San Beda (No Date) Labor Law (Labor Standards)
San Beda (No Date) Labor Law (Labor Standards)
San Beda (No Date) Labor Law (Labor Standards)
PRELIMINARY TITLE
CHAPTER I GENERAL PROVISIONS
ART 1. NAME OF DECREE LABOR LEGISLATION - Consists of
statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. It is divided into labor standards and labor relations. LABOR STANDARDS - Are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards. LABOR RELATIONS LAW - defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. - The law which seeks to stabilize the relation between employer and employee, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration. 7.Right to Participate in Policy & Decision-Making Processes affecting their rights and benefits as may be provided by law
RELATED LAWS:
1. CIVIL CODE: see Arts. 1700, 1701and 1703 2. REVISED PENAL CODE: Art. 289 3. OTHERS: SSS Law, GSIS Law, Agrarian Reform Law, the 13th month pay law, the Magna Carta for Public Health Workers, etc.
RATIONALE :
- The raison d etre of labor laws is the POLICE POWER of the State ART 3. DECLARATION OF BASIC
POLICY
The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, age or creed, and regulate the relations between workers and employers. The State shall assure the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.
ART 4. CONSTRUCTION IN FAVOR OF LABOR CONSTRUCTION IN FAVOR OF LABOR CLAUSE -this is with a view to apply
the Code to the greater number of employees to enable them to avail of the benefits under the law (Abella vs. NLRC). The working mans welfare should be the primordial consideration. This rule is applicable if there is a doubt as to the meaning of the legal or contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms. These laws should be interpreted with a view to the fact that they are remedial in nature, they are enacted to better the lot
LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon
and promote the welfare of the members of the laboring class. Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order. Courts adopt a liberal approach that favors the exercise of labor rights. The mandate under Art. 4 is simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is.
ART 6. APPLICABILITY AGRICULTURAL OR FARM WORKER one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activities performed by a farmer as an incident to or in conjunction with such farming operations. There may be in one employer both agricultural as well as industrial workers. PURPOSE of the provision: intended to encourage workers to seek employment in agricultural enterprises instead of migrating to already overcrowded urban areas to find work in industrial establishments
MANAGEMENT PREROGATIVE
Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including: HIRING, WORK ASSIGNMENTS, WORKING METHODS, TIME PLACE AND MANNER OF WORK, TOOLS TO BE USED, PROCESSES TO BE FOLLOWED, SUPERVISION OF WORKERS, WORKING REGULATIONS, TRANSFER OF EMPLOYEES, WORK SUPERVISION, LAY-OFF OF WORKERS, AND DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD)
- The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code.
TENANCY RELATIONSHIP
Thus, so long as management prerogatives are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of employees under special law or under valid agreements, it shall be upheld. ART 5. RULES AND REGULATIONS
- The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.
- It is the landowner who is the lessor and the tenant the lessee of agricultural land
- The tenant derives his income from the agricultural produce or harvest
LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon
Page 2 of 70
WORKER -any member of the labor force, whether employed or unemployed RECRUITMENT AND PLACEMENT - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; PROVIDED, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. (CEC-TUCP) (RCPA) -The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates the presumption.
ART 7-11
Share tenancy has been abolished placing in its stead leasehold system. Under Art. 8, the land covered by operation land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in are. 5 hectares per landowner and 3 hectares per child provided the child is:
1. Is at least 15 years of age; and 2. Actually tilling the land or directly managing the farm
EXCEPTIONS:
those covered by homestead patents those covered by PD 27
EMANCIPATION PATENT - is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation pf the tenant from the bondage of the soil.
DOCUMENTATION OF WORKERS:
1. Contract Processing workers hired thru the POEA shall be issued the individual employment contract and such other documents as may be necessary for travel 2. Passport Documentation 3. Visa Arrangement
BOOK ONE PRE-EMPLOYMENT TITLE I RECRUITMENT AND PLACEMENT OF WORKERS CHAPTER I GENERAL PROVISIONS
ART 13. DEFINITIONS
valid any agreement to receive less compensation than what the worker is entitled to recover. (MR Yard Crew Union vs. PNR)
2. 3. 4. 5. 6.
Claims for death and burial benefits involving seamen OCWs which the POEA has jurisdiction are not the same as the claims against the State Insurance Fund of the LC.
- The basis for the award of backwages is the parties employment contract, stipulating the wages and benefits. The fact that the employee has signed a satisfaction receipt does not result in waiver; the law does not consider as
7. 8.
