Labor Post Midterms Notes
Labor Post Midterms Notes
POST MIDTERM NOTES Art. 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. 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. "Field personnel" shall refer to non-agricultural 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. POQUIZ NOTES: Covers: All employees in all establishments and undertakings whether for profit or not Incentives: Hours of work Weekly rest periods Holidays Service Incentive leaves Service charges Exempts: 1. Government employees 2. Managerial employees 3. Officers and members of managerial staff 4. Field personnel 5. Members of the family of the employer who are dependent on him for support 6. Domestic helpers 7. Persons in the personal service of another 8. Workers paid by result
Officers and members of managerial staff they are exempted if they perform the following duties: 1. Primary duty consists in the performance of work directly related to management policies of the employer 2. They customarily or regularly exercise discretion and independent judgment 3. They regularly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or execute under general supervision, work along specialized or technical lines requiring special training, experience or knowledge; or execute under general supervision special assignments. 4. They do not devote more than 20% of their hours worked in a workweek to activities which are not related to the performance of the work described above. Note: that these employees customarily and regularly exercise discretion and independent judgment and their powers are not subject to evaluation, review and final action by the department heads and
Domestic Servants or Persons in the Personal Service of Another Those who perform services in the employers home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister the personal comfort, convenience, or safety of the employer s well as the members of his employers household. Note that employment of househelpers in commercial, industrial and agricultural enterprises entitles them to a salary rate not lower than what is provided for agricultural or non-agricultural workers. They are entitled to labor standard benefits granted under the law, rules and regulations. The law provides that once a househelper is employed she cannot later on be transferred to the business undertaking of the employer. A laundrywoman in staffhouses of a company or within the premises of the business of the employer, not actually serving the family of the employer, is a regular employee and not a domestic servant. Note that persons in personal service of another need not render services in or about the employers home such as personal security guards, private nurses and the like. Field Personnel Definition: non-agricultural 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. They are free from the personal supervision of the employer. Examples: Sales personnel, agents on commission basis, or insurance field agents.
Workers paid by result Those who are paid on piece-work, takay, pakiao or task basis. Payment is based on the results of the work performed or the number of units produced, not the number hours used in the completion of the job or the time spent in production. In piece-work, the stress is placed in the unit of work produced or quantity thereof, which uniformly earns a specific amount in therms of labor cost. Task work emphasis is on the task itself, payment is reckoned in terms of completion of work. Benefits to which Piece-Rate Workers are entitled to: (HANS MOTO) (R. Quan Notes) Holiday Pay Applicable Statutory Minimum Daily Rate Night Differential Pay Service Incentive Leave Meal and Rest Periods Overtime Pay Thirteenth Month Pay Other Benefits Lecture August 14, 2008 Book III of the LC is what we call Labor Standards Proper It is not enough that you read the article, always ascertain under which chapter and title this article is being considered. Title I is working conditions and rest periods. This article 82 is very important. This tells you who are covered in Title I and not covered by Title I. Who are covered? All employees in all establishments Who are not covered? Refer to the enumeration above of exempted employees. Note that in Article 82 only two kinds of employees were defined: managerial and field personnel. Distinguish the managerial employee here from Art. 212(m). In the bar if you are asked about managerial employees in relation to labor standards cite Article 82, for Labor relations cite Art. 212(m). Note: All managerial employees in Art. 212(m) are covered in Art. 82, but NOT vice versa. Example officers and members of the managerial
Members of the Family Include: Husband and Wife Parents and Children Other ascendants and descendants Brothers and sisters whether full or half-blood They are exempted because the support given by the employer may exceed the benefit for which an employee is entitled under appropriate
Art. 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day. 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, in 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, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians,
Waiting time
Subject to call
- Voluntary Attendance - Employee does not perform any productive work during attendance
