Labor Post Midterms Notes

LABOR LAW I Justice Veloso
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
DJC Notes 3D | 08-09

Government employees employed by the National Government or any of its political subdivisions including those employed in government owned and controlled corporations. These employees are governed by the Civil Service Law. There is a distinction between a corporation organized pursuant to a charter or special law and corporations not directly chartered or created by special law but were acquired or taken over by corporations created under a special law. The latter is governed by the labor code. The process of determination is known as the original charter test or manner of creation test. Managerial Employees they refer to those who meet the following conditions: 1. Primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; 2. They customarily and regularly direct the work of two or more employees therein. 3. They have the authority to hire or fire other employees of lower rank. Note that managerial employees exercise independent judgment and discretion. They are not subject to the rigid observance of regular office hours. Their service depends on the results of their accomplishment.
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

other higher executives of the company. They are not entitled to overtime pay. labor provisions. If they are covered, it might cause family problems.
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

staff are not covered under Art. 212(m). Field Personnel - Crux here is the determination of his hours of work. His hours of work cannot be determined with reasonable certainty. However, if he is supervised, his hours of work can be determined. John Mcleod v NLRC Jan 23, 2007 John was considered a managerial employee because he was a Vice President of the company as well as plant manager. The SC held that such is excluded from Book 3 Title 1. Note that Article 82 speaks of the coverage of the entire title I. Title I has three chapters: Hours of work, rest periods, holidays etc. Field Personnel what counts is the determination with reasonable certainty of the hours of work. Far East Agricultural Supply Inc. v Lebatique February 12, 2007 - it was held that Lebatique was a supervised company driver. When you concede that the work is supervised, then the alleged field personnel hours of work can be determined. He was required to report for work depending on availability. He is therefore not a field personnel. Domestic Helper - cross reference to article 141. A Domestic Helper is not really a family employee but household employee. Driver is considered domestic helper even if his place of work is outside the house because he serves their household. Article 94 limited sections. The benefit of regular holiday pay does not apply to certain people. A supervisor is he covered or not by title I? Pearanda v Bangaga Plywood Corp May 3 2006 His worked involved overseeing operation of machines and the performance of the workers in his section. He is a managerial employee being a member of the managerial staff. He is a supervisor under Article 212(m) but he is a managerial employee under Article 82. Therefore, he not covered by Title I of Book 3.

psychologists, midwives, attendants and all other hospital or clinic personnel. Breakdown of the Code 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. POQUIZ NOTES: Normal hours shall not exceed eight hours a day. A day shall mean a workday of 24 consecutive hours beginning at the same time each calendar day Week workweek of 168 consecutive hours, or seven consecutive 24hour workdays, beginning at the same hour and on the same calendar day each calendar week. Employer may however, reduce the number of working hours provided that there is no concomitant reduction of pay. This is a management prerogative. Health Personnel Includes: resident physicians nurses nutritionists dietitians pharmacists social workers laboratory technicians paramedical technicians psychologists midwives attendants and all other hospital or clinic personnel
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,

Purpose of the law to protect the health of workers to assure adequate leisure to workers in order to enable them to lead richer or more fruitful lives and to participate intelligently in public concerns to spread employment, for the employer is constrained to adopt eighthour shifts. Compensable Hours: (DSWP) (R. Quan Notes) Employee has been on Duty Employee has been Suffered to work Made to standby a particular Workplace Employee was Permitted to work Counted as Working Time - Integral part of work / required - Engaged by the employer to wait - Required to remain on call in employers premises or close so that he cannot use the time effectively for his own purpose - Compensable Except - Kept w/in through cell phones or other contact devices but must remain w/in a certain geographical area

week. (San Juan De Dios Hospital Employees Association v NLRC) When you talk about regular hours of work it does not include lunch break. Is a Resident Physician covered? Under Article 83 he is. However in Felix v Buenaseda November 24, 1993 a resident physician being a trainee is neither here nor there. He is not necessarily an employee as he is a trainee. The case states: A residency or resident physician position in a medical specialty is never a permanent one. Residency connotes training and temporary status Purpose: to safeguard health of the employee, so that he is not compelled to work on the 9th or 10th hour. That is already overtime. One cannot be compelled to work overtime.
Waiting time
Subject to call
Trainings, Programs, Lectures, Meetings, Meal time
- Voluntary Attendance - Employee does not perform any productive work during attendance
- Required by the employer - Taken for the employers benefit
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

the regional minimum wage. This is valid when they work for less than 8 hours like 7hours or 6hours. There is no law requiring the workers to work minimum of 8 hours. You have to render overtime work in order to enjoy overtime pay.

Duty When is one supposed to be on duty? Does he have to be in the workplace? Can he be on duty while at home? Example 1: If the boss says to you, his employee, I dont have internet at my place. Stay at home and monitor this transaction online. Is this compensable? Lets say he did not check up on you and monitor your work? Yes, not in the workplace but was permitted to work. Example 2: A security guard caught sleeping for three hours, the employer says that he will cut out the salary for the three hours. Is that allowed? Are those three hours compensable? Yes, compensable, because you were at the very least suffered to work. However, this does not mean that he will not be punished. This is Gross neglect. If this becomes habitual then this may be a ground for dismissal. But he will still be paid for hours he was there. Example 3: Secretaries in a law firm, did not do any work for the whole 8 hours. Only chizmisan. Compensable? Yes, compensable, at the very least suffered to work. NOTE: In a case where you reported to work, however, you did no work at all for all 8 hours, such hours are compensable. Why? Because the least you can say was you were suffered to work. Art. 85. Meal periods. Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. POQUIZ NOTES Coffee breaks running from 5 to 20 minutes are considered as compensable working time. Employer can reduce to 20 minutes in the following: Where the work is non-manual in nature or does not involve strenuous physical exertion Where the establishment regularly operates not less than 16 hours a day In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installation to avoid serious loss which the employer would otherwise suffer; and Where the work is necessary to prevent serious loss perishable goods.
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.

Lecture: August 19, 2008 Example: If you have only 59 minutes of mealtime and not 60 mins what happens? Example: Where a broadcaster who was supposed to take a break for lunch but since one was absent and there was a need for him to fill in his place. So he was working during his lunchtime. Is it compensable? Yes. He was permitted to work. Note: there is no such thing as work time. What we have is compensable time. Article 84 and 85 should be read together. If you were given a meal period of 60 minutes that is not compensable. Less than 60 minutes mealtime, that is compensable. Rendering work is another matter. 9.