ART 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS MANDATORY REMITTANCE REQUIREMENTS:
1. Seamen or mariners: 80% of the basic salary; 2. Workers for Filipino Contractors and Construction Companies: 70% of the basic salary; 3. Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities: same as #2 4. All other professionals without board and lodging: 50% of the basic salary; 5. Domestic and other service of workers; 50% of the basic salary.
program and their relatives within the 4th degree of consanguinity or affinity; or 6. Those whose license has been previously canceled or revoked.
ART 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS QUALIFICATIONS FOR PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM:
1. Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens; 2. Minimum capitalization of 1M in case of single proprietorship or partnership and a minimum of 1M paid-up capital for corporations; 3. Those not otherwise disqualified by law or these guidelines to engage in the recruitment and placement of workers for overseas employment DISQUALIFICATIONS: 1. Travel agencies and sales agencies of airline companies; 2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency. 4. Persons, partnerships, or corporations which have derogatory records; 5. Persons employed in the Department of Labor or in other government agencies directly involved in overseas employment
12. Gunrunning or possession of deadly weapons; 13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency; and 14. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker.
MISCELLANEOUS PROVISIONS
ART 38. ILLEGAL RECRUITMENT (as per RA 8042 otherwise known as the Migrant Workers Act of 1995)
ILLEGAL RECRUITMENT - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not when undertaken by a non-licensee or non-holder of authority. PROVIDED that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the commission of prohibited acts whether committed by a non-licensee or non-holder of authority or a licensee or holder of authority.
O F S B W
CHAPTER III
Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault
THE QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL RECRUITMENT AS A CRIME INVOLVING ECONOMIC SABOTAGE ARE :
When committed by a SYNDICATE i.e., if it is carried out by a group of three (3) or more persons conspiring and confederating with one another; or (a) When committed in a LARGE SCALE i.e., if it is committed against three (3) or more persons
- a non-resident alien worker and the employer shall bind themselves to train at least 2 Filipino understudies.
AGAINST
Section 2-A of the Anti-Dummy Law prohibits the employment of aliens in establishment or entities which have under their name or control a right, franchise, privilege, property or business the exercise or enjoyment of which property or business the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned by such citizens.
EXCEPTIONS PROHIBITION:
a. b.
TO
THE
ART. 38 ( c ) declared unconstitutional since only a judge may issue search warrant/ warrant of arrest. The Sec. Of Labor may only recommend not issue. However, Closure of establishments of illegal recruiters may still be ordered by Secretary of Labor, same being essentially administrative and regulatory in nature.(Salazar vs. Achacoso and Marquez)
where the Secretary of Justice specifically authorizes the employment of technical personnel; or where the aliens are elected members of the board of directors or governing body of corporations or association in proportion to their allowable participation in the capital of such entities.
PRESCRIPTIVE PERIOD
Illegal Recruitment cases under RA 8042 shall prescribe in five (5) years Provided, however, That illegal recruitment cases involving economic sabotage shall prescribe in twenty (20) years.
BOOK TWO
HUMAN RESOURCES DEVELOPMENT TITLE I NATIONAL MANPOWER DEVELOPMENT PROGRAM CHAPTER I NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLELENTATION
ART 45. DEFINITIONS
MANPOWER - that portion of the nations population which has actual or potential capability to contribute directly to the production of goods and services. ENTREPRENEURSHIP - training for selfemployment or assisting individual or small industries within the purview of this the LC.
binds himself to train the apprentice and the apprentice in turn accepts the terms of training ON-THE-JOB TRAINING the practical work experience through actual participation in productive activities given to or acquired by an apprentice HIGHLY TECHNICAL INDUSTRIES trade, business, enterprise, industry or other activity, which is engaged in the application of advanced technology
APPRENTICES
Only employers in highly technical industries may hire apprentices and only in apprenticeable occupations as determined by the Sec. Of Labor
Requisites APPRENTICESHIP
for
VALID
1. QUALIFICATIONS OF THE APPRENTICE 2. APPRENTICESHIP AGREEMENT DULY EXECUTED AND SIGNED PROVIDING FOR COMPENSATION NOT LESS THAN 75% OF THE APPLICABLE MINIMUM WAGE, EXCEPT ON-THE-JOB TRAINING (OJT) 3.APPRENTICESHIP PROGRAM DULY APPROVED BY DOLE 4. PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS.
