given to or received by the laborers over and above their
ordinary earnings or wages.
(Atok-Big Wedge Assoc v Atok-Big Wedge Co, 97 Phil 294)
Q: What about supplements provided by the employer after the
promulgation of the Labor Code, will the employer be able to reduce
those benefits?
A: (May) No, it would still violate the prohibition of Non-Diminution of
Benefits.
Q: What are the requisites under this principle of Non-Diminution of
benefits?
A: The application of the principle presupposes that a company
practice, policy and tradition favorable to the employees has been
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clearly established; and that the payments made by the company
pursuant to it have ripened into benefits enjoyed by them.
To ripen into benefits, the following requisites must concur:
1. It should have been practiced over a long period of time;
2. It must be shown to have been consistent and deliberate;
3. It must not be made through an error in the interpretation of the
law.
Atty’s Discussion:
For those supplements or employment benefits granted before the
promulgation of the Labor Code apply Art 100 of the Code.
For benefits and supplements granted after the promulgation of the
Labor Code, you have to make a distinction.
1. If it is granted in an employment contract then you cannot
withdraw the benefits simply because doing so would violate
the contract;
2. If it is granted in a company policy then you also just cannot
withdraw it because company policies form part of every
employee’s contract;
3. If it is granted by way of company practice.
 Company Practice – there is no expressed policy
but through a (1)long period of time the company
has been granting these benefits (2)consistently,
deliberately and (3)does not involve an error in the
interpretation of law.
These benefits under company practice has ripen into a
vested right that cannot be merely unilaterally withdrawn,
diminished or reduced without violating the principle of non-
diminution of benefits.
Those who are working, your benefits are sourced from the CBA,
employment contract, company policy and company practice.
This principle prevents the employer from changing his mind and
unilaterally withdraw, reduce or diminished benefits.
TOPIC 10: MINIMUM LABOR STANDARDS BENEFITS
Q: If an employee works for more than (8) hours, is he entitled to
compensation?
A: (Bop2x aka “The Best”)
Yes, if the employee works for more than (8) hours he is entitled to
“overtime pay”
Q: How much is the overtime rate?
Labor Code
Article 87. Overtime Work. Work may be performed beyond
eight (8) hours a day provided that the employee is paid for the
overtime work an additional compensation equivalent to his regular
wage plus at least 25% thereof. Work performed beyond eight hours
on a holiday or rest day shall be paid an additional compensation
equivalent to the rate of the first eight hours on a holiday or rest day
plus at least 30% thereof.
The overtime rate will depend on when the overtime work is rendered.
If the OT is rendered on a Regular Working day, the employee is
entitled to an additional compensation equivalent to the amount of his
regular wage plus (25%) thereof.
If the OT is rendered on a Holiday or a Rest Day, the employee is
entitled to an additional compensation equivalent to the amount of his
regular wage plus (30%) thereof.
Page 21
National Shipyard and Steel Corp vs CIR
“Overtime compensation is additional pay for services or work
rendered or performed in excess of (8) hours a day by employees or
laborers in employment covered by eight hour labor law (now Art
87) and not exempt from its requirements. It is computed by
multiplying the overtime hourly rate by the number of hours worked
in excess of (8)”
Computation:
Ex. Php327 / 8 hours = Php40/hr.
If he renders (1) hour overtime on a Regular working day?
Php40 + 10(25%) = Php50/hr
If he renders it on a Holiday or Rest day?
Php40 + 12(30%) = Php52/hr
Q: Is there a difference between Overtime Pay and Premium Pay? Are
they Supplements or Facilities?
A: They are Supplements; they are added remuneration on top of the
basic wage.
Overtime Pay – is additional compensation given to an employee who
works beyond (8) hours.
Premium Pay – is additional compensation given to an employee who
works on a Holiday or Rest Day for the first (8) hours.
Q: What is this rule that under time not offset by overtime?
Article 88. Undertime not offset by overtime. Undertime work on
any particular day shall not be offset by overtime work on any other
day. Permission given to the employee to go on leave on some other
day of the week shall not exempt the employer from paying the
additional compensation required in this Chapter.
Atty’s Situation:
Yesterday you only worked for 4 hours, today you work for 12 hours.
Are you entitled to overtime pay? YES; For how many hours? Still 4
hours even though he only worked for 4 hours yesterday.
Yesterday, the employee cannot get his full days wage because he only
worked for 4 hours. He will only be compensated for the 4 hours of
work he rendered. (Remember “Fair days wage for a fair days labor”)
Today, the employee is entitled to OT for 4 hours. Of course as
previously discussed, OT would depend if it was rendered on a regular
day or on a holiday or rest day.
Undertime cannot be offset by overtime because undertime hours
represent only the employee’s hourly rate of pay and the appropriate
overtime premium such that, not being equal of value, offsetting the
undertime hours against the OT hours would result in undue
deprivation of the employee’s overtime premium.
Q: How many regular holidays do we have in the Philippines?
A: 12 Regular Holidays
The Administrative Code of the Philippines
(EO 292)
SEC. 26. Regular Holidays and Nationwide Special Days. (1) Unless
otherwise modified by law, order, or proclamation, the following
regular holidays and special days shall be observed in the country:
(a) Regular Holidays
1. New Year's Day - January 1
2. Maundy Thursday - Movable Date
3. Good Friday - Movable Date
4. Eidul Fitr - Movable Date (Muslim Holiday)
5. Eidul Adha - Movable Date (Muslim Holiday)
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6. Araw ng Kagitingan (Bataan and Corregidor Day) - Monday
nearest April 9
7. Labor Day -Monday nearest May 1
8. Independence Day - Monday nearest June 12
9. National Heroes Day - Last Monday of August
10. Bonifacio Day - Monday nearest November 30
11. Christmas Day - December 25
12. Rizal Day - Monday nearest December 30
Q: When is holiday pay given?