Lecture: August 19, 2008 Recitation Questions: Can the employee and employer agree on 6 hours of normal work hours? In this case, does work on the 7th hour become overtime? Can an employer and employee agree to an abnormal hours of work? (meaning anything deviating from the 8 hours of work) Yes, if it is lower than 8 hours, that is allowed. But anything over 8 hours must be compensated as overtime. Referring now to health personnel under this article, are massage attendants included here? Are midwives and nutritionists health personnel? Yes What is the definition of a health clinic? What about Spas? Note: that this article does not require that the work be done in a hospital, a clinic suffices. Narvasa v Nawasa - purpose of the law is to safeguard health. Are resident physicians entitled to protection under this article? No. refer to Felixa v Buenaseda. Note that Article 83 has been amended by RA 7305, 1995 Now Art. 83 only covers private health personnel
Lecture: August 14, 2008 Normal hours of work should not exceed 8 hours per day Should it be continuous or can it be staggered? It can be staggered. Law does not say it has to be 8 hours of continuous work. Note that there is nothing in the law to support the assertion that personnel in hospitals and clinics are entitled to a full weekly wage for 7 days if they have completed the 40-hour/5-day workweek in any given
August 21, 2008 You cannot increase 8 hours without violating the law You can decrease with the consent of the parties through a collective bargaining agreement. Minimum wage with daily basis must be tied with Art.83. Hotels example they are not paying workers in accordance with
Art. 84. Hours worked. Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. POQUIZ NOTES Compensable work hours 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 3. Rest period of short duration during working hours Rest period of short duration during working hours coffee breaks or snack time. Lecture: August 19, 2008 Note that these are already in the implementing rules. What complicates the law here is Sec 3a and 3b 5 Things to consider for compensability: Duty Workplace Permitted to Work Suffered to Work Less Than 20 minutes coffee break Note that these are not supposed to be concurring factors However, Duty and Suffered to work must be seen side by side Workplace and permitted to work must be seen side by side. You may be in a work place but you were not permitted to work. They have to compliment with each other. But note the first example below.
Formula Basic Pay 8 x 110% (for each hour between 10:00pm 6:00am)
August 21, 2008 Workers are supposed to enjoy 1 hour meal time. This is not compensable. If the workers are given less than one hour mealtime that becomes compensable.
Art. 86. Night shift differential. Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten oclock in the evening and six oclock in the morning. POQUIZ NOTES There is no plausible argument against the universal fact that the regular, normal and ordinary work is that performed during the day, and that the work done at night is very exceptional and justified only on grounds of inevitable necessity. Coverage All employees except: 1. Government employees 2. Employees of retail and service establishments regularly employing not more than 5 workers. 3. Managerial employees 4. Officers and members of managerial staff 5. Field personnel and other employees whose time and performance is unsupervised by the employer 6. Members of the family of the employer who are dependent on him for support 7. Domestic helpers 8. Persons in the personal service of another
Note that where the nighttime work of an employee overlaps with overtime work, the receipt of one does not preclude the receipt of the other. This is because, the first is pay for working at night, the other is pay for working beyond 8 hours.
Art. 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 twentyfive percent (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 thirty percent (30%) thereof. POQUIZ NOTES Purpose of the law To encourage employers to dispense with such work thus providing the employees an opportunity to satisfy their mental, moral and spiritual needs. To ease unemployment problem, for employers will be constrained to employ additional employees to work in other shifts necessary for the operation of the business. Overtime Work Service rendered in excess of and in addition to 8 hours on ordinary working days, which are the prescribed daily work period. Overtime pay Employee shall be paid an additional compensation for the overtime work in an amount equivalent to his regular wage plus at least 25% thereof. Basic wage x 125% = Overtime pay If an employee works on a holiday or rest day beyond 8 hours beside from
Condition for entitlement of overtime pay Entitlement to overtime pay must first be established by sufficient proof that said overtime work was actually performed, before an employee may avail of said benefit (Cagampan v NLRC, 195 SCRA 633) An employee is entitled overtime pay for work rendered in excess of 8 hours despite the fact that his employment contract specifies a 12-hour workday at a fixed monthly salary rate that is above legal minimum wage. The SC held that the contract in question could have been deemed in violation of pertinent labor laws. And the provisions of the latter prevail over the terms of the contract (Pesala v NLRC, 73 SCAD 450)
Overload Work Where a teacher is engaged to undertake actual additional teaching work after completing his regular teaching load, such additional work is referred to as overload. If overload work is done within the normal hours of work (8), then overload pay is considered part of basic pay for the purpose of computing 13th month pay. Since overload work may be performed within or outside the 8 hours in a day, overload work may or may not be overtime pay.