learner as regular employee if he desires upon completion of learnership 4. In case of pretermination of the apprenticeship agreement, the worker is not considered as a regular employee 4. Learner is considered as a regular employee in case of pretermination of contract after 2 mos. of training and the dismissal is without fault of learner 5. Semi-skilled / industrial occupations
ART 72. APPRENTICES WITHOUT COMPENSATION Apprentices who may be hired without compensation:
1.those whose training on the job is required by the school; 2.Training Program Curriculum; 3.Requisite for Graduation; or 4.A requisite for Board Examination
CHAPTER II LEARNERS
ART 73. LEARNERS DEFINED
LEARNERS - persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time which shall not exceed 3 mos.
Learners in piecework/ incentive - rate jobs are to be paid in full for the work done.
APPRENTICESHIP
1. Practical training on the job supplemented by related theoretical instruction.
LEARNERSHIP
1. Hiring of persons as trainees in semi-skilled and other industrial occupations which are nonapprenticeable and which may be learned thru practical training on the job in a relatively short period of time. 2. Practical training on the job not to exceed 3 mos.
2. Not less than 3 months practical training on the job but not more than 6 months 3. No Commitment to hire
Duration of employment - no minimum, no maximum. Dependent on agreement but is necessary that there is a specific duration
MANAGERIAL EMPLOYEES - Refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other members of the managerial staff Note: Definition applies only to the 8hour Labor law FIELD PERSONNEL - Refer to nonagricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. WORKERS PAID BY RESULTS - Method of computing compensation based on the work completed and not on the time spent in working. PIECE-RATE METHOD - Where pay is dependent on unit of product finished, preferred where the work process is repetitive and the out put is standardized and easily countable. DOMESTIC HELPERS/ PERSONS RENDERING PERSONAL SERVICES - Perform services in the employers home which are usually necessary and desirable for the maintenance or enjoyment thereof, or ministers to the personal comfort, convenience or safety of the employer, as well as the members of the employers household. The existence of employment relationship is determined by law and not by contract. Whether or not an employer-employee relationship exists between the parties is a question of fact. The findings of the NLRC are accorded not only respect but finality if supported by substantial evidence.
1. selection and engagement of the employee 2. the payment of wages 3. the power of dismissal 4. the employers power to control the employee (with respect to the means and methods by which the work is to be accomplished) The last element as mentioned above is what is known as the CONTROL TEST whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. This last element is the most important index of the existence of the relationship.
EMPLOYEE - A natural person who is hired, directly or indirectly, by a natural or juridical person to perform activities related to the business of the hirer who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the hire.
MANAGEMENT PREROGATIVE - except as otherwise limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place, and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers. Management prerogative recognizes the right of the employer to advance its interest to prescribe standards of work and impose reasonable quotas or work
assignments, and failure on the part of the employees to meet the requirement, impose in good faith, constitutes a just cause for his dismissal. New owner/management group has no obligation to re-employ workers who freely and voluntarily accepted their separation pay and other benefits. A change of ownership in a business concern is not proscribed by law.
work is with the knowledge of his employer or immediate supervisor 4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminence of the resumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employees own interest. - Only the maximum is prescribed, not minimum. Part- time work is therefore not prohibited.
ENGAGED TO WAIT - when waiting is an integral part of the job, it is compensable WAITING TO BE ENGAGED - idle time is not working time, not compensable
PURPOSE
to safeguard the health and welfare of the laborer and in a way to minimize unemployment by utilizing different shifts
REGULAR WORKING DAYS: The regular working days of covered employees shall not be more than five days in a workweek. The workweek may begin at any hour and on any day, including Saturday or Sunday, designated by the employer. ART 84. HOURS WORKED
WHEN COMPENSABLE:
TRAVEL
TIME
SHALL INCLUDE:
1. All time during which an employee is required to be on duty or to be at a prescribed workplace; and 2. All time during which an employee is suffered or permitted to work
1. Travel from home to work- refers to ordinary work travel but where the worker is made to work on an emergency call and travel is necessary in proceeding to the workplace, the time spent on travel is compensable 2. Travel that is all in a days work- time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. 3. Travel away from home- travel that keeps an employee away from home overnight. Work hours of seamen are governed by the same rules as land based employees. Thus, they must show sufficient proof that said work is actually performed. Rest Periods of short duration during working hours shall be considered as hours worked. Preliminary activities compensable when controlled or required by employer and are pursued necessarily and primarily for the employers benefit,
MEAL PERIODS
1. Should not be less than sixty (60) minutes, and is time-off/non-compensable 2. Under specified cases, may be less than sixty (60) minutes, but should not be less
than twenty (20) minutes an must be with full pay. 3. If less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time NOTE: Employee must be completely relieved from duty. Otherwise, it is compensable as hours worked. Mealtime is not compensable EXCEPT in cases where the lunch period or meal time is predominantly spent for the employers benefit or where it is less than 60 minutes. Employees may request that their meal period be shortened so that they can leave work earlier that the previously established schedule.