Article 94. Right to holiday pay.
(a) Every worker shall be paid his regular daily wage during regular
holidays, except in retail and service establishment regularly
employing less than ten workers;
(b) The employer may require an employee to work on any holiday
but such employee shall be paid a compensation equivalent to twice
his regular rate; and
XXX
The employee gets paid his holiday pay during Regular Holidays even if
he does not work on that day.
Q: This August 6 is a Special Holiday (Cebu Province Charter Day). Do
employees get paid Holiday pay even if they do not work on Special
Holidays?
A: No, the employee will not be paid Holiday Pay if he does not work
on a Special Holiday.
Q: If he works on a Special Holiday for the first (8) hours does he get
paid?
A: Yes, aside from his daily wage, since it is a Special Holiday, he shall
be entitled to an additional (30%) Premium Pay.
Article 93. Compensation for rest day, Sunday or holiday work.
XXX
Work performed on any special holiday shall be paid an additional
compensation of at least thirty percent (30%) of the regular wage of
the employee. Where such holiday work falls on the employee’s
scheduled rest day, he shall be entitled to an additional
compensation of at least (50%) of his regular wage.
XXX
If he works OT on that day, he gets an additional (30%) based on his
hourly rate.
Q: Assuming the next day is declared a Regular Holiday, if the
employee does not work on that day, does he get paid? If yes how
much?
A: Yes, he shall be paid an amount equivalent to his full day’s wage.
This wage is called “Holiday Pay”.
Q: If the employee works on a Regular Holiday, how much does he
get paid?
A: He shall be entitled to “Double Pay” according to Article 94 (b).
(b) The employer may require an employee to work on any holiday
but such employee shall be paid a compensation equivalent to twice
his regular rate; and XXX
So if your regular daily wage is Php327 then x2. The first Php327
corresponds to your “Holiday Pay Premium”; the second Php327
corresponds to your “Regular Daily rate”. All in all it is Php654.
Q: If there are (2) Regular Holidays falling on the same day, and the
worker does not work, does he get paid? How much?
A: Yes, he gets paid twice his Holiday Premium. (200%)
Q: What if he works on that day?
Page 22
A: He gets paid twice his Holiday Premium plus his Regular Daily Rate
for the first 8 hours. (300%)
Q: If a Regular Holiday falls on a Sunday which is the employee’s Rest
day, how much does he get paid if he does not work?
A: he gets paid his Holiday Premium only. (100%)
Q: What if he works on a Regular Holiday falling on his Rest Day?
A: You get paid (1) his Holiday Premium; plus (2) his Regular Daily Rate;
plus (3) an additional (30%) premium pay for working on a Rest Day.
(230%)
Q: When is an employee entitled to a Service Incentive Leave?
Article 95. Right to Service Incentive Leave.
(a) Every employee who has rendered at least one year of service
shall be entitled to a yearly service incentive leave of (5) days with
pay.
(b) This provision shall not apply to those who are already enjoying
the benefit herein provided, those enjoying vacation leave with pay
at least five days and those employed in establishments regularly
employing less than ten employees or in establishments exempted
from granting this benefit by the Secretary of Labor after considering
the viability or financial condition of such establishment.
(c) The grant of benefit in excess of that provided herein shall not be
made a subject of arbitration or any court or administrative action.
An employee is entitled to (5) days with pay Service Incentive Leave
(SIL) when he has rendered at least (1) year of service.
Q: For what purpose can you use the SIL?
A: for any purpose, like vacation.
Q: If the employee does not avail of the SIL does he forfeit it or is it
commutable to cash?
A: Service Incentive Leave is commutable to cash.
IRR, Book III, Rule V
Section 5. Treatment of benefit. The service incentive leave shall be
commutable to its money equivalent if not used or exhausted at the
end of the year.
Q: When is the cash equivalent paid to the worker?
A: (Bop2x) at the end of the year.
Q: Are there establishments exempted from paying Holiday pay?
A: (Jorj) Yes, according to IRR, Book III, Rule IV.
IRR, Book III, Rule IV
Section 1. Coverage. This rule shall apply to all employees EXCEPT:
(a) Those of the government and any of the political subdivision,
including government-owned and controlled corporation;
(b) Those of retail and service establishments regularly employing
less than ten (10) workers;
(c) Domestic helpers and persons in the personal service of another;
(d) Managerial employees as defined in Book Three of the Code;
(e) 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.
Q: What about Service Incentive Leave, is it applicable to all
establishments?
A: (Jorj) No, there are exceptions according to IRR, Book III, Rule V.
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IRR, Book III, Rule V
Section 1. Coverage. This rule shall apply to all employees EXCEPT:
(a) Those of the government and any of its political subdivisions,
including government-owned and controlled corporations;
(b) Domestic helpers and persons in the personal service of another;
(c) Managerial employees as defined in Book Three of this Code;
(d) Field personnel and other employees whose performance is
unsupervised by the employer including those who are engaged on
task or contract basis, purely commission basis, or those who are
paid a fixed amount for performing work irrespective of the time
consumed in the performance thereof;
(e) Those who are already enjoying the benefit herein provided;
(f) Those enjoying vacation leave with pay of at least five days; and
(g) Those employed in establishments regularly employing less than
ten employees.