Workers who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
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

the compensation equivalent to his rate for the first eight hours of work for the holiday or rest day, he shall receive additional 30% of such compensation: Basic wage x 169% = Overtime on Rest day or Holiday

If this is made to apply it would frustrate the purpose of the law indirectly. Overtime Work This is work rendered in excess of the normal working hours of eight in a day.
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)
Check page 187 of Poquiz for more cases.

Right to claim overtime pay not waivable While the workers did not claim overtime pay until the commencement of the litigation, still the law gives them the right to claim overtime compensation and they could not be held to have impliedly waived such extra compensation for the obvious reason that they could not have expressly waived it. (Manila Terminal v CIR; Mercader v Manila Polo Club) Overtime pay being in the category of benefits is governed by law not by agreement of the parties. Thus, the right to collect cannot be waived. Exceptions to the GR that right to overtime pay is not waivable (R. Quan Notes): When waiver is in consideration of benefits and privileges which may be more than the OT pay Voluntarily agrees to work 9 hours No diminution in pay Value of benefits equal to or greater than 1hr. OT pay during weekdays OT pay due and demandable even if permitted to work Saturdays Work doesn't involve strenuous physical exertion Temporary duration Principle of estoppel and laches not applicable
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

month. Monthly salary multiplied by 12 and divided by actual days you are supposed to work during the year. If the company operates from Monday to Saturday, actual days supposed to work is 26. So lets say you: Salary: 10k 10k = 384.62 daily wage 26 384.62 = 48.08 hourly rate 8 Burden of proof for OT pay is on the employee, for local workers. Acua case it is the employer or agency that suffers the burden of proving that the worker did not render OT work for migrant workers. The reason for this is the employee cannot easily get the documents needed to prove that he had rendered OT. So the burden is shifted to the agency or employer to prove that the worker did not render OT as the documents are under their control.

Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases: a. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; c. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; d. When the work is necessary to prevent loss or damage to perishable goods; and e. 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. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter. POQUIZ NOTES Compulsory overtime work An employer may require his employees to work beyond the 8 hours in the following instances, provided they are paid additional compensation for overtime work: CCUNNN First: C When the country is at war or When any other national or local emergency Has been declared by the National Assembly or the Chief Executive Second: C 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.
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.

Third: U When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; Fourth: N When the work is necessary to prevent loss or damage to perishable goods Fifth: N When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; Sixth: N When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. Note: In cases not falling within any of the above instances, no employee may be made to work beyond 8 hours against his will. If the worker willfully refuses to perform overtime work in any of the above instances he may legally be dismissed as this would be an act of insubordination. Also considered as the highest form of disloyalty against the country if such work is needed to meet a national emergency. (Opinion of the Secretary of Labor, 21 March 1969) Lecture: August 21, 2008 Ilaw at Buklod ng Manggagawa (IBM) v NLRC, June 27, 1991 The facts are these: The workers had 3 shifts of 8 hours each however, the IBM Union found it more beneficial to have 12hours of two shifts and requested for the change. The reason given by the union was that after they ended their 8 hour shift they would encounter traffic problems. Subsequently, a minimum wage order was passed in NCR. IBM as well as the other members of the union said that they wanted to forgo of voluntary arbitration and demanded that they be compensated for overtime pay or else they would not work beyond 8 hours. Issue: Can the workers be compelled to render overtime work? Position taken by union was that they cannot be compelled to render OT work because the situation was not contemplated in

Article 89. Labor Arbiter (Justice Veloso): They are compelled to work overtime. When you speak of compulsory overtime, refusal shall be made individually. But when it is done by mass, such refusal constitutes temporary refusal to render work as a result of an illegal strike. Note that you should cross refer Compulsory overtime with Art. 212. IBM was guilty of illegal strike, they did not comply with the requirements of strike. When you speak of Art 89, take this to mean that refusal to render work should be done individually. A mass refusal (same ground, at the same time) would be considered as a strike. When work schedule has been adhered to for a long period of time that schedule becomes an exception.
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

cash wage. Look at Art. 97(f) wage is not limited to cash, but it includes facilities. Facility includes those articles or services of benefit to the employee and his family such as rice ration, housing, recreational facilities, medical treatment to the dependents, school facilities, cost of light, water, fuel, etc. (Poquiz) This is cash wage only but it says dont deduct facility, but if you dont deduct facility how can it be cash wage So there is a clash between 90 and 97 This was not clarified by the implementing rules. 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? This is Facility as this is for the benefit of the employee. The trigger is the employee as he sought for it. Note: the fact that the employee sought for the benefit is a cue that it is a facility. Example #2: Employer is fed up with Pedro always being late. So he offers Pedro his nippa hut to stay in. Is this supplement or facility? This is supplement. This is because this time the trigger is the employer. It is now for his benefit. So based on these examples: assuming that the minimum wage is 8K/mo. Facility is 2k. So cash wage would be 6K. When Art. 87 says regular wage and Art. 90 says regular wage is only cash wage you only need to base it on 6K. But does this not amount to diminution of benefit? Remember facility has a cash component. Why is this based then only on 6k? Sir says that this is a good topic for thesis. Remember: you have to reconcile Art. 87, 90, and 97. J. Veloso: I disagree with this because, an employer is allowed to include facility in computation of whether or not he is complying with minimum wage. Why should it not be included now in computation for OT pay and night differential? Art. 97(F) speaks of wage includes cash and facilities (cash and kind) Art. 90 speaks of cash wage of course there is a