Chinese overtime against public policy This is a system of overtime payment in which salaried employees regular rate is calculated by dividing his salary by the total number of hours he works. Thus, the greater the number of hours, the lower the rate of pay per hour, unduly reducing the take home pay of the employee. This economic practice is prohibited by law. Q: Is a supervisor entitled to overtime pay? To holiday pay? (R. Quan Notes) A supervisor is part of the managerial staff and therefore not entitled to overtime pay and other benefits, as provided in Articles 83 to 96. (National Sugar Refineries Corp. v. NLRC, 24 March 1993) Lecture: August 21, 2008 Work beyond 8 hours is overtime work and is compensable by 30% more. Whats important is how you compute the hourly rate. Hourly rate basic daily pay divided by 8. This is when workers are hired for a daily basis. But not all workers are employed this way. Some are by monthly basis. Monthly basis pay you are paid your whole months pay regardless of the number of days you come in to work during that
Art. 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. POQUIZ NOTES Offsetting the overtime with undertime and at the same time charging said undertime to the accrued leave is unfair and cannot be done. Proper method should be to deduct undertime or absences against the employees accrued leave but pay him the overtime to which he is rightfully entitled. The rule will prevent the anomalous situation whereby an employee could schedule his working hours at will thereby destroying the regular working schedules. Lecture: August 21, 2008 The law says undertime cannot be offset by overtime, but can overtime be offset by undertime? No. How can you offset more with less. You cannot do that.
Art. 90. Computation of additional compensation. For purposes of computing overtime and other additional remuneration as required by this Chapter, the "regular wage" of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. POQUIZ NOTES Regular wage all payments which the parties have agreed shall be received during the work week, including piecework wages, differential payments for working at undesirable times, such as at night or on Sundays and holidays and the cost of board and lodging customarily furnished the employee. Regularity and continuity test Fringe benefits which are only occasionally enjoyed failed to meet the test. Note that regular pay does not include cost of living allowance, longevity pay or other fringe benefits which items constitute extra pay or additions to the regular or basic pay. Lecture: August 14, 2008 Note that this only applies to chapter I. Chapter I is hours of work. This does not apply to rest day computation, holiday pay, etc.
August 21, 2008 When you talk about OT and Night differential pay you only reckon with
Pedro situation If it is part of his wage then facility Not part of his wage supplement
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 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 and Employment 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. POQUIZ NOTES Rest day does not necessarily need to be on a Sunday. As long as the employee is given a 24 consecutive hours of rest for every 6 days of work. If the employee has a preference as to when his rest day shall be, that should be respected if such is based on religious grounds. Such preference must be communicated 7 days before desired effectivity. However, if such preference will cause serious prejudice to the employer and he cannot be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of their choice for at least 2 days in a month.
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Art. 92. When employer may require work on a rest day. The employer may require his employees to work on any day: a. In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety; b. In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; c. In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; d. To prevent loss or damage to perishable goods; e. Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and f. Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment. Authorized Work on a Rest Day allowed when: (UAAP NA) (R. Quan Notes): Urgent work to be performed on machinery Actual impending emergency Abnormal pressure or work Prevent loss/damage to perishable goods
Situations Country at war/National or Local Emergency Completion of work started before the 8th hour and is necessary to prevent serious obstruction or prejudice to the business Urgent work to be performed on Machines to avoid serious loss or damage to employer Necessary to Prevent loss of life/property or Imminent danger to public safety Necessary to prevent loss or damage to perishable goods Necessary to avail of favorable weather or environmental condition Nature of work requires continuous operations Abnormal pressure or work Analogous situations
Art 89
Art 92
POQUIZ NOTES No employee shall be required against his will to work on his scheduled rest day except under the above-mentioned circumstances provided, however, that where an employee volunteers to work on his rest day except under other circumstances, he shall express such desire in writing, subject to the provisions regarding additional compensation. Art. 93. Compensation for rest day, Sunday or holiday work. a. Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day. b. When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays. c. Work performed on any special holiday shall be paid an additional