Q: REVIEW: For domestic workers, what are their normal hours of
work?
A: (Jorj) 16 hours, according to RA 10361 “Kasambahay Law”, they are
given a total of 8 hours of rest per day.
Q: What are Service Charges?
A: (Jorj) Service Charges are charges paid to employees working in
Hotels, Motels and similar establishments engaged in service.
Q: Are establishments compelled by law to collect Service Charges?
A: No, they are no compelled, it is their prerogative.
Q: If they do decide to collect Service Charges, how is this treated by
law?
Labor Code
Article 96. Service charges. All service charges collected by hotels,
restaurants and similar establishments shall be distributed at the
rate of eighty-five percent (85%) for all covered employees and
fifteen percent (15%) for management. The share of the employees
shall be equally distributed among them. In case the service charge
is abolished, the share of the covered employees shall be considered
integrated in their wages.
IRR, Book III, Rule VI
Section 3. Distribution of service charges. All service charges
collected by covered employers shall be distributed at the rate of
85% for the employees and 15% for the management. The 85% shall
be distributed equally among the covered employees. The 15% shall
be for the disposition by management to answer for losses and
breakages and distribution to managerial employees at the
discretion of the management in the latter case.
Q: The (15%) share for management is intended for what purpose?
A: it shall be for the disposition by management to answer for losses
and breakages and distribution to managerial employees.
For example a waiter in a restaurant breaks a glass, so instead of
running after the pocket of the employee to pay for the breakage they
will just get the money from the 15% share of the service charge.
Q: How is the (85%) divided?
A: it shall be divided equally among the covered employees.
This does not include managerial employees, this applies only to rank
& file employees.
Q: Are officers and members of the managerial staff entitled to
Service Charges?
A: (Jorj) No.
Q: Who has the power to fix Regular Holidays under our existing
laws?
Page 23
A: (Demi) Congress.
Q: Do we have an existing law passed by Congress that fixes the
Regular Holidays?
A: EO 292, Chapter 7, Sec.26 as amended by RA 9177
Q: Can the President of the Phil move the Regular Holiday to another
date?
A: (Demi) Yes, EO 292 confers upon the President to move the date of
Regular Holidays provided a proclamation is made (6) months prior to
the changing of the date.
By mere proclamation the President can change the date of a Regular
Holiday, but for historical purposes usually the President does not
change the date.
TOPIC 11: OTHER SPECIAL BENEFITS
th
Q: What is this so called 13 month pay? Under what law?
A: (Demi) under PD 851, as amended.
PD 851
Section 1. All employers are hereby required to pay all their rank-file
employees a 13th month pay not later than December 24 of every
year. With the removal of the ceiling P1, 000.00 all rank-and‐file
employees are now entitled to a 13th month pay regardless of the
amount of basic salary that they received in a month, such
employees as entitled to the benefit regardless of their designation
or employment status and irrespective of method by which their
wages are paid provided that they have worked for at least 1 month
during the calendar year.
The employer is required to pay his employees their 13th month pay,
not later than December 24 of that year.
Q: What is the purpose of paying the 13th month pay not later than
Dec 24?
A: in order to enable the workers to properly celebrate Christmas and
New Year.
Q: The 13th month pay under the law is given to what kind of
employees?
A: To rank-and-file employees. Managers and supervisors are not
included in the 13th month pay, however, there is nothing that
prevents the employer to pay their managers and supervisors 13
th
month pay if they so desire.
But for purpose of the minimum standards benefits, 13th month only
covers rank-and-file employees. So, there is a need to know who
managerial employees are and who rank-and-file employees are.
Q: Who are Managerial Employees?
A: As used herein, "Managerial Employees" refer to those whose
primary duty consists of the management of the establishment in
which they are employed or of a department or subdivision thereof,
and to other officers or members of the managerial staff. (Art 82,
Labor Code)
Atty’s Discussion:
They are those who lay down and execute management policies. Those
not falling under this definition, we classify them as rank-and-file
employees.
Q: Are the rank-and-file employees entitled to the 13th month pay
regardless of their salary?
A: (Demi) Yes, regardless of salary.
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So even if the rank-and-file earns Php100,000/month he is still entitled
to a 13th month pay
Q: Is there a minimum length of service for a rank-and-file employee
th
to avail of the 13 month pay?
A: (Demi) they are required to have worked for at least (1) month
during the calendar year. (Sec.1, PD 851)
So if an employee is employed only for 2 weeks, he is not entitled to
th
13 month pay.
th
Q: How much is the 13 month pay under the law?
PD 851
Sec. 4. The minimum of the 13th month pay required by law shall
not be less than 1/12 of the total basic salary EARNED by an
employee within a calendar year. Earned because it is possible that
the employee has used his vacation leave, leave without pay which
should not be counted. The employer can provide for more if he so
desire.
Remember it is 1/12 of the basic salary EARNED in a calendar year.
So the employer would compute how many days have you worked and
paid in January, how many days have you worked and paid in February,
and so on.. to determine what the employee earned. If the employee
was on Study leave with pay in April, he did not earn anything.
Q: Assuming the employee worked for the entire calendar year, then
how much would he get paid for his 13th month?
th
A: If he works for the entire year, mathematically he gets paid his 13
month pay equivalent to his 1 month salary.
th
Q: Who are excluded from paying their employees their 13 month
pay?
A: Exempted Employers:
a. government and any of its political subdivisions including
GOCC (because they have their own 13th month pay law);
b. employers already paying their employees a 13th month pay
or its equivalent;
c. employers of household helpers and persons in the personal
service of another in relation to such workers;
d. employers of those who are paid on purely commission,
boundary or task basis and those who are paid a fixed
amount for performing specific work.