provision there that states: without deducting facility. But how can you speak of cash wage without deducting facility? This would contemplate two situations: It could mean for purposes of computing OT you would not deduct facility and you would base it on 8k. However, in this case, you are no longer speaking of cash wage. You are now talking about wage. Yet A rt 90 says cash wage only. So there is actually a clash between Art. 90 and 97(f) It could also mean, that cash wage being 6k, you would not further deduct facility (meaning you will NOT base it on 4k). So, you compute OT pay based on 6k. That is why this is a good thesis topic.
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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Lecture: August 21, 2008 Example: Employee works for 3 days only per week. There is no consecutive 6 days of work. Can the employee still demand for a rest day? No. He already has 4 rest days. He cannot demand for more. The purpose of the law is that you are given 1 24 hour consecutive rest day. That is why Art 91 speaks of 6 consecutive days. Because if it speaks of 5 days then you already have a rest day. A rest day is not compensable unless you worked on that day. If an employee is to work on a rest day then Art 93 is applicable. Work on a rest day when it is also a holiday 230% Nature of work requires continuous operations Analogous situations
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
11

compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employees scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage. d. Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. POQUIZ NOTES Premium pay a.k.a. differential pay is an additional pay granted to a covered employee for services rendered on holidays or rest days. It is a form of punitive pay for it was intended to punish the employer who made extra demands on his employees and encourage him to schedule his operations more carefully. An employee is entitled to premium ay for work performed on Sunday when it is his established rest day. Note: Sunday is an ordinary working day. Exceptions to this Rule 1. Government employees 2. Managerial employees 3. Officers and members of managerial staff 4. Non-agriculture field personnel 5. Domestic helpers 6. Persons in the personal service of another 7. Workers who are paid by result or on piece work. Look at page 197 of Poquiz for the Rates. Premium Pay For Work On Rest Days / Special Days (R. Quan Notes) Rest Day - 30% Special Day - 30% (Aug. 21, Nov.1 & Dec. 31) Rest Day falls on Special Day - 50% Note: For special day: NO WORK, NO PAY Lecture: August 21, 2008 Work on a rest day when it is also a holiday 230% (93(b) and 94(c)) Special Day 130 % (94(c)) 13th month pay is not included in computation of rest day pay.

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; b. The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and c. As used in this Article, "holiday" includes: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election. POQUIZ NOTES Holiday has reference to a day set apart for worship, reverence to the memory of a great leader or benefactor, to rejoice over some great national or historical event, or rekindle the flame of an ideal. Legal Holiday a day designated or set apart by the legislature, for purpose within the meaning of the term holiday in order to commemorate an important event. Holiday pay - form of premium accorded to an employee who does not work on regular holidays. Purpose of Holiday Pay To secure payment of undiminished monthly income undisturbed by any work interruption (JRC v NLRC, et. al., GR 65482, 1 December 1987) HP is primarily aimed at benefiting the daily-paid workers whose income is circumscribed by the principle of no work, no-pay. Prior to the LC monthly paid workers do not suffer any reduction for not working on a holiday, while daily wage workers dont get paid when there is a holiday. The law on HP is thus conceived to be the countervailing measure to partially offset the disadvantages inherent in the daily compensation system of employment. Regular holidays New Years Day Maundy Thursday January 1 Movable Date
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Good Friday Eidul Fitre Araw ng Kagitingan Labor Day Independence Day National Heroes Day Bonifacio Day Christmas Day Rizal Day Special Holidays All Saints Day Last day of the year Regular Holidays A covered employee who does not work is paid 100% of his regular wage If the covered employee reports for work he is entitled to 200% of his regular wage. Movable Date Movable Date April 9 May 1 June 12 Last Sunday of August November 30 December 25 December 30 November 1 December 31 (RA 9177) Special Holidays A covered employee who does not work is not paid under the principle of no work no pay. If a covered employee reports for work he is entitled to not less than 130%. If this is a rest day also he has to be paid at the least 150%. (page 200)

Also a Rest Day Basic Basic
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
100% 200 % 260 %
Premium Premium Overtime
Worked Basic Basic
x x
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Villuga v NLRC, August 1993 An employee uniformly paid by the month is not excluded from the benefits of holiday pay.
Monthly paid employee Salary includes payments for every day of the month although he does not regularly work on his rest days, Sundays, regular and special holidays. Daily paid employee Paid on the days he actually worked except unworked regular holidays when he is present or on leave of absence with pay on the working day immediately preceding the legal holiday. machineries) RH during cessation of operations due to business reverses

Not Entitled
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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Look at IRR Book III Rule IV Sec 4 It says 200 % of regular daily wage. So what is 200%? Is it not 400% for work in a day where there are 2 holidays? If you are saying 300 only then you are making 1 regular holiday noncompensable. Correct answer then is 400% on a day worked with 2 holidays Would you agree that since we have 10 regular holidays we actually have 375 compensable days? Assuming you are a monthly paid employee, receiving your whole salary without deduction of days you were absent? Yes. Check IBAA ruling & Nestle Case. Lecture: August 28, 2008 Is it legal to move the regular holiday to a date closer to a weekend? By what authority of law is it legal or not? Yes it is. There is a law which allows this. There are: 365 (number of days in a yr) -52 (Sundays) 313 -52 (Saturdays) 261 Example: An employee was hired to be paid on a monthly basis, which means that he will be paid all throughout the days of the year (Monday Sunday) minus the day he will be absent. Lets say he does not work on Saturdays or Sundays. Will he be entitled to holiday pay, falling within the month? Yes, legal basis is Article 94. Book III Rule IV Sec 2 of the IRR: SECTION 2. Status of employees paid by the month. 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 paid for all days in the month whether worked or not. For this purpose, the monthly minimum wage shall not be less than the statutory minimum wage multiplied by 365 days divided by twelve. This was nullified by the SC in some rulings. One of which is the IBA en banc ruling. It stated that they

were entitled to holiday pay. However, in San Miguel Corp v Del Rosario Dec 13, 2005 SC cited sec 2 saying that the claimant was not entitled, pursuant to sec 2 rule 4. But note, this is not an en banc case.
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?
What is the difference between pakiao employee and piece-rate employees?