RATIONALE
- employee is given OT pay because he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. As a rule, cannot be waived, as it is intended to benefit laborers and employees. But when the waiver is made in consideration of benefits and privileges which may even exceed the overtime pay, the waiver may be permitted.
REQUISITES : 1. The employees voluntarily agree in writing to a shortened meal period and are willing to waive the overtime pay for such shortened meal period; 2. No diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period; 3. Work does not involve strenuous physical exertion and they are provided with adequate coffee breaks; 4. The value of benefits is equal with the compensation due them for the shortened meal period 5. OT pay will become due and demandable after the new time schedule; and 6. The arrangement is of temporary duration. ART 86. NIGHT SHIFT DIFFERENTIAL NIGHT SHIFT DIFFERENTIAL -Additional compensation of not less than ten percent (10%) of an employees regular wage for every hour of work done between 10:00 PM and 6:00 AM, whether or not this period is part of the workers regular shift. If work done between 10 PM and 6 AM is overtime work, then the 10% night shift differential should be based on his overtime rate.
NOTE: OT pay will not preclude payment of night shift differential pay. Meal periods during overtime work is not given to workers performing overtime for the reason that OT work is usually for a short period ranging from one to three hours and to deduct from the same one full hour as meal period would reduce to nothing the employees OT work.
WORK DAY - the 24-hour period which commences from the time the employee regularly starts to work. e.g., if the worker starts to work 8 am today, the workday is from 8am today up to 8 am tom. The minimum normal working hours fixed by the Act need not be continuous to constitute the legal working day Express approval by a superior is not a prerequisite to make overtime work compensable. HOWEVER, written authority after office hours during rest days and holidays are required for entitlement to compensation. The right to OT pay cannot be waived. Such waiver is contrary to law and public policy.
RATIONALE
- it serves as an inducement of employment
EXCEPTIONS:
1. When the waiver stipulates higher payment or rate of OT pay; or 2. Where the contract of employment requires work for more than eight hours of work at specified wage per day providing for a fixed hourly rate or that the daily wages include overtime pay. COMPRESSED WORKWEEK -allowable under the following conditions: 1. It is voluntary on the part of the worker 2. There will be no diminution of the weekly or monthly take-home pay and fringe benefits of the employees; 3. The value of the benefits that will accrue to the employees under the proposed schedule is more than or at least commensurate with the one-hour OT pay that is due them during weekdays based on the employees quantification 4. The one-hour OT pay will become due and payable if they are made or permitted to work on a day not scheduled for work on the compressed work week 5. The work does not involve strenuous physical exertion and employees must have adequate rest periods 5. The arrangement is of temporary duration.