Q: If the employee works for only 6 months, is he entitled to 13th
month pay?
A: (April) Yes, but not in full. He will be getting an amount
proportionate to his 6 months of service.
Q: If an employee is terminated because he misappropriated
company money, is he entitled to 13th month pay?
A: (April) the law is silent on this matter and there is no forfeiture
th
provision under the 13 pay law. So since the law is silent, construe in
favour of labor. In this case, the employee is still entitled to 13th month
pay.
th
Q: If an employee resigns, will he be entitled to a 13 month pay?
A: Yes, as long as he has rendered at least (1) month of service.
Q: What is Paternity Leave?
A: Under RA 8187 “Paternity Leave Act of 1996”
“Paternity Leave” refers to the leave credits granted to a married
male employee to allow him to earn compensation for seven (7)
working days without reporting for work, provided that his spouse
has delivered a child or had a miscarriage or an abortion for the
Page 24
purpose of lending support to his wife during her period of recovery
and/or the nursing of the newly born child.
Paternity leave is equivalent to a (7) day leave with pay given to any
married male employee for the first (4) deliveries or miscarriages of
his lawful spouse.
The male employee does not need to render a minimum length of
service before he can avail of the Paternity Leave.
Q: What are the requisites for a male employee to avail of the
Paternity leave?
Revised Implementing Rules (Series of 1996)
Section 3. Conditions to entitlement of paternity leave benefits. A
married male employee shall be entitled to paternity benefits
provided that:
a. he is an employee at the time of delivery of his child;
b. he is cohabiting with his spouse at the time she gives birth or
suffers a miscarriage;
c. he has applied for paternity leave in accordance with Section
4 hereof; and
d. his wife has given birth or suffered a miscarriage.
The spouse mentioned in this section must be the lawful spouse; the
male employee must be lawfully married.
“Spouse” refers to the lawful wife. For this purpose, lawful wife refers
to a woman who is legally married to the male employee concerned.
(Sec.1, RIR 1996)
Q: What is the purpose of Paternity Leave?
A: to lend support to his wife during her period of recovery and/or the
nursing of the newly born child.
Q: What is meant by the term cohabit/cohabitation?
A: “Cohabiting” refers to the obligation of the husband and wife to live
together.
Q: Is this (7) day Paternity Leave commutable to cash if not availed
of?
A: No. under RA 8187 Sec 7, RIR.
Section 7. Non-commutation of benefits. In the event that paternity
leave benefit is not availed of, said leave shall NOT be convertible
to cash.
Q: Is there a criminal liability on the part of the employer if he refuses
to provide the male employee’s their Paternity Leave?
RA 8187
Section 5. Any person, corporation, trust, firm, partnership,
association or entity found violating this Act or the rules and
regulations promulgated thereunder shall be punished by a fine not
exceeding Twenty‐five thousand pesos (P25,000) or imprisonment of
not less than thirty (30) days nor more than six (6) months. XXX
Q: When is the qualified male employee entitled to paternity leave?
Is it before, during or after the delivery or miscarriage?
Revised Implementing Rules
Section 5. Availment. Paternity leave benefits shall be granted to
the qualified employee AFTER the delivery by his wife, without
prejudice to an employer allowing an employee to avail of the
benefit before or during the delivery; provided, that the total
number of days shall not exceed seven (7) days for each delivery.
GR: The employee can avail of the Paternity Leave after the delivery or
miscarriage;
Exception: if the employee allows the male employee to avail of the
leave before or during the delivery.
Q: What benefits are provided for in the Domestic Adoption Act (RA
8552)?
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A: (JEPERSON!)
IRR of RA 8552
Section 34. Benefits. The adoptive parents shall, with respect to the
adopted child, enjoy all the benefits to which biological parents are
entitled. Maternity and paternity benefits and other benefits given
to biological parents upon the birth of a child shall be enjoyed if the
adoptee is below seven (7) years of age as of the date the child is
placed with the adoptive parents thru the Pre-Adoptive Placement
Authority issued by the Department.
If a married couple decides to adopt a child below (7) years old, they
are entitled to Maternity and Paternity leave benefits accorded to by
law.
Q: What is the purpose of giving Maternity and Paternity benefits to
adopting parents?
A: to provide love, care, understanding and security towards the full
and harmonious development of the child’s personality.
The parents need time to have an emotional, psychological bond with
the child.
Q: Paternity as previously discussed, the male employee must be
legally married. In the case of Maternity leave, does the female
employee need to married?
A: No, she does not need to be married.
Q: Next, Under the Solo Parents Welfare Act (RA 9872). How do you
call the leave benefit under this act?
A: (Jefferson) “Parental leave”. This leave is different from Maternity
and Paternity leave.
RA 9872
Section 8. Parental Leave. - In addition to leave privileges under
existing laws, parental leave of not more than seven (7) working
days every year shall be granted to any solo parent employee who
has rendered service of at least one (1) year.
The employee is given (7) days every year with pay for Parental leave.
The employee must render at least (1) year of service unlike Paternity
and Maternity leave where even if you worked for a few days or
weeks, you can be entitled to Paternity and Maternity leave as long as
you are married.
Q: What is the purpose of Parental Leave?
A: to enable the parent employee to perform parental duties and
responsibilities where physical presence is required. (ex. PTA meetings,
Graduation, during Enrolment, etc.)
(July 30, 2013)
… Continued from last meeting
Q: What is “Flexible Work Schedule” according to the Solo Parents
Welfare Act?