Pakiao (takay or task basis) Emphasis is on the task itself, in the sense that payment is not reckoned in terms of numbers of unit produced, but in terms of completion of the work. Piece-rate Emphasis is placed on the unit of work produced or the quantity thereof, which uniformly earns a specific amount in terms of labor cost.
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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entitled to the same number of holidays as he would be entitled to if he was residing in a Muslim area? He will be entitled to the same number of holidays as if he was staying in a Muslim area (PD 1083). not finalized! Take care of this daw on our own. (issue is that PD 1083 mightve been repealed already.) RA 9177 enumerates the number of holidays entitled to Muslims

working days in the establishment as a matter of practice, policy or provided for in contract is less than 12 months, in which case the period shall be considered 1 year. SIL is commutable to its money equivalent if not used or exhausted at the end of the year based on the salary rate at the date of commutation. Davao Intergrated Port Stevedoring v Abarquez, 220 SCRA 197 Economic benefits stipulated in CBA such as vacation leave benefits are, by nature, intended to be replacements for regular income which otherwise would not be earned because an employee is not working during the period of said leaves. Escosura v San Miguel Brewery, L-16696 leave with pay means that the employee is entitled to full compensation during the period of his leave absence. RA 9262, Sec 43 Victims of violence against women and children are entitled to take a paid leave of absence up to 10 days in addition to other paid leave under LC.
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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No, because the law provides the minimum only. In your computation of one year, will this include absences, authorized or unauthorized? Yes, it includes unauthorized absence. Authorized absences are not considered an absence. Can this be converted to cash? YES! Look at the davao case in pg 209 of Poquiz J. Velosos position in relation to section 3, service incentive leave, one year qualifying factor which includes authorized absences should also include non-authorized absences. It cannot be a replacement if it is limited to authorized absences.

Equal distribution is easier to compute and less susceptible to manipulation In case the service charge is abolished, workers are guaranteed continued enjoyment of the benefit through integration
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
17

amendment allowed supervisors to unionize. However now, supervisors are not managerial employees. But RA6715 forgot about service charge. So how do you reconcile? You look at the facts of the case. When you speak of service charge you reckon with article 82 not 212(m). When the secretary of labor came up with the IRR the intention was not to leave an employee hanging or deprive an employee of the benefits of Art 96. Supervisors are not supposed to receive less than rank-and-file. You have to reconcile this.

any profit to the employer, or to any person affiliated with the employer. POQUIZ NOTES Wages Applies to compensation for manual labor, skilled or unskilled, paid at stated times and measured by day, week, month or season. Indicates considerable pay for a lower and less responsible character of employment Cannot be subject to garnishment Salary Denotes higher employment.
grade
of
Suggestive of a larger and more important service. Can be subject to garnishment
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
18

Proof must be shown that such facilities are customarily furnished by trade. Customary founded on long established and constant practice connoting regularity. Provision of deductible facilities must be voluntarily accepted in writing by the employee Facilities must be charged at fair and reasonable value Acceptance must be voluntary or else it would be violative of the fundamental right of employee to the free disposal of his wage. Value of the facilities should not be more than the actual cost to the employer of the board, lodging, or other facilities customarily furnished by him to his employees. Supplements Extra remunerations or benefits given to an employee such as vacation leave pay, overtime pay in excess of the legal rate, profit-sharing benefits, sick pension, retirement and death benefits, family allowances, Christmas bonus, war-risk or cost-of-living bonuses or other bonuses other than those paid a reward for extra output or time spent on the jobs. Controlling Test - In determining whether the benefit granted is a facility or supplement is not so much with the kind of such benefit or item given but its purpose. Free meals to crew members is a supplement and not a facility. Bonus refers to payment in excess of regular or guaranteed wages. This is not demandable and enforceable obligation. It is only so when made part of the workers compensation. In the latter case, it is a fixed amount, while in the former it is contingent upon realization of profits. Where Bonus is paid only if profits are realized or if a certain level of productivity is achieved, it cannot be considered as part of wage. Productivity Bonus - something extra for which no specific additional services are rendered by any particular employer hence not legally demandable. an individual employee exerts himself Not legally demandable absent a contractual undertaking to pay it.

proportional to the extent or energy of an employees endeavors. Legally demandable as it is an integral part of such salesman basic pay.
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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This is Facility as this is for the benefit of the employee. The trigger is the employee as he sought for it. Note that the fact that the employee sought for it is a cue that it is a facility. Example #2: Employer is fed up with Pedro always being late. So he offers Pedro his nippa hut to stay in. Is this supplement or facility? This is supplement. This is because this time the trigger is the employer. It is now for his benefit. So based on these examples: assuming that the minimum wage is 8K/mo. Facility is 2k. So cash wage would be 6K. Pedro situation If it is part of his wage then facility Not part of his wage supplement

agricultural and nonagricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. (As amended by Section 3, Republic Act No. 6727, June 9, 1989). POQUIZ NOTES The compulsory payment of fair statutory wage is preventive action, not remedial for it settles the wage rate before industrial disputes arise. Purpose: To set a barrier below which wages may not fall, in order to develop competition on a high level of efficiency rather than competition on a low level of wages. Pros and Cons in the book. Lecture: August 28, 2008 Congress determines the minimum wage nationwide. The board decides regional. Congress can determine even regional but they have delegated such task to the board.
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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the employees. There is diminution of benefits when it is shown that: the grant or benefit is founded on a policy or has ripened into a practice over a long period; the practice is consistent and deliberate; the practice is not due to error in the construction or application of a doubtful or difficult question of law; and the diminution or discontinuance is done unilaterally by the employer. NOTE: While Art. 100 is under the chapter of wages, the law speaks of benefits not just wages. Manila Jockey Club, March 7, 2007 under the CBA, OT pay was not to be given to each employee, but as compensation for additional services rendered. There was a change in work schedule, which was not prohibited by the CBA, which resulted to lesser OT work and therefore a diminution of OT pay. Supreme Court said it is not diminution of benefit under Art 100.

chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement. Lecture: September 2, 2008 So it must be in legal tender? How about if paid in ATM? - This is now allowed by law with certain conditions provided in page 235 of Poquiz. Connect this with 97(f) which includes facility in wages. Facility is not in legal tender. Does that mean paying you by facility is violative of this provision? The law means that the cash component of the wage be paid in legal tender and not anything else. No violation in regards to facility, (even if the IRR says 70%), especially if the employee finds it more beneficial to him. What is important is that the employee asked for it. Art. 103. Time of payment. Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: 1. That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; 2. That final settlement is made upon completion of the work. Art. 104. Place of payment. Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions
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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to ensure greater protection of wages. R. QUAN NOTES: GR: It is not the employees responsibility to leave his workplace in order to get his wages. Such payment must be near or at the place of the business. Exceptions: Free transportation provided by employer There is deterioration of the peace and order conditions in the workplace due to actual or impending emergencies Other analogous causes, but the time spent by the employee in collecting his wages is considered compensable time Art. 105. Direct payment of wages. Wages shall be paid directly to the workers to whom they are due, except: a. In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority given by the worker for the purpose; or b. Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid. Art. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employers business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. Lecture: September 9, 2008