N U
N C
1. Country is at war or any other national/local emergency has been declared by the Chief Executive/Congress 2. Necessary to prevent loss of life/property/ in case of actual/impending emergency in the locality 3. There is urgent work to be performed on machines, installations, or equipment in order to avoid serious loss/damage to the employer or some other causes of similar nature 4. Work is necessary to prevent loss/damage to perishable goods; and 5. where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. 6. when it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon
RATIONALE
An employees regular pay rate is lower than the overtime rate. Offsetting the undertime hours against the overtime hours would result in undue deprivation of the employees extra pay for overtime work. -
ART 89. EMERGENCY OVERTIME WORK WHEN WORKER MAY BE REQUIRED TO RENDER OT:
(WNUNCN)
ART 92. WHEN EMPLOYER MAY REQUIRE WORK ON A REST DAY WHEN EMPLOYEE MAY BE REQUIRED TO RENDER WORK ON A REST DAY:
1. In case of actual or impending emergencies caused by serious accident, fire, flood typhoon, earthquake epidemic or other disaster or calamity, to prevent loss of life or property or in cases of force majeure or imminent danger to public safety 2. urgent work to be performed on the machinery, equipment or installation to avoid serious loss which the employer would otherwise suffer 3. abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures 4. prevent serious loss of perishable goods 5. nature of work requires continuous operation for seven days a week 6. work is necessary to avail of favorable weather or environmental conditions where performance or quality of work depends upon them
REGULAR HOLIDAYS:
1. 2. 3. 4. 5. 6. 7. New Years Day -January 1 Maundy Thursday -Movable date Good FridayMovable date Araw ng Kagitingan -April 9 Labor Day -May 1 Independence Day -June 12 National Heroes Day`-Last Sunday August 8. Bonifacio Day-November 30 9. Christmas Day-December 25 10. Rizal Day-December 30 Note: Compensable unworked. whether worked
of
SPECIAL HOLIDAYS
1. All Saints Day -November 1 2. Last Day of the Year-December 31 3. And all other days declared by law or ordinances to be a special holiday or nonworking day NOTE: worked = regular wage plus 30% premium pay not worked = none
or
REGULAR HOLIDAY
- compensable even
SPECIAL HOLIDAY
- not compensable if
if unworked subject to certain conditions - limited to the 10 enumerated by the LC - rate is twice the regular rate if worked
unworked - not exclusive since law may provide for other special holidays - rate is 130% if worked
considered integrated in their wages on the basis of the average monthly share of each employee for the past 12 months immediately preceding the abolition.
TO
SERVICE
SERVICE INCENTIVE LEAVE (SIL) - Five (5) days leave with pay for every employee who has rendered at least one (1) year of service.
WAGE
- compensation manual labor Not subject execution for
SALARY
- denotes higher degree of employment - subject to execution (Gaa vs. CA)
to
1. 85% for all covered employees to be equally distributed among them 2. 15% for management (may answer for losses and breakages or distributed to management) If collection of service charges is abolished, the share of covered employees shall be
FACILITIES
SUPPLEMENTS
- Are items of expense necessary for the laborers and his familys existence and subsistence
- Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings wages - independent of the wage - not wage deductible
3. It is not due to an error in the construction /application of a doubtful or difficult question of law. But even in cases of error, it should be shown that the correction is being done soon after the discovery of the error. benefit given under certain conditions, such as success of the business or greater production or output. As a rule, it is an amount granted voluntarily to an employee for his industry and loyalty which contributed to the success and realization of profits of the employers business. Therefore, from a legal point of view, it is not a demandable and enforceable obligation. Unless, it was promised to be given without any conditions imposed for its payment, as such, it is deemed part of the wage. 13TH MONTH PAY (OR ITS EQUIVALENT) -additional income based on wage required by P.D. 851 which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year. - may be given anytime but not later than Dec. 24
ART. 98. APPLICATION OF TITLE This Title shall not apply to the following:
1. household or domestic helpers 2. homeworkers engaged in needle-work 3. workers employed in any establishment duly registered with the National Cottage Industry 4. Workers in any duly registered cooperatives
COVERAGE:
- All rank-and-file employees regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided, that they have worked for at least one (1) month during the calendar year.
FORMS:
1. 2. 3. 4. Christmas bonus midyear bonus profit sharing payments; and other cash bonuses amounting to not less than 1/12 of its basic salary. Difference of opinion on how to compute the 13th month pay does not justify a strike It must always be in the form of legal tender . Free rice, electricity cash and stock dividends, COLA not equivalent
The rule is applicable if it is shown that the grant of the benefit is:
1. based on an express policy, or 2. has ripened into practice over a long period of time, and the practice is consistent and deliberate.
EXCEPTIONS:
1. When payment cannot be effected at or near the place of work by reason of deterioration of peace and security 2. When the employer provides for free transportation to the employees back and forth; 3. And under analogous circumstances payment of wages in bars, night or day clubs, massage clinics or similar establishments are prohibited except for the workers therein.