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12
x x
260 % 338 %
Premium Overtime
Monthly-paid employees entitled to holiday pay IBAAEU v Inciong, October 23, 1984 WE agree with the petitioner's contention that Section 2, Rule IV, Book III of the implementing rules and Policy Instruction No. 9 issued by the then Secretary of Labor are null and void since in the guise of clarifying the Labor Code's provisions on holiday pay, they in effect amended them by enlarging the scope of their exclusion (p. 1 1, rec.). Article 94 of the Labor Code, as amended by P.D. 850, provides: Art. 94. Right to holiday pay. (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers. ... The coverage and scope of exclusion of the Labor Code's holiday pay provisions is spelled out under Article 82 thereof which reads: Art. 82. Coverage. The provision 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. From the above-cited provisions, it is clear that monthly paid employees are not excluded from the benefits of holiday pay. However, the implementing rules on holiday pay promulgated by the then Secretary of Labor excludes monthly paid employees from the said benefits by inserting, under Rule IV, Book III of the implementing rules, Section 2, which provides that: "employees who are uniformly paid by the month, irrespective of the number of working days therein, with a salary of not less than the statutory or established minimum wage shall be presumed to be paid for all days in the month whether worked or not. "
Muslim Holidays under RA 9177 First day of Shawwal (10th mo) national holiday for observance of Eidul Fitre The tenth day of Zhul Hijja (12th mo.) regional holiday of the Autonomous Region in Muslim Mindanao. No distinction between Muslims and non-Muslims as regards payment of benefits for Muslim holidays. Wages and other emoluments granted by law are determined on the basis of the criteria laid down by laws and certainly not on the basis of the workers faith or religion (SMC v CA, January 30, 2002) Rates of Holiday Pay No Work Basic x
x x
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Monthly paid employee divisor (pg 203) 314 6-day working schedule 261 5-day working schedule Exempted Employees 1. Government employees 2. Employees of retail and service Establishments regularly employing less than 10 workers. 3. Managerial employees 4. Officers and members of managerial staff 5. Field personnel and other employees whose time and performance is unsupervised by the employer 6. Members of the family of the employer who are dependent on him for support 7. Domestic helpers 8. Persons in the personal service of another 9. Workers who are paid by result. Effects of some situations on holiday pay Employee (E) is on LOA w/ pay E if on LOA w/o pay on the day immediately preceding the RH The day immediately preceding is a Rest Day Absence on the day immediately preceding RH In a situation where there are 2 consecutive RHs (holy week), E is absent the day immediately preceding the first holiday. But if on the first holiday he comes in to work, for the second holiday Where there is a temporary shutdown or cessation of work (yearly inventory, repair or cleaning of Entitled Not Entitled Entitled Not Entitled Not Entitled Entitled Entitled
Holiday pay for certain employees Private School Teachers Not entitled to HP during Semestral breaks Entitled to HP during Christmas vacation Faculty members paid per hour or lecture are not entitled to HP. Covered Employee Paid by Result HP shall not be less than his average daily earnings for the last 7 actual working days preceding the RH. HP cannot be lower than statutory minimum wage. Seasonal Workers Not entitled during off season Workers who have no regular working days Entitled. Computation of Work Days (R. Quan Notes) Days in a year 365 Less: Saturdays (52) Equals 313 Less: Sundays (52) Equals 261 Add: 10 legal holidays 10 Total work days 271 Take note: Book III, Rule IV, Sec. 2 presumes that you are working the whole year. Computes monthly (365 / 12). So what happens is: 365 + 10 = 375 work days. The SC nullified Sec. 2 in the IBAA case.
Lecture: August 21,2008 Regular Holiday Unworked 100% Worked 200% Example: Wednesday has 2 holidays in one day Unworked 200% Worked 300% 100% - Holiday 1 100% - Holiday 2 100% - Work
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Are teachers entitled to regular holiday pay during Semestral breaks? No Seasonal employees during breaks? - No How about project employee? - No Look at Sec 8(b): (b) Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. This section made a differentiation of pakiao and piece rate. Compare this with Art 82. Are workers paid by result entitled to holiday pay? Art 82 gives an opening for workers paid by result to be entitled to holiday pay if determined by Secretary of Labor. However, Sec 8(b) does not determined this. So what is the rule? Supposing the Sec of Labor makes a determination that piece rate workers should be entitled to holiday pay, is this valid?
Whats the difference between employing one to make a skirt (P10/skirt) and to stitch a sleeve on a blouse (P1/sleeve)?