First must understand that the intention of the law was to put the claims of the workers as preferred claims. DBP v NLRC there is no judicial declaration of bankruptcy. There should at least be a finding b the labor arbiter in a hearing that the employer is bankrupt before Art. 110 will apply. Exception is DBP v NLRC. DBP v Sec of Labor 1999 SC said that what 110 established is not lien but a preference. Question of Sir in Exams: How can an employer avoid a preferred status of an employee in 110? Avoid bankruptcy proceeding! Phil Veterans Bank case involved a question of w/n a liquidation court can continue with a liquidation proceeding even after congress mandated the rehabilitation? -- No more!
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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lawyer is prohibited from demanding from his client more than 10% attys fees. Situation #1: In many instances, the complainant is protected by the union representative. The union representative is not a lawyer. Although, it was the in-house counsel of the union that prepared the pleadings for the complainant. The union supported the complainant in the case and it was the union representative, not the lawyer who attended the hearings under the labor arbiter. Can the union collect attys fees? No. There is a need for atty-client relationship established to be awarded attys fees. Therefore, there is a need that the representative be a lawyer. Since the union representative is not a lawyer then he cannot be paid attys fees. Note the following: A client without lawyer, no attys fees. There must be atty-client relationship. PAO is a lawyer but is not entitled to attys fees because he is already paid. Can the labor arbiter award 20% attys fees. 1st 10% to recompense, and 2nd 10% for what is provided by 111(a)? Note that 111(a) is not really to recompense the client. Do these two paragraphs in a&b refer to the same thing? Unanswered question (which he said he might ask in the finals) : What if in the agreement of the lawyer and the client was that whatever attys fees awarded to the client will be what the client will pay to the lawyer. Is this valid? And what if the agreement was that the client will only pay 50% of the awarded attys fees, is this valid?

extraordinary concept of attorneys fees is the one contemplated in Article 111 of the Labor Code, which provides: 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 The afore-quoted Article 111 is an exception to the declared policy of strict construction in the awarding of attorneys fees. Although an express finding of facts and law is still necessary to prove the merit of the award, there need not be any showing that the employer acted maliciously or in bad faith when it withheld the wages. There need only be a showing that the lawful wages were not paid accordingly, as in this case. In carrying out and interpreting the Labor Code's provisions and its implementing regulations, the employees welfare should be the primordial and paramount consideration. This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided in Article 4 of the Labor Code which states that [a]ll doubts in the implementation and interpretation of the provisions of [the Labor] Code including its implementing rules and regulations, shall be resolved in favor of labor, and Article 1702 of the Civil Code which provides that [i]n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. In the case at bar, what was withheld from petitioner was not only his salary, vacation and sick leave pay, and 13th month pay differential, but also his separation pay. Hence, pursuant to current jurisprudence, separation pay must be included in the basis for the computation of attorneys fees. Petitioner is entitled to attorneys fees equivalent to 10% of his total monetary award. PCL Shipping v NLRC, Dec 14 2006 - Here the SC quotes Reyes v CA as quoted above and goes on to state the following: In the present case, it is true that the Labor Arbiter and the NLRC failed to state the reasons why attorneys fees are being awarded. However, it is clear that private respondent was illegally terminated from his employment and that his wages and other benefits were withheld from him without any valid and legal basis. As a consequence, he is compelled to file an action for the recovery of his lawful wages and other benefits and, in the process, incurred expenses. On these bases, the Court finds that he is entitled to attorneys fees.
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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Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: a. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; b. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and c. In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. Lecture: September 18, 2008 Tie it up with 241(o) and 248(e) Art. 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: o. Other than for mandatory activities under the Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: e. To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242,

paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; Art. 118. Retaliatory measures. It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings. Lecture: September 18, 2008 Take note of this provision. This is very important. Art. 120. Creation of National Wages and Productivity Commission. There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination. (As amended by Republic Act No. 6727, June 9, 1989). Lecture: September 18, 2008 Chapter 5 is an important chapter. (Art 120-127) It is what the DOLE secretary says that followed the NWPC. Art. 121. Powers and functions of the Commission. The Commission shall have the following powers and functions: a. To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to wages, incomes and productivity; b. To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; c. To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial, or industry levels; 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; e. To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and compile data and periodically disseminate information on wages and productivity and other related information, including, but not limited to, employment, cost-of-
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living, labor costs, investments and returns; 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; h. To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the consideration of measures to promote wage rationalization and productivity; and i. To exercise such powers and functions as may be necessary to implement this Act. The Commission shall be composed of the Secretary of Labor and Employment as ex-officio chairman, the Director-General of the National Economic and Development Authority (NEDA) as exofficio vice-chairman, and two (2) members each from workers and employers sectors who shall be appointed by the President of the Philippines upon recommendation of the Secretary of Labor and Employment to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively, and who shall serve for a term of five (5) years. The Executive Director of the Commission shall also be a member of the Commission. The Commission shall be assisted by a Secretariat to be headed by an Executive Director and two (2) Deputy Directors, who shall be appointed by the President of the Philippines, upon the recommendation of the Secretary of Labor and Employment. The Executive Director shall have the same rank, salary, benefits and other emoluments as that of a Department Assistant Secretary, while the Deputy Directors shall have the same rank, salary, benefits and other emoluments as that of a Bureau Director. The members of the Commission representing labor and management shall have the same rank, emoluments, allowances and other benefits as those prescribed by law for labor and management representatives in the Employees Compensation Commission. (As amended by Republic Act No. 6727, June 9, 1989) Lecture: September 18, 2008 Art 121 is worth looking at. Especially the matter of appeal. A question may be asked: Is the DTI sec a member of the NWPC? No,