GENERAL RULE:
EXCEPTIONS: - checks or money orders may be paid if: 1. the same is customary on the date of effectivity of the LC; 2. necessary because of special circumstances; or 3. as stipulated in the CBA
TO WHOM PAID
wages shall be paid directly to the workers to whom they are due.
standards, free exercise of the right to selforganization, security of tenure and social and welfare benefits. Substantial capital need not be coupled with investment in tools or equipment. This is clear from the use of the conjunction or. JOB C O NT R A CT IN G 1. No E- E relationship exist between employer and the contractors employee except when the contractor or subcontractor fails to pay the wages of his employees 2. liability is limited to unpaid wages and other labor standards violations LABOR ONLY CONTRACTING
EXCEPTIONS:
a. in case of force majeure/special circumstances, payment may be made through another person under written authority where the worker has died, the b. employer may pay the wages of the deceased worker to the heirs of the latter, through the Secretary of Labor or his representative, without the necessity of intestate proceedings, after the heirs have executed an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all others
2. liable to all rights duties and liabilities under labor standards laws including the right to self- organization 3. Prohibited by law 4. Contractor has no substantial capital/ investment
WORKING CONDITIONS - Refers to the terms and circumstances affecting the employment of an employee, including policies, programs and regulations governing his employment status, work, and work relationships. They are, as a rule, determined by the employer.
scheme of the Civil Code to tax claims of the government. just a preference, must yield to special preferred credit, e.g. secured creditors The formal declaration of insolvency or bankruptcy or a judicial liquidation of the employers business is a condition sine qua non to the operation of the preference accorded to workers under Art. 110.
REQUISITES FOR DEDUCTION FOR LOSS OR DAMAGE : 1. employee clearly shown responsible 2. opportunity to show cause to show why
deduction should not be made
1. Regional Tripartite Wages and Productivity Board 2. Congress MINIMUM WAGE - The lowest wage rate fixed by law that an employer can pay his employees.
distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation. CORRECTING WAGE DISTORTION
Unionized Establishment
1. Negotiate to correct the distortion. 2. Any dispute arising therefrom should be resolved through grievance procedure under their CBA. 3. If the dispute remains unresolved, through voluntary arbitration. Establishments without Unions 1. The employers and workers shall endeavor to correct the distortion. 2. Any dispute arising therefrom shall be settled through the NCMB and 3. If it remains unresolved after 10 days of conciliation, it shall be referred to the NLRC. Wage distortion is non- strikeable.
ART 124. STANDARDS/CRITERIA FOR MINIMUM WAGE FIXING FACTORS FOR DETERMINING REGIONAL MINIMUM WAGE RATES (DACNNIPFEE)
1. Demand for living wages; 2. Wage Adjustment vis-a vis the consumer price index; 3. Cost of living and changes or increases therein; 4. Needs of workers and their families; 5. Need to induce industries to invest in the countryside; 6. Improvements in standards of living; 7. Prevailing wage levels; 8. Fair Return of the capital invested and capacity to pay of employers; 9. Effects on Employment Generation and Family Income; 10. Equitable Distribution of Income & Wealth along the imperatives of economic and social development WAGE DISTORTION - situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the
ENFORCEMENT POWER ART. 129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS
Under Art. 129, the Regional Director is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interests.
REQUISITES :
1. The claim is presented by an employee or person employed in domestic or household service or househelper; 2. The claim arises from employer-employee relations; 3. The claimant does not seek reinstatement; and 4. The aggregate money claim of each employee or househelper does not exceed P5, 000.00 Access to employers records and premises the day/night whenever work is being undertaken therein includes the right to copy therefrom, to question any employee & investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Code and of any labor law, wage order, or rules and regulations Issue Compliance Orders (ART. 128) based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection Issue Writs of Execution (ART. 128) for the enforcement of orders except in cases where the employer contests the findings of the said labor officers and raises issues supported by documentary proofs which were not considered in the course of inspection. Order Work Stoppage/Suspension of Operations when non-compliance with the law or implementing rules and regulations poses grave & imminent danger to the health and safety of the workers in the workplace. Conduct Hearings within 24 hours to determine whether an order for stoppage of work/suspension of operations shall be lifted or not. employer shall pay the employees concerned their salaries in case the violation is attributable to his fault Require employers to keep and maintain Employment Records - as may be necessary in aid of his visitorial and enforcement powers
1. Visitorial and enforcement power of the Secretary of Labor /his duly authorized representatives exercised through routine inspections of establishments 2. requires the existence of E-E Relationship
1. Power of the Regional Director or any duly authorized hearing officers to hear and decide matters involving the recovery of wages, upon complaint of any interested party 2. E-E relationship not necessary since it should not include a claim for reinstatement 3. Aggregate claim of each complainant does not exceed P5,000 4. Appeal with NLRC; period of appeal is 5 calendar days
4. Appeal is with Sec.of Labor ; period of appeal is 10 calendar days 5. Person exercising the power is the Sec. Of Labor or any of his duly authorized representatives who may or may not be a regional director