A: "Flexible work schedule" - is the right granted to a solo parent
employee to vary his/her arrival and departure time without affecting
the core work hours as defined by the employer. (Sec. 3, RA 9872)
Section 6. Flexible Work Schedule. ‐ The employer shall provide for
a flexible working schedule for solo parents: Provided, That the
same shall not affect individual and company productivity: Provided,
further, That any employer may request exemption from the above
requirements from the DOLE on certain meritorious grounds.
Q: Why would they need to vary their arrival and departure time?
A: since they are solo parents, it gives them more time for their
children since no other parent can help them.
Page 25
Ex. A solo parent may request the employer if he/she could come to
work at 9am instead of 8 because he needs to bring his/her child to
school.
For purposes of this act, Children shall be those below 18 years old or
18 years old and above who is incapable of supporting himself.
Q: What are the requisites for a Solo Parent to avail of the Parental
Leave?
Article V, IRR
Section 19. Conditions for Entitlement of Parental Leave �A solo
parent shall be entitled to parental leave provided that:
a. He/She has rendered at least one (1) year of service
whether continuous or broken at the time of the
affectivity of the Act;
b. He/She has notified his/her employer of the availment
thereof within a reasonable time period; and
c. He/She has presented a Solo Parent Identification Card to
his/her employer.
Q: If the Solo Parent subsequently marries, will he still be entitled to
Parental Leave?
A: A change in the status or circumstance of the parent claiming
benefits under this Act, such that he/she is no longer left alone with
the responsibility of parenthood, shall terminate his/her eligibility for
these benefits.
Q: Without the Solo Parents Welfare act, would solo parents still be
entitled to any leave benefit under the Labor Code?
A: Yes, Service Incentive Leave but they must render at least (1) year of
service.
Q: Review: These Paternity and Maternity leave is equivalent to how
many days?
A: (Rem)
Paternity Leave – not more than (7) days with pay;
Maternity Leave (under Social Security Act) -
Q: If your wife is going to give birth in December, can you avail of the
Paternity leave in August?
A: No, it must be within a reasonable period of time from the expected
date of delivery.
RA 8187, IRR
Section 4. Application for leave. The married male employees shall
apply for paternity leave with his employer within a reasonable
period of time from the expected date of delivery by the pregnant
spouse, or within such period as may be provided by company rules
and regulations or by collective bargaining agreement, provided that
prior application for leave shall not be required in case of
miscarriage.
Q: Can the married male worker ask for the cash conversion for the
Paternity Leave?
A: No, the intent of the law is for the male employee to give full
support to his wife who is about to deliver or who suffers a
miscarriage.
RA 8187, IRR
Section 7. Non-commutation of benefits. In the event that paternity
leave benefit is not availed of, said leave shall not be convertible to
cash.
Q: Is the miscarriage stated in RA 8187 cover intentional abortion?
A: (Rem) No, it only covers unintentional abortion.
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Q: What is the Retirement age of employees?
A: (Mike) the optional retirement age of workers is (60) and above but
not beyond (65) which is the compulsory retirement age;
For underground miners, the optional retirement age is (50) and
above but not beyond (60) which is the compulsory retirement age.
Q: Is there a minimum length of service for an employee to avail of
retirement benefits?
A: For optional retirement of (60 and above), the minimum length of
service required is (5) years;
For compulsory retirement of (65), there is NO minimum length of
service required;
For underground miners in optional retirement of (50) and above, the
minimum length of service is (5) years;
For underground miners in compulsory retirement of (60), there is NO
minimum length of service.
Q: Is an employer allowed to hire a person who is 64 years old?
A: Yes it is allowed, there is no law that prohibits a senior citizen from
being hired by an employer.
Q: How much is the retirement pay under the Labor Code?
Labor Code
ART. 287. Retirement. Any employee may be retired upon reaching
the retirement age established in the collective bargaining
agreement or other applicable employment contract.
XXX at least one-half (1/2) month salary for every year of service, a
fraction of at least six (6) months being considered as one whole
year.
Unless the parties provide for broader inclusions, the term one-half
(1/2) month salary shall mean fifteen (15) days plus one-twelfth
(1/12) of the 13th month pay and the cash equivalent of not more
than five (5) days of service incentive leaves.
Q: So all in all, the ½ month salary is equivalent to how many days
per year of service?
A: 22.5 days per year of service
It composes of (15) days plus (5) from the Service Incentive Leave and
plus (2.5) days computed from the 13th month pay = 22.5 days per year
of service.
So if you are receiving the minimum wage, the computation is 22.5 x
327 x # of years of service
Q: What establishments are exempted from the Retirement Pay Law
(Art 287)?
A: Not applicable to:
1. Retail, service and agricultural establishments or operations
employing not more than (10) employees or workers.
2. Covered by Civil Service Law
3. Dismissed from work due to just cause.
Q: How about domestic helpers, are they entitled to retirement pay?
A: Yes, they are not included in the exemptions so therefore they are
included in the retirement pay.
Their latest daily rate must be used to compute for their retirement
pay (follow the computation).
Q: Is there any benefit extended by the Magna Carta of Women law?
RA 9710: Magna Carta of Women
Section 18. Special Leave Benefits for Women. A woman employee
having rendered continuous aggregate employment service of at
least six (6) months for the last twelve (12) months shall be entitled
to a special leave benefit of two (2) months with full pay based on
Page 26
her gross monthly compensation following surgery caused by
gynecological disorders.
The law extends an additional (2) month leave for female employees
following surgery caused by gynaecological disorders.