Muslim Holidays How many holidays do they have in Muslim areas? - 5 Who are entitled to the 5 Muslim holidays in Muslim areas? - Muslim and Christians alike located in that area. For example a Muslim is living in a non-Muslim area. Would he be
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Art. 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 five 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 of 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 and Employment 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. POQUIZ NOTES Purpose - to afford a laborer a chance to get a much needed rest to replenish his worn out energies and acquire new vitality to enable him to efficiently perform his duties, an not merely to give him additional salary or bounty. The LC provides a 5 day service incentive leave (SIL) with pay for employees who have rendered at least one year of service which may be used as vacation or sick leave. If unused at the end of the year, this benefit is convertible to its cash equivalent based on the salary rate at the date of commutation. This is without prejudice to what is stated in the CBA. Note that there is no law that makes the grant of vacation leave and its benefits mandatory on the part of management. Claim for it can only be availed through agreement. However, vacation and sick leaves when accorded by employer becomes a matter of right and not mere privilege on the part of the employees. at least one year of service service within 12 mos. whether continuous or broken reckoned from the date the employee started working, including absences and paid regular holidays, unless the
Exempted Employees (Compare with R. Quan Notes) 1. Government employees 2. Employees of retail and service Establishments regularly employing less than 10 workers. 3. Managerial employees 4. Officers and members of managerial staff 5. Field personnel and other employees whose time and performance is unsupervised by the employer 6. Members of the family of the employer who are dependent on him for support 7. Domestic helpers 8. Persons in the personal service of anothe 9. Workers who are paid by results, including those who are paid on piecework, takay, pakiao, or task basis, purely commission basis or those who are paid fixed amount irrespective of the time consumed in the performance thereof. 10. Those enjoying vacation leave with pay of at least 5 days. Lecture: August 28, 2008 Including those employing less than 10 workers? No that is an exception, provided by law. Do you have to serve a year first before being entitled to this? YES! Example #1: I am your employer, I gave you seven (7) days instead of five (5) days of SIL. The union complained. Can it be subject to review?
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Lecture: August 28, 2008 Why is management given 15%? To answer for repair or maintenance. Managerial or Management? Article refers to Management. However Sec 3 Rule 6 speaks of managerial employees Reminder: For Labor Standards always read the IRR. 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. What are Managerial employees under Art 212(m): is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. Note under this section a supervisor is not a managerial employee, nor is he rank-and-file. There is no provision explicitly speaking of supervisors as part of managerial employees. Is an assistant supervisor a supervisor? Yes. A head waiter does not supervise so where will he share? There are employees who are considered managerial staff but do not supervise anybody. SO they should, by classification be considered rank and file employee. Service charge is an old law, existed prior to 1981, prior RA6715. RA6715 amended definition of managerial employees (212(m) and 245). Before the amendment the definition included supervisors. The
Art. 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. POQUIZ NOTES This applies only to business establishments collecting service charges (hotels, restaurants, lodging houses, night clubs, bars, massage clinics, casinos, cocktail lounges, and the like) All employees are covered, regardless of their position, designation, employment status, irrespective of how their wages are paid, except managerial employees. (IRR) The 15% shall be disposed by the management to answer for the losses, breakages and for distribution to managerial employees, at the discretion of the management in the latter case. Distribution and payment of shares shall be done not less than once every two weeks or twice a month at intervals not exceeding 16 days. (IRR) In case the service chare is abolished the share of the employee shall be considered integrated in their wages. (IRR) Despite the increase of salaries due to COLA integration, covered employees are still entitled to service charges. Note that E.O. 178 provides for non-diminution of benefits. (page 210 of Poquiz) Advantage of the law Highly paid employees are excluded from the benefit. Those entitled will benefit equally from the service charges, unlike before when those receiving higher salaries were getting more service charges
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grade
of
Art. 97. Definitions. As used in this Title: a. "Person" means an individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons. b. "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all governmentowned or controlled corporations and institutions, as well as non-profit private institutions, or organizations. c. "Employee" includes any individual employed by an employer. d. "Agriculture" includes farming in all its branches and, among other things, includes cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. e. "Employ" includes to suffer or permit to work. f. "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