5. The power is vested upon a regional director or any duly authorized hearing officer of the DOLE.
TITLE III WORKING CONDITIONS FOR SPECIAL GROUP OF EMPLOYEES CHAPTER I EMPLOYMENT OF WOMEN
ART 130. NIGHTWORK PROHIBITION
No woman , regardless of age, shall be employed or permitted or suffered to work, with or without compensation in any :
ART 128
ART 129
1. Industrial undertaking between 10PM-6AM 2. Commercial/Non-Industrial undertaking between 12 MN-6AM 3. Agricultural undertaking at nighttime unless, she is given a period of rest of not less than 9 consecutive hours
ART 131. EXCEPTIONS 1. Actual/Impending Emergencies caused by serious accident, flood, typhoon, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety 2. Urgent work to be performed on machineries, equipment or installation, to avoid serious loss 3. Work is necessary to prevent serious loss of perishable goods 4. Where she holds a responsible position of managerial/technical nature/engaged to provide health and welfare service 5. Nature of the work requires the manual skill and dexterity of women workers & cannot be performed with equal efficiency by male workers 6. Where women workers are immediate family members of the family operating the establishment or undertaking 7. Analogous cases ART 132. FACILITIES FOR WOMEN The Secretary of Labor may require employers to: 1. Provide seats proper for women and permit them to use the seats when they are free from work or during office hours provided the quality of the work will not be compromised; 2. To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; 3. To establish a nursery in the establishment; 4. To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like 1. Employee notified her employer of her pregnancy of the probable date of her childbirth 2. Full payment be advanced by the employer within 30 days from the filing of the maternity leave application 3. That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits 4. That the maternity benefits shall be paid only for the first four (4) deliveries or miscarriages 5. That the SSS shall immediately reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer 6. That if an employee member should give birth or suffer a miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. ART 133 (b) subsists, i.e., the maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, or miscarriage, which renders the woman unfit for work , unless she has earned unused leave credits from which such extended leave may be charged.
LIMIT OF THE BENEFIT: Applies only for the first four deliveries irrespective of who is the father of the children, and may not be availed of in addition to sickness benefit under the Social Security program. RA 8187 (PATERNITY LEAVE)
ART. BENEFITS
133
MATERNITY
LEAVE
MATERNITY LEAVE UNDER THE SSS LAW A female member, who need not be legally married, who has paid for at least three (3) monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credit for 60 days or 78 days, in case of caesarian delivery.
This law grants paternity leave of seven day with full pay to all married male employees in the private and public sectors.
- It is available only for the first four deliveries of the legitimate spouse with whom the husband is cohabiting.
DELIVERY includes childbirth, miscarriage, or abortion. Purpose: to enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child.
REQUISITES :
CONDITIONS :
1. he is an employee at he time of the delivery of his child; 2. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage; 3. he has applied for paternity leave ; and 4. his wife has given birth or suffered a miscarriage Paternity leave, if not availed of, is not convertible to cash.
2. 3.
the above acts would impair the employees rights or privileges under existing labor laws or The above acts would result in an intimidating, hostile, or offensive environment (Sec. 3[a], RA No. 7877)
WIFE - refers to the lawful wife which means the woman who is legally married to the male employee concerned. Where the male employee is already enjoying the paternity leave by reason of any law, decree, executive orders or any contract, agreement or policy between employer and employee and the existing paternity benefit is greater, the greater benefit shall prevail; if lesser, the existing benefit shall be adjusted to the extent of the difference.
OF
DISCRIMINATION
It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
Any woman who is permitted to work or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation.
2. Where the childs employment or participation in public entertainment or information through cinema, theater, radio, or television is essential, provided that: a. employment does not involve advertisements or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts or exhibiting violence; There is a written contract approved by the DOLE; and The conditions prescribed for the employment of minors {above stated} are met.
sufficient means in the place where the head of the family lives. 12. at least elementary education 13. employment certification
b. c.
NONHAZARDOUS WORK OR UNDERTAKING one where the employee is not exposed to any risk which constitutes an imminent danger to his safety and health.
BOOK FOUR HEALTH, SAFETY AND SOCIAL WELFARE BENEFITS TITLE I MEDICAL, DENTAL AND OCCUPATIONAL SAFETY CHAPTER I MEDICAL AND DENTAL SERVICES
ART 156. FIRST-AID TREATMENT
FIRST-AID TREATMENT adequate, immediate, and necessary medical and dental attention or remedy given in case of injury or illness suffered by a worker during employment, irrespective of whether or not such injury or illness is work-connected, before a more extensive medical and/or dental treatment can be secured. FIRST AIDER any person trained and duly certified as qualified to administer first aid by the Phil. National Red Cross or by any other organization accredited by the former.