Q: Is there a minimum length of service for a female employee to be
entitled to this “Special Leave Benefit”?
A: the female employee must have rendered continuous aggregate
employment service of at least six (6) months for the last twelve (12)
months prior to surgery.
Q: Why does this law give this benefit to them?
A: A women who undergoes surgery need time to recover from her
operation.
Q: What is an example of a gynecologic disorder?
A: (b) Gynecological disorders refers to disorders that would require
surgical procedures such as, but not limited to, dilatation and
curettage and those involving female reproductive organs such as the
vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and
pelvic floor, as certified by a competent physician. For purposes of the
Act and the Rules and Regulations of this Act, gynecological surgeries
shall also include hysterectomy, ovariectomy, and mastectomy.
Q: What is the Expanded Breastfeeding Promotion Act (10028)? What
benefit does it provided to nursing employees?
Sec. 11. Establishment of Lactation Stations. It is hereby mandated
that all health and non-health facilities, establishments or
institutions shall establish lactation stations.
The lactation stations shall be adequately provided with the
necessary equipment and facilities, such as: lavatory for hand-
washing, unless there is an easily-accessible lavatory nearby;
refrigeration or appropriate cooling facilities for storing expressed
breastmilk; electrical outlets for breast pumps; a small table;
comfortable seats; and other items, the standards of which shall be
defined by the Department of Health. The lactation station shall not
be located in the toilet.
In addition, all health and non‐health facilities, establishments or
institutions shall take strict measures to prevent any direct or
indirect form of promotion, marketing, and/or sales of infant
formula and/or breastmilk substitutes within the lactation stations,
or in any event or circumstances which may be conducive to the
same.
Apart from the said minimum requirements, all health and non‐
health facilities, establishments or institutions may provide other
suitable facilities or services within the lactation station, all of which,
upon due substantiation, shall be considered eligible for purposes of
Section 14 of this Act.
Sec. 12. Lactation Periods. Nursing employees shall granted break
intervals in addition to the regular time-off for meals to breastfeed
or express milk. These intervals, which shall include the time it takes
an employee to get to and from the workplace lactation station,
shall be counted as compensable hours worked. The Department of
Labor and Employment (DOLE) may adjust the same: Provided, That
such intervals shall not be less than a total of forty (40) minutes for
every eight (8)‐hour working period.
Q: What is meant by Nursing employees?
A: According to RA 10028 (Expanded Breastfeeding Promotion Act of
2009)
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Sec 3. Definition of Terms
Nursing employee — any female worker, regardless of employment
status, who is breastfeeding her infant and/or young child.
Q: If one is considered a Nursing Employee, what benefits does the
law provide?
A: The law also provides additional break intervals of (40) minutes
every 8 hour shifts in addition to their regular meal time breaks.
These (40) minute breaks are considered compensable working hours.
Q: What is meant by an Infant or a Child?
Infant — a child within zero (0) to twelve (12) months of age.
Young child — a child from the age of twelve (12) months and one (1)
day up to thirty-six (36) months.
Q: Does the law require the establishments to provide breastfeeding
and lactation stations?
A: Yes, the law provides establishments to provide breastfeeding and
lactation stations for nursing women.
These stations must not be near toilets because it is unsanitary if it is
near a toilet. There must be a place devoted by an employer to nursing
employees with appropriate equipment and facilities
Q: Does the law describe the lactation station?
Lactation stations — private, clean, sanitary, and well-ventilated
rooms or areas in the workplace or public places where nursing
mothers can wash up, breastfeed or express their milk comfortably
and store this afterward.
Section 10. Minimum Requirements in the Establishment of
Lactation Stations ‐ It is hereby mandated that health and non‐
health facilities, establishments or institutions, including public
places, shall establish lactation stations as appropriate.
Lactation stations shall be accessible to the breastfeeding women. It
shall be adequately provided with the necessary equipment and
facilities and other items, the standards of which shall be defined by
the Department of Health. The lactation station shall be clean, well
ventilated, comfortable and free from contaminants and hazardous
substances, and shall ensure privacy for the women to express their
milk and/or in appropriate cases, breastfeed their child. In no case,
however, shall the lactation station be located in the toilet.
Q: How often does the employer permit the nursing employee to use
the lactation stations?
A: (Glenn) every 3-4 hours, so in an 8 hour shift they usually breastfeed
2-3 times.
This period for breastfeeding is considered compensable working
hours on top of their 1 hour meal breaks.
Q: Can the establishment apply for exemptions from the requirement
of lactation stations?
Section 8. Exemption ‐ A private establishment may apply for an
exemption to establish lactation station at the DOLE Regional Office
having jurisdiction over said establishment. An application for
exemption may be granted by the DOLE Regional Director upon
determination that the establishment of a lactation station is not
feasible or necessary due to the peculiar circumstances of the
workplace taking into account, among others, the number of
women employees, physical size of the establishment and average
number of women who will use the facility. Due substantiation shall
be made by the employer to support the application for exemption.
The exemption granted by DOLE shall be for a renewal period of two
(2) years.
Page 27
So if you just have a kiosk stand in Ayala so obviously it would be
absurd to place a lactation station there.
Q: If you do not apply for an exemption and you do not establish a
lactation station, is there a penalty?
Sec. 21. Sanctions. Any private non‐health facility, establishment
and institution which unjustifiably refuses or fails to comply with
Sections 6 and 7 of this Act shall be imposed a fine of not less than
Fifty thousand pesos (Php50,000.00) but not more than Two
hundred thousand pesos (Php200,000.00) on the first offense.