he is not but as a regional director he is a member of the regional wage board. Metrobank v NWPC 514 SCRA 316 Section 13 of the assailed Wage Order explicitly provides that any party aggrieved by the Wage Order may file an appeal with the NWPC through the RTWPB within 10 days from the publication of the wage order.[31] The Wage Order was published in a newspaper of general circulation on December 2, 1995. In this case, petitioner did not avail of the remedy provided by law. No appeal to the NWPC was filed by the petitioner within 10 calendar days from publication of the Wage Order on December 2, 1995. Petitioner was silent until seven months later, when it filed a letter-inquiry on July 24, 1996 with the NWPC seeking a clarification on the application of the Wage Order. Evidently, the letter-inquiry is not an appeal. It must also be noted that the NWPC only referred petitioner's letter-inquiry to the RTWPB. Petitioner did not appeal the letter-reply dated August 12, 1996 of the RTWPB to the NWPC. No direct action was taken by the NWPC on the issuance or implementation of the Wage Order. Petitioner failed to invoke the power of the NWPC to review regional wage levels set by the RTWPB to determine if these are in accordance with prescribed guidelines. Thus, not only was it improper to implead the NWPC as party-respondent in the petition before the CA and this Court, but also petitioner failed to avail of the primary jurisdiction of the NWPC under Article 121 of the Labor Code, to wit: ART. 121. Powers and Functions of the Commission. - The Commission shall have the following powers and functions:
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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of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. Nevertheless, the Court will proceed to resolve the substantial issues in the present petition pursuant to the well-accepted principle that acceptance of a petition for certiorari or prohibition as well as the grant of due course thereto is addressed to the sound discretion of the court. It is a well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. Art. 123. Wage Order. Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. Any such Wage Order shall take effect after fifteen (15) days from its complete publication in at least one (1) newspaper of general circulation in the region. In the performance of its wage-determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees and employers groups, provincial, city and municipal officials and other interested parties. Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof. The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed. (As amended by Republic Act No. 6727, June 9, 1989) Lecture: September 18, 2008 Read the case of Pag-asa steelworks incorporated v CA 6486 SCRA 475 Pag-asa Steelworks v CA March 31, 2006 Wage Order No. NCR-08 clearly states that only those employees receiving salaries below the prescribed minimum wage are entitled to the wage

increase provided therein, and not all employees across-the-board as respondent Union would want petitioner to do. Considering therefore that none of the members of respondent Union are receiving salaries below the P250.00 minimum wage, petitioner is not obliged to grant the wage increase to them. The ruling of the Court in Capitol Wireless, Inc. v. Bate is instructive on how to construe a CBA vis--vis a wage order. In that case, the company and the Union signed a CBA with a similar provision: [s]hould there be any government mandated wage increases and/or allowances, the same shall be over and above the benefits herein granted. Thereafter, the Wage Board of the NCR issued several wage orders providing for an across-the-board increase in the minimum wage of all employees in the private sector. The company implemented the wage increases only to those employees covered by the wage orders - those receiving not more than the minimum wage. The Union protested, contending that, pursuant to said provision, any and all government-mandated increases in salaries and allowance should be granted to all employees across-the-board. The Court held as follows: x x x The wage orders did not grant across-the-board increases to all employees in the National Capital Region but limited such increases only to those already receiving wage rates not more than P125.00 per day under Wage Order Nos. NCR-01 and NCR-01-A and P142.00 per day under Wage Order No. NCR-02. Since the wage orders specified who among the employees are entitled to the statutory wage increases, then the increases applied only to those mentioned therein. The provisions of the CBA should be read in harmony with the wage orders, whose benefits should be given only to those employees covered thereby. (Emphasis added) Art. 124. Standards/Criteria for minimum wage fixing. The regional minimum wages to be established by the Regional Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general wellbeing of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following: a. The demand for living wages; b. Wage adjustment vis--vis the consumer price index; c. The cost of living and changes or increases therein; d. The needs of workers and their families; e. The need to induce industries to invest in the countryside;
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f. Improvements in standards of living; g. The prevailing wage levels; h. Fair return of the capital invested and capacity to pay of employers; i. Effects on employment generation and family income; and j. The equitable distribution of income and wealth along the imperatives of economic and social development. The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying with industries, provinces or localities if in the judgment of the Regional Board, conditions make such local differentiation proper and necessary to effectuate the purpose of this Title. Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office, an itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages. Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration. In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration. The pendency of a dispute arising from a wage distortion shall not in any

way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or wage order. As used herein, a wage distortion shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours. All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates. (As amended by Republic Act No. 6727, June 9, 1989) Lecture: September 18, 2008 Important here is wage distortion. Wage gap. Read the discussion in the book. In what instances can an employer be required to pay higher than minimum wage? (bar question) 1. Wage Order 2. Collective Bargaining Agreement 3. Voluntary Arbitration 4. Compulsory Arbitration 5. Corporate Practice or Company Policy 6. Incentive Program Agreement Wages are fixed according to the following: 1. Seniority 2. Skills 3. Other Factors Example: In a situation where the wage order requires a P20.00 minimum wage increase:
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Min wage Wage Order P 382.00 P 20.00 P 402.00 --- > new minimum wage