HAZARDOUS WORKPLACES:
1. Where the nature of the work exposes the workers to dangerous environmental elements, contaminants or work conditions; 2. Where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing, and mechanized farming; 3. Where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products; 4. Where the workers use or are exposed to heavy or power-driven machinery or equipment; and 5. Where the workers use or are exposed to power-driven tools,
WORKMENS COMPENSATION ACT 1. There is a presumption of compensability 2. there is a presumption of aggravation 3. there is a need for the employer to controvert the claim within 14 days otherwise he is deemed to have waived the right 4. payment of compensation made by the employer
EMPLOYEES COMPENSATION LAW 1. no presumption of compensability 2. no presumption of aggravation 3. no need for the employer to controvert
Conditions for an occupational disease and the resulting disability or death to be compensable :
1. The employees work must involve the risk described therein 2. The disease was contracted as a result of the employees exposure to the described risks; 3. The disease was contracted within a period of exposure and under such other factors necessary to contract it; 4. There was no notorious negligence on the part of the employee DEATH or sickness Loss of life resulting from injury
DISABILITY -Loss or impairment of a physical or mental function resulting from injury or sickness. 4. payment of compensation made by SSS/GSIS through the State Insurance Fund DIRECT PREMISES RULE as a general rule, the accident should have occurred at the place of work to be compensable
2.
4. SPECIAL
ERRAND RULE injury sustained outside the company premises is compensable if his being out is covered by
2. 3. 4.
Willful intention to injure or kill himself or another; Notorious negligence; or Unless otherwise provided by the LC
NOTORIOUS NEGLIGENCE deliberate act of the employee to disregard his own personal safety. Is death through suicide compensable ? As a rule NO. However as held in NAESS vs. NLRC, the supreme court ruled that a self inflicted death could be compensable if : 1. by agreement of the parties 2. The suicide/death is caused by a work related or compensable illness or disease.
7. POSITIONAL
AND LOCAL RISKS DOCTRINE If an employee by reason of his duties is exposed to a special or peculiar danger from the elements, that is, one greater than that to which other persons in the community are exposed and an unexpected injury occurs, the injury is compensable when one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets an accident although one which any other person then and there present would have met irrespective of his employment.
STATE INSURANCE FUND: all covered employers are required to remit to a common fund a monthly contribution equivalent to one percent of the monthly salary credit of every covered employee. The employee pays no contribution to the fund. Any agreement to the contrary is prohibited.
EFFECTIVE
DATE
OF
The employer is covered compulsorily from first day of operation and the employee from the first day of employment
1.
DEATH BENEFITS
The System shall pay to the primary beneficiaries upon the death of the covered employee an amount equal to his monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution. The income benefit shall be guaranteed for five years.
LABOR RELATIONS LAW - Concerned with the stabilization of relations of employer and employees and seeks to forestall and adjust grievances through - the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation and arbitration. Absent an employer-employee relation, there is no labor relations to speak of.
DEPENDENTS:
1. the legitimate, legitimated, legally adopted or acknowledged natural child who is unmarried, not gainfully employed and not over 21 years of age or over 21 years of age provided that he is incapable of selfsupport due to a physical or mental defect which is congenital or acquired during minority 2. legitimate spouse living with the employee 3. the parents of said employee wholly dependent upon him for regular support
The public is always to be considered in disputes between labor and capital, and it ahas been held that the rights of the general public are paramount. Labor relations policy under the LC is embodied in Section 3 Article XIII of the 1987 Constitution which guarantees to all workers their right among others to selforganization, collective bargaining and negotiations, peaceful land concerted activities including the right to strike in accordance with law, and to participate in policy and decision making processes affecting their rights and benefits as may be provided by law.
BENEFITS
1. for life to the primary beneficiaries, guaranteed for five years 2. for not more than 60 months to the secondary beneficiaries in case there are no primary beneficiaries 3. in no case shall the total benefit be less that P 15, 000.00
SECONDARY BENEFICIARIES
a. Illegitimate children and legitimate descendants b. parents, grandparents, grandchildren
If he has not obtained any other: 1. Substantially equivalent and 2. Permanent employment