On the second offense, a fine of not less than Two hundred
thousand pesos (Php200,000.00) but not more than Five hundred
thousand pesos (Php500,000.00).
On the third offense, a fine of not less than Five hundred thousand
pesos (Php500,000.00) but not more than One million pesos
(Php1,000,000.00) and the cancellation or revocation of the business
permits or licenses to operate.
Q: What agency of government ensures compliance of the standards
for breastfeeding and lactation stations?
A: Department of Health (DOH).
So if the DOH finds that an establishment is not complying with the
lactation stations, they can order the appropriate sanctions.
The application for exception only covers the providing for of lactation
stations, there is no exception for the compensable (40) minutes break
time interval. It’s only lactation stations where you can apply for
exemptions.
TOPIC 12: JURSIDICTION OF THE LABOR ARBITER
Q: What are the requisites before the Regional Director can assume
jurisdiction under Art 129 over simple money claims?
Article 129. Recovery of wages, simple money claims and other
benefits. Upon complaint of any interested party, the Regional
Director of the Department of Labor and Employment or any of the
duly authorized hearing officers of the Department is empowered,
through summary proceeding and after due notice, to hear and
decide any matter involving the recovery of wages and other
monetary claims and benefits, including legal interest, owing to an
employee or person employed in domestic or household service or
house helper under this Code, arising from employer-employee
relations: Provided, That such complaint does not include a claim for
reinstatement: Provided further, That the aggregate money claims
of each employee or house helper does not exceed Five thousand
pesos (P5,000.00).
Requisites:
a. The claimant must be an employee or househelper;
b. Must arise from an Employee-Employer relationship;
c. The complaint does not include a claim for reinstatement;
d. The aggregate money claim of each employee or
househelper does not exceed Php5000.
Q: Does the Labor Arbiter have jurisdiction over money claims?
A: (Mich) Yes.
Article 217. Jurisdiction of the Labor Arbiters and the Commission.
Except as otherwise provided under this Code, the Labor Arbiters
shall have original and exclusive jurisdiction to hear and decide,
within thirty (30) calendar days after the submission of the case by
the parties for decision without extension, even in the absence of
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stenographic notes, the following cases involving all workers,
whether agricultural or non-agricultural:
a. Unfair labor practice cases (Labor Relations);
b. Termination disputes (Labor Relations);
c. If accompanied with a claim for reinstatement, those cases
that workers may file involving wages, rates of pay, hours
of work and other terms and conditions of employment
(Labor Standrds);
d. Claims for actual, moral, exemplary and other forms of
damages arising from the employer-employee relations
(Labor Standards);
e. Cases arising from any violation of Article 264 of this Code,
including questions involving the legality of strikes and
lockouts(Labor Relations); and
f. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other claims
arising from employer-employee relations, including
those of persons in domestic or household service,
involving an amount exceeding five thousand pesos
(P5,000.00) regardless of whether accompanied with a
claim for reinstatement. (Labor Standards)
Atty’s Situation:
So if the money claim involves Php8,000 and the complaint is for
underpayment of wages, the jurisdiction is with the Labor Arbiter. This
is regardless of whether there is a claim for reinstatement or not.
Q: Does the Labor Arbiter have jurisdiction over a complaint of non-
th
payment of 13 month pay in the sum of Php4,000 with a claim for
reinstatement?
A: Yes, the labor arbiter still has jurisdiction.
Art 217. XXX
c. If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work and
other terms and conditions of employment; XXX
Q: If the domestic helper has underpaid 13th month pay and with a
simple money claim of Php4,000 without a claim for reinstatement,
who has jurisdiction?
A: The Regional Director has jurisdiction.
Article 129. Recovery of wages, simple money claims and other
benefits. Upon complaint of any interested party, the Regional
Director of the Department of Labor and Employment or any of the
duly authorized hearing officers of the Department is empowered,
XXX to hear and decide any matter involving the recovery of wages
and other monetary claims and benefits, including legal interest,
owing to an employee or person employed in domestic or
household service or house helper under this Code, arising from
employer-employee relations: Provided, That such complaint does
not include a claim for reinstatement: Provided further, That the
aggregate money claims of each employee or house helper does
not exceed Five thousand pesos (P5,000.00).
th
Q: Are employees who are paid by job or task based entitled to 13
month pay?
A: No.
Q: Are employees paid partly a fixed salary and partly commission
th
entitled to 13 month pay?
A: Yes.
Q: Are employees paid purely on commission entitled to 13th month
pay?
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A: No.
Q: What’s the difference?
A: (Mitch) when an employee is paid partly fixed salary and partly
th
commission, the fixed salary should have the 13 month pay; the
th
compensation is not part in the computation the 13 month pay.
Q: Are employees paid on piece based entitled to 13th month pay?
A: Yes.
Q: In basic salary, does it include overtime pay or premium pay?
A: No, only basic pay.
Q: Are allowances part of the basic pay?
A: No.
Q: if the 13th month pay is not paid, does it become a money claim?
A: Yes.
Q: Under whose jurisdiction?
A: it depends:
For Labor Arbiters, they covers money claims accompanied with claims
of reinstatement or money claims exceeding P5000 regardless of
whether there is a claim for reinstatement or not.
For the Regional Director, he covers money claims not exceeding
P5000 but such complaint must not include a claim for reinstatement,
however, the Regional Director may acquire jurisdiction over money
claims exceeding P5000 if it is pursuant to his visitorial and
enforcement powers under Art 128-b
Q: What about Art 128, does it confer jurisdiction to the Regional
Director?
A: It is the Visitorial & Enforcement power, it is not adjudicatory. Art
129 is adjudicatory and provides for the jurisdiction of the Regional
Director.