Wage remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on 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 Sec of Labor and Employment board, lodging, or other facilities customarily furnished by the employer to the employee. Twin Attributes Cash Wage takes the form of ready money paid by the employer to the employee for services rendered by the employee. Facilities articles or services customarily given for the benefit of the employee and are voluntarily accepted by him. Fair and reasonable value Shall not include any profit to the employer or to any person affiliated with the employer. Facilities Includes articles or services customarily given for the benefit of the employee and his family such as rice ration, housing, recreational facilities, medical treatment to dependents, school facilities, cost of light, water, fuel, etc. (Atok Big Wedge Assn v. Atok Big Wedge Co) When it is for the benefit of the employers business it is not facility. For cost of facilities to be charged against an employee, it is necessary that he must receive the benefits and his written acceptance of such facilities are voluntary Legal Requirements
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When Bonus is a demandable obligation When it is part of wage or salary Result of a CBA Given on account of company policy Mandated by law Bonus treated as part of wage Employer promised and agreed to give such without any condition It has ripened into practice through the passage of a considerable length of time and has consequently become a part of the terms and conditions of employment or by virtue of its long and regular concession. This must be based on a long period, consistent and deliberate However, if the employer suffered business losses, it is not obliged to pay such benefits (TRB v NLRC, 190 SCRA 274)
Q: Can the employer immediately deduct the value of facilities from employees wages? (R. Quan Notes) NO. An employer must observe certain legal requirements before deducting the value of facilities from the employees wages. These requirements are: a. Proof must be shown that such facilities are customarily furnished by the trade; b. The provision of deductible facilities must be voluntarily accepted in writing by the employee; and c. Facilities must be charged at a fair and reasonable value. Lecture: August 21, 2008(repeat) Example # 1: Pedro works in a factory in Mandaluyong and he lives in Cavite. He is always late in the morning because of traffic etc. Due to this, his salary is lessened according to the hours of work he misses. Seeing that his employer has a nippa hut, he asks him if he could live there instead so he wont be late. The employer agrees and offers the place for 2k. Pedro agrees to the terms and he starts living in the nippa hut. Question: Is this facility or supplement?
Discussion on 13th month pay in this article is not included here. Check page 219 -222
Productivity Bonus Tied to productivity or profit generation of the employer Not directly dependent on the extent Sales Commission Paid upon the specific results achieved by salesman-employee. Intimately related to or directly
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Lecture: August 28, 2008 Does 97(f) in determination of what wage is include profit? -- No. Art. 98. Application of Title. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needlework or in any cottage industry duly registered in accordance with law. POQUIZ NOTES Title II Book II does not apply to the following: Farm Tenancy Domestic Helpers Persons in the personal service of another Homeworkers engaged in needlework Workers of duly registered National Cottage Industries and Development Authority provided they perform the work in their respective homes. Workers in duly registered cooperatives when recommended by the Bureau of Cooperative Development (page 223) Lecture: August 28, 2008 Situation: Lets say A (landowner) says to B: Under the land reform law you are entitled to 3 ha. I am giving you 10 ha. Supervise the cultivation of the 10 ha. I will pay for the expenses. We share in the profit 50/50. Is the share of the tenant considered a wage? Note: H e is no longer a tenant in this situation. Art. 99. Regional minimum wages. The minimum wage rates for
September 2, 2008 Used to be that the minimum wage was fixed on a nationwide basis. The minimum wage in NCR was the same as those in the provinces. This law recognizes the need for different minimum wages per area. This is delegated to the Regional Tripartite Wage and Productivity Boards.
Art. 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. Lecture: September 2, 2008 Does this include all kinds of benefits or wages also? How about separation pay? How about retirement pay? Suppose at the time of the promulgation of this code the company had an existing retirement plan. However the company was suffering from losses and decided to retrench. The union offered that they would surrender a lot of the benefits as long as the company does not retrench. What good would the benefits be if we are no longer employees of the company? So both parties agreed. Later on one employee files a claim that the employer is liable under this provision. Decide. TSPIC Corp v TSPIC Union, Feb 13, 2008 Diminution of benefits is the unilateral withdrawal by the employer of benefits already enjoyed by
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Art. 101. Payment by results. a. The Secretary of Labor and Employment shall regulate the payment of wages by results, including pakyao, piecework, and other non-time work, in order to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and employers organizations. Lecture: September 2, 2008 Subject matter here is payment of wages by result. Difference between piece rate and pakiao only working on a sofa its pakiao. In situations where you are being paid pakiao or piece rate you have to get the median. Connect time and motion study and payment of wages. Let us say A finished work in 8 hours, B finished the same task in 4 hours, while C finished the same task in 1 hr. How much is the wage due to each? - You should look at the vicinity of 1 hour to 4 hours. You get the median. Tie this with Art 82. It says, those paid by results are not covered by book III title I. (working conditions, rest periods etc.) You cannot apply provision of overtime pay to those paid by result. But it does not mean that those paid by results do not enjoy certain degree of benefits. In book III title II, they are covered. Art. 102. Forms of payment. No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets,