Q: Is Art 217 adjudicatory over Labor Arbiters?
A: Yes, it confers jurisdiction to Labor Arbiters.
Atty’s Discussion:
When you say adjudicatory it is quasi-judicial; they determine the
rights and obligations of the parties and decide over the case.
Q: Art 217 (f) mentions “..EXCEPT claims for Employees
Compensation, Social Security, Medicare and maternity benefits..”
Who has jurisdiction over these claims?
A: Atty’s Discussion:
Claims under Employees compensation is under the “Employees
Compensation or ECC Law”.
ECC law is for work-related injury or sickness, so if you are working on
a factory and a hollow block falls on your head then it is a work related
injury, so that is compensable under the ECC law.
So for the injury that you sustained you can claim for damages but the
claim is filed with the Labor Arbiter but with the “Employees
Compensation Commission” who has jurisdiction.
Medicare has been changed to Phil Health under the “Philippine Life
Insurance Act”.
Maternity Benefits is under the “Social Security Law” and jurisdiction
over claims of damages is with the “Social Security Commission or
SSC”
Those who are members of SSS are entitled to benefits like sickness
benefits, disability benefits, funeral benefits and other similar benefits.
If these benefits are denied of you, then you can file a claim with the
SSC.
Q: If the money claim involves unpaid overtime pay of P1000 pesos
by a worker who is still employed?
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Labor Standards – Midterm Transcript
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A: (Russel) The jurisdiction is still with the Regional Director because
since the claim does not exceed P5000 and the employee is not
seeking a claim for reinstatement since he is still employed.
Q: Follow-up question: But isn’t it that under Art 129 the employee is
no longer employed?
A: (Russel) an employee who is claiming for reinstatement may no
longer employed, however employees who are still employed can
apply for under this article since they are not claiming reinstatement.
Q: So if it is with reinstatement?
A: Then the jurisdiction is with the Labor Arbiter.
Q: If the amount is more than P5000, would the claim for
reinstatement be important?
A: No, regardless whether he has a claim or not, the jurisdiction is with
the Labor Arbiter.
Q: If the Labor Arbiter renders a decision, who has jurisdiction over
an appeal?
A: NLRC
REVIEW QUESTIONS
Q: Are field personnel entitled to Overtime Pay?
A: No, they are expressly prohibited under Art 82.
Article 82. Coverage. The provisions of this Title shall apply to
employees in all establishments and undertakings whether for profit
or not, BUT NOT TO government employees, managerial employees,
field personnel, members of the family of the employer who are
dependent on him for support, domestic helpers, persons in the
personal service of another, and workers who are paid by results as
determined by the Secretary of Labor in appropriate regulations.
Field personnel are not entitled to overtime pay since their hours of
work are not standard and they can choose to work at their own time.
Q: Can field personnel be entitled to Holiday pay?
A: No, the coverage under Art 82 applies also to Holiday Pay,
Q: In August 6 it is a Special holiday and in August 9 it is a Regular
Holiday.
What is the difference between a Special Holiday and a Regular
Holiday?
A: In terms of the benefits received:
In a Special holiday, if the employee works he is entitled to his regular
daily rate plus an additional 30% for the first 8 hours; this is called
“Premium Pay”
If he does not work then he is not entitled to compensation.
In a Regular Holiday, if the employee works on that day, he is entitled
to his daily rate (100%) plus holiday pay (100%), equal to 200%.
If he does not work on a Regular Holiday, he is still entitled to (100%)
of his daily rate, this is called Holiday Pay.
Q: What if the Regular Holiday falls on the employee’s scheduled Rest
Day and he works on that day?
A: he is entitled to his daily rate (100%) plus an additional for (100%)
holiday pay. Then plus an additional (30%) of the total (200%) for
working on his rest day, equivalent to 260%.
Computation: 30% of 200 = 60, so 200%+60% =260%
Q: If he does not work on that day?
A: he only receives (100%) Holiday pay.
Q: What if the employee is a member of the managerial staff, will he
be entitled to Holiday pay?
A: No, Holiday pay covers only rank and file employees; however the
employer may choose to provide Holiday pay to the managerial staff if
he so wishes.
Q: If employees are required to attend Lectures and Seminars, is it
considered compensable hours of work even if outside their regular
hours of work?
A: Yes, it is still compensable since they are required to attend.
If it purely voluntary then it is not compensable
Q: When are Seminar, Meetings and lectures not considered
compensable hours of work?
IRR, Book III, Rule I
Section 6. Lectures, meetings, training programs. — Attendance at
lectures, meetings, training programs, and other similar activities
shall not be counted as working time if ALL of the following
conditions are met:
a) Attendance is outside of the employee's regular working
hours;
b) Attendance is in fact voluntary; and
c) The employee does not perform any productive work
during such attendance.
If one condition is absent, then the Seminar, Meeting or training is
considered compensable working hours.
Q: What is the principle of Non-Diminution of benefits?
A: it essentially means that benefits being given to employees cannot
be taken back or reduced unilaterally by the employer because the
benefit has become part of the employment contract, written or
unwritten.
This principle involves supplements and other employment benefits.
Q: What is meant by Supplements?
A: Constitute extra remuneration or privileges or benefits given to or
received by the laborers over and above their ordinary earnings wages.
Ex. if the employer gives free meals to the employee
-END-
NOTE: Please supplement your studies with the cases assigned by Atty.
Marquez. Do not limit your studies with only one source.
GOOD LUCK AND GOD BLESS TO ALL!! 

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