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Art. 111. Attorneys fees. a. In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent of the amount of wages recovered. b. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorneys fees which exceed ten percent of the amount of wages recovered. Lecture: September 16, 2008 Courts cannot award more than 10% in both instances (a & b) Who is this awarded to? Lawyer? Or to the complainant? This is awarded to the complainant. Can it be awarded directly to the lawyer? -- No. Can it be awarded to the employer or the respondent? No. This is because we are talking about the employees benefit. Remember this is under labor standard benefits and not benefits of the employer. Therefore, this cannot be the basis of the award of atty.s fees to the employer. Note that the basis of the attys fees is the unlawfully withheld wage. If the employer wins the case then there would be no unlawfully withheld wage, thus no basis to award attys fees. However, attys fees may be awarded to the employer but the basis will not be Art 111(a) but ROC. The ROC applies suppletory to NLRC rules. Art 111(a) refers to extraordinary which is the fee awarded to the winning party against the culpable party. Art 111(b) refers to ordinary, but still is subject to regulation, in that the
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Reyes v CA August 15, 2003 In Traders Royal Bank Employees Union-Independent v. National Labor Relations Commission, it was held that there are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary. In its ordinary concept, an attorneys fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client. In its extraordinary concept, attorneys fees are deemed indemnity for damages ordered by the court to be paid by the losing party in a litigation. The instances where these may be awarded are those enumerated in Article 2208 of the Civil Code, specifically par. 7 thereof which pertains to actions for recovery of wages, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. The
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xxxx (d) To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in accordance with prescribed guidelines and national development plans; xxxx (f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans; (g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards; x x x x(Emphasis supplied)
Under the doctrine of primary jurisdiction, courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise
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If the following are receiving: A: P410 B: P390 C: P382 Note the wage gap between C and B is P8.00 while B and C is P20.00. The wage gap between A and C is P28.00. With the new wage increase all of a sudden the wage gap of P28.00 between A and C protracted to P8.00. (Severe Contraction) This is a case of wage distortion. In the case of B and C, the wage gap of P8.00 is eliminated. (Elimination) Depending again on the ceiling or floor wage or salary ceiling method. In salary ceiling method, the ceiling is set. For example, you have now P382.00. The wage order says, that the minimum wage will be increased to P400.00. So using the salary ceiling method, only those whose salary are below P400.00 will receive the increase. In floor wage method. Your P382.00 as the case above, is increased by P20.00/day. So here the floor wage is increased by P20.00. So it is now P402.00. Wage distortion takes place in two instances: 1. Severe contraction (go back to 1st example) 2. Elimination When there is an across the border increase, there is no wage distortion that takes place. This is due to the fact that everyone is given a wage increase. It can also be a mixture of the ceiling and floor wage. You have to take a look at the wage order to distinguish which was adopted. Remedy in cases of wage distortion. Look at the set up of the company. 1. If the company has a CBA, a subject of such agreement is the grievance machinery. The grievance machinery says that you have to discuss the problem first at the first level. Eventually, the unsolved grievance will be submitted to voluntary arbitration. But this is the only voluntary arbitration which is compelled by law. (seen as compulsory arbitration). The decision
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Nature
No dismissal yet. (EER exists) DOLE Secretary (found in Rules) Jurisdictionally required Within calendar (Rules) 10 days
Complaint Inspection done upon complaint EER no longer exists but no claim for reinst. NLRC Art. 159 Not required 5 days
EER exists and there is a claim for reinst. NLRC Art. 223 Necessary to perfect an appeal (Art. 223) 10 days (Art. 223)
You all know that once jurisdiction is acquired, it is continually exercised till the termination of the case. So if a complaint is filed with the DOLE Regional director, he exercises original exclusive jurisdiction. SC said that there is no difference between Art 128 and Art 129 inspite of the reference to the labor arbiter. Art. 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 househelper under this Code, arising from employeremployee relations: Provided, That such complaint does not include a claim
Original Jurisdiction
DOLE
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Example #2: Son of the president of a school offers a promotion to a professor he likes for a one night stand. Is there sexual harassment? Yes. The element of influence is present and it occurred in an educational institution. It is not necessary that it always be for a sexual consideration. Take note that as long as there is intimidation or coercion it may be punished under this act. Philippine Aeolus Automotive United Corporation v NLRC April 28, 2000 As to the Nature of Sexual Harassment Anxiety was gradual in private respondent's five (5)-year employment. It began when her plant manager showed an obvious partiality for her which went out of hand when he started to make it clear that he would terminate her services if she would not give in to his sexual advances. Sexual harassment is an imposition of misplaced "superiority" which is enough to dampen an employee's spirit in her capacity for advancement. It affects her sense of judgment; it changes her life. If for this alone private respondent should be adequately compensated. Thus, for the anxiety, the seen and unseen hurt that she suffered, petitioners should also be made to pay her moral damages, plus exemplary damages, for the oppressive manner with which petitioners effected her dismissal from the service, and to serve as a forewarning to lecherous officers and employers who take undue advantage of their ascendancy over their employees.
As to the time to file a sexual harassment case Strictly speaking, there is no time period within which he or she is expected to complain through the proper channels. The time to do so may vary depending upon the needs, circumstances, and more importantly, the emotional threshold of the employee.
Batbunbon (?) v NLRC an employee cannot be administratively disciplined for violation of the sexual harassment act as the act was committed prior to the effectivity of the company rules implementing the sexual harassment act. Remember, that all the employers were required to come up with rules implementing the anti-sexual harassment act.
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Lecture: September 25, 2008 Example #1: Labor technician paid P1,000.00/day at 26 working days. Hired June 1, 2008 Dismissed July 1, 2008. In this case, he has only 26 working days. It is the IRR that says that for you to be entitled you must have worked one month. But the law itself does not state that. In this case it would appear that he is not entitled to 13th month pay. The law speaks of one month during a calendar year. Provided that they have worked at least one month for a calendar year. How many months in a calendar year? There are 12 calendar months in a calendar year. In 2008, a calendar month you have June, and June 1-30. That is the essence of a calendar month. Approaching it from the principle that let not one man unjustly enrich himself from another: If you have 4 Sundays x 12 = 48 + 48 Saturdays = 96. One year has 365 days 96 = 269 days Following the proposition the 26 work days is not one month then at the end of the year, to complete one year the employee must have worked for 365 + 96 days. Here is a provision that has not been put to test yet. J. Veloso I am sure that a lot of employers say that you are not entitled to 13th month pay because you have not worked for a month. You cannot be expected to work on a day which is not a scheduled day of work. So you have 12 calendar months and you earn 26k a month
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18, 1987 - the SC said it is equivalent to 13th month pay. How about cash and stock dividends, cost of Living allowance and other allowances, are they included or not? No. Look at the regularity of it. Employees paid on commission basis, are they entitled to 13th month? If they are paid purely on commission then NO. If they are paid partly commission then YES. Basis is always 1/12th of the basic salary. The law excludes those paid on cash basis. Overtime pay not regularly received, night shift differential pay not regularly received. Holiday pay is also not a part of basic salary. How about Sales Commission? Philippine Duplicators says it is because they are regularly received. But Productivity Bonus not part of the basic pay. In Marc Copper Mining Corporation, the SC said that even if the CBA says employees are given a certain amount of bonus which is different from 13th month. The employer must comply with the PD 851 because the benefit under the CBA is contractual while the benefit under PD 851 is statutory. Elena W v Vera (?) - La carlota sugar central case. In contrast with the Marc Copper case, the demand for compliance to PD 851 was already a demand for 15th month pay. Philippine Refinery In this case they invoked the Vera case. However, in that case, they were paying the bonuses before PD 851 was promulgated, so they were exempt. The law says, those who ARE PAYING other bonuses equivalent to 13th month are exempt. NOT those who will be paying in the future. So the reckoning date is 1975. PD 851 is a labor standard law. It is subject to CBA and voluntary grant. Universal corn products v NLRC, August 21, 1987 Both the CBA Bonus and 13th month pay is not equivalent to the 13th month pay in PD 851. Kamayan Point Hotel v NLRC August 21, 1989 (contra to the Universal corn case) The SC said the employer was exempt from paying the 13th month pay. If asked in the bar: look at the reckoning point. If the CBA benefit came after 1975 it cannot be considered as an equivalent to 13th month pay but rather an improvement. However, if it was provided for before 1975 and the CBA and was merely renewed in the present CBA negotiated, then it continuous to be equivalent to the 13th month pay
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