of the arbitrators is final, reviewable only by the Court of Appeals. 2. If the company has no CBA, then labor and management should discuss the problem. If it is not settled, refer the matter to NCLB within 10 days, if it is not settled at this level then you must refer the matter to NLRC. The case shall be processed under Art 217 (a). Note that a wage order is immediately executory. It can be appealed but cant stay its execution. READ Metrobank v NWPC. Metrobank v NWPC February 6, 2007 In ECOP, the Court declared that there are two ways of fixing the minimum wage: the "floor-wage" method and the "salary-ceiling" method. The "floorwage" method involves the fixing of a determinate amount to be added to the prevailing statutory minimum wage rates. On the other hand, in the "salary-ceiling" method, the wage adjustment was to be applied to employees receiving a certain denominated salary ceiling. In other words, workers already being paid more than the existing minimum wage (up to a certain amount stated in the Wage Order) are also to be given a wage increase. To illustrate: under the "floor wage method", it would have been sufficient if the Wage Order simply set P15.00 as the amount to be added to the prevailing statutory minimum wage rates, while in the "salary-ceiling method", it would have been sufficient if the Wage Order states a specific salary, such as P250.00, and only those earning below it shall be entitled to the salary increase. In the present case, the RTWPB did not determine or fix the minimum wage rate by the "floor-wage method" or the "salary-ceiling method" in issuing the Wage Order. The RTWPB did not set a wage level nor a range to which a wage adjustment or increase shall be added. Instead, it granted an acrossthe-board wage increase of P15.00 to all employees and workers of Region 2. In doing so, the RTWPB exceeded its authority by extending the coverage of the Wage Order to wage earners receiving more than the prevailing minimum wage rate, without a denominated salary ceiling. As correctly pointed out by the OSG, the Wage Order granted additional benefits not contemplated by R.A. No. 6727. Art. 126. Prohibition against injunction. No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or
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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the Regional Boards. (As amended by Republic Act No. 6727, June 9, 1989) Lecture: September 18, 2008 Compare this with Art. 254. Because here the purpose of Art. 126 is to make regional wage fixing quite stable. Art. 254. Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (As amended by Batas Pambansa Bilang 227, June 1, 1982) Art. 127. Non-diminution of benefits. No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (As amended by Republic Act No. 6727, June 9, 1989) Lecture: September 18, 2008 Compare this with Art 100. Art 100 also speaks of non-diminution of wages. Prior to the effectivity of RA 6727, wage fixing was done by Congress. RA 6727 - Attempted to rationalize wage fixing. This Art. 127 in effect concedes that the regional wage boards, not only have the power to increase but also to decrease minimum wage. But in so decreasing minimum wage rates, wage boards are prohibited from lowering it to a level than the national minimum wage in 1989. Art. 128. Visitorial and enforcement power. a. The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employers records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. b. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor

legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994) c. The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. d. It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. e. Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. f. The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
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Lecture: September 18, 2008 Must view this article alongside Art 129 and 217(a). Art. 217. Jurisdiction of the Labor Arbiters and the Commission. a. Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or nonagricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. Two types of inspection 1. Routine inspection (Art. 128) 2. Complaint inspection (Art 129) a. This is triggered by a private complainant like an underpaid employee. Rule 2 speaks of complaint inspection while Rule 1 speaks of routine inspection. In a nutshell, routine inspection is conducted without a prior complaint by a DOLE rep (labor inspector) proceeding to the place of business and inspects the pay slips, records etc. Any finding of a violation of labor standards laws will bring about an assessment. This will be furnished to the employer and the DOLE Regional Director. A compliance order shall be issued. Art 128 Orig: Secretary Art 129 Original, Exclusive: DOLE Art 217(A) Original, Exclusive: Labor Amount Involved Delegated Authority: DOLE Regional Director Unlimited Regional Director Should exceed 5,000 not Php

Arbiter (3) 5T and below with claim for reinst. (6) beyond 5T, regardless of claim for reinst. Adjudication
Nature
Routine Inspection normally done
EER Appeal Appeal Bond Period Appeal to
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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for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989) Lecture: September 18, 2008 Period to appeal is 10 days. Look at Rule 10 (A) Art. 130. Nightwork prohibition. No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: a. In any industrial undertaking or branch thereof between ten oclock at night and six oclock in the morning of the following day; or b. In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six oclock in the morning of the following day; or c. In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours. Lecture: September 18, 2008 IMPORTANT: Read this article alongside Art 131 and Art 138 Night work is prohibited at a certain time depending on the

establishment: industrial or commercial. Industial:10pm-6am, commercial: 12mn-6am. What is the difference? And why? Industrial is riskier. Art. 131. Exceptions. The prohibitions prescribed by the preceding Article shall not apply in any of the following cases: a. In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, 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; b. In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; c. Where the work is necessary to prevent serious loss of perishable goods; d. Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services; e. Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; f. Where the women employees are immediate members of the family operating the establishment or undertaking; and g. Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations. Lecture: September 18, 2008 This article speaks of exception to nightwork prohibition. A typical case would be as provided under Art 138 lecture. Tie this with Art 87 and 92. Note the following: Art 133 has been superseded. Art 134 is a hot topic now in the house of rep. Art. 135. Discrimination prohibited. 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.
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The following are acts of discrimination: a. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and b. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989) Lecture: September 18, 2008 Tie this with Art. 288 and 289. Also tie with 136, especially on the matter of marriages. (favorite question either in the bar or J. Velosos exam) Art. 288. Penalties. Except as otherwise provided in this Code, or unless the acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an existing collective bargaining agreement, any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished with a fine of not less than One Thousand Pesos (P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or imprisonment of not less than three months nor more than three years, or both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any provision of law to the contrary notwithstanding, any criminal offense punished in this Code, shall be under the concurrent jurisdiction of the Municipal or City Courts and the Courts of First Instance. (As amended by Section 3, Batas Pambansa Bilang 70) Art. 289. Who are liable when committed by other than natural person. If the offense is committed by a corporation, trust, firm,

partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. Art. 136. Stipulation against marriage. It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. Art. 138. Classification of certain women workers. Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation. Lecture: September 18, 2008 Consider a GRO an employee as long as there is the element of supervision. A GRO was caught with a DOM at exactly 1:00am. Now, DOM happened to be a lawyer. He tried to use Art 130, to get out of it. Which ground could he use? How about call center agents? How about broadcasters? Which ground could be used? Analogous cases. Analogous to technical work. Art. 139. Minimum employable age. a. No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. b. Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. c. The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor
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and Employment. Art. 140. Prohibition against child discrimination. No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. Lecture: September 18, 2008 A 50 year old man filed a case based on the violation of Art 140 since in the selection of a laborer, the 21 years old was chosen. Will the action prosper? No. This article is designed to protect minors. Under this article, discrimination due to age is by reason of minority. Art. 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation. "Domestic or household service" shall mean service in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family drivers. Lecture: September 18, 2008 Example #1: If the male boss requires the household helper to give him a massage, is this usually necessary and desirable? Can the male boss compel the helper to give him the massage? Well, of course not! This is not considered as usually necessary and desirable for the maintenance and enjoyment. Example #2: Can a family driver insist that the household helper include his meals with the food being made? Yes, because the law speaks of the employers household. The law provides for the personal comfort and convenience of the employers household and not just his family. (Note: make sure that the request is usually necessary and desirable) Art. 143. Minimum wage. a. Househelpers shall be paid the following minimum wage rates: 1. Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Paraaque, Las Pias, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;

2. Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and 3. Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993) Lecture: September 18, 2008 The minimum wage here is the real minimum wage for domestic helpers. You cannot find a wage lower than P800.00 in NCR. Art. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance. Lecture: September 18, 2008 Differentiate this from Art. 90 and 97(f) Note that the minimum cash wage includes lodging, food and medical attendance. Can you include food and lodging in the computation of overtime work? Note that Art. 82 says that domestic helpers are excluded. Anti-Sexual Harassment Act of 1995 Lecture: September 18, 2008 There can be no sexual harassment unless: AIM 1. Authority or 2. Influence or 3. Moral Ascendancy Places: WET 1. Workplace or 2. Educational Institution or 3. Training Ground Example #1: What if a parish priest approached a parishioner who loves to sing and told her that he would ensure a slot for her in the choir on the condition that he makes her happy as well. (*shudders*) Is this punished under this law?
33

No. In this case, there may be moral ascendancy, however it did not occur in a workplace, training ground or educational institution. When you talk about workplace, there must be an employer employee relationship.

Digitel v Soriano June 26, 2006 While, as this Court stated in Philippine Aelous, there is, strictly speaking, no fixed period within which an alleged victim of sexual harassment may file a complaint, it does not mean that she or he is at liberty to file one anytime she or he wants to. Surely, any delay in filing a complaint must be justifiable or reasonable as not to cast doubt on its merits. At all events, it is settled that the only test of whether an alleged fact or circumstance is worthy of credence is the common experience, knowledge and observation of ordinary men. Read the case of Reyada (?). PD 851 Lecture: September 23, 2008 What is a 13th month pay? It must be paid for every calendar year. IRR states that it may be payable June and December If you worked from June 2008 September 23, 2008 are you entitled to 13th month pay? Will you be entitled to 13th month on June 2008? How do you distinguish 13th month pay from a pay payable every 13th month of the year? When is the employer obliged to pay? It can be different from the June and December. May be subject instead to the CBA requirements. Absent any CBA or agreement between the employer and employee, can he demand for the 13th month pay now (September 23 2008)? He can demand it if he is terminated today, in proportion of the time he spent working. How much can he demand? What is the formula, if he receives 20,000/mo? 4/12 (20,000) 13th month pay is actually 1/12 of basic pay or a year. (12 months) Payable on June or December. You cannot compel employer to pay if he does not have money. IRR states may and not shall If you want an advance makiusap ka. payable June or December 24 These are dates that must yield upon date of termination. Even if it is illegal dismissal.
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.
34

The point is, he has earned. Given: worked for 4 mos, at 20k per month 4 months P80,000 x 1/12 = 13th mo pay He worked for 29 days will he be entitled to 13th month? Why? Whats the difference of 1 day? How about 29 3/4th of a day? 29 days and 7hrs and 59mins? What is the rationale? Why should it be one month? If the employee is hired on a daily basis at P382/day and you have 26 days, are you entitled to a 13th month pay? Does the scenario change since now he is hired on a daily basis and not on a monthly basis? Note: that if you carry this to a whole year, he still would not have had 12 months or 365 days (consider rest days and holidays). So he is entitled to 13th month pay.

(1k/day for 26 days) = 312k/yr divided by 26k is 12. 312k divided by 12 months is 26k. That exactly is the essence of 13th month pay. 13th month pay is 1/12 of basic salary. Assuming that we worked the whole calendar year, without any absence, 1/12 of the salary you get for the year is 13th month pay. So when you talk about a calendar year you have to reckon it with a calendar month, NOT actual worked month. Why did the IRR come up with the requirement that the employee mustve worked for a month? Because the law speaks of months and not days (13th month pay). So the base should be a month. Minimum wage, 8 hours/day. If you are hired on an hourly basis, you divide it by 8. The point is, even if the employee has worked for less than a month, is that not capable of being computed of 1/12 of the basic salary? Assuming he worked only for a day. One days work is 1k. 1k divided by 12 = 83.33. The intention of the law is that you work for one month, but if you dont reach one month wont you be happy with month pay. After all, PD851 speaks of the equivalent. The law requires one month pay, but the law does not say that if you are not entitled to one month you should not be given. In the beginning, PD 851 took off on a voluntary basis. In 1975, all employers were encouraged to give 13th month pay and because the majority of the employers do not pay 13th month to employees receiving 1k/mo Marcos came up with PD 851. When an employee is hired on a daily basis and every month he is paid a different amount (doesnt come in on all working days every month, lets say), how do you compute the 13th month pay? You just average it out. Get the total amount of salary he received for the whole year and divide it by 12. Remember this is a calendar year, so if the person worked November and December of 2007 and then January to May of 2008, you dont add all these months up and pay the 13th month pay based on that. You have to separate November and December 2007 from January to May 2008. Look at Art. 212(m) supervisor is not an employee, however he is not also a managerial employee. So is he entitled to 13th month pay? No, he may not be managerial but he is also not rank and file so he is not entitled. When you talk about equivalent, you have Christmas bonus etc. How about transportation allowance? In the case of Cebu Institute Technology v Hon. Blas Ople, Dec
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
35

provided for in PD 851 and the employer is exempt. United C & C textile Employers Union (?) CBA bonus based on length of service, is not always exempt. It must be looked into. If it is, intended to be longevity pay as it is based on length of service then it is different in purpose of 13th month pay and cannot be considered as an equivalent. FEU Employees Labor Union December 8, 1987 transportation allowance given in the nature of a mid-year bonus is compliant to PD 851. In short, pay the difference. UST Faculty Union v NLRC Christmas gift was not considered a Christmas bonus, not even a minimum bonus, it cannot therefore be compliant with PD 851. PD 851 excludes employers of household helpers. Quebec Jr. v NLRC January 22, 1999 SC said that supervisors are not entitled to 13th month pay because they are not rank and file employees. PD 851 has been designed to alleviate financial difficulties of local workers. Migrant workers are therefore not entitled to 13th month pay. Petroleum Shipping Limited v NLRC 2006 Benefits of migrant workers are defined in the POEA standard contract. If the contract says there should be 13th or 14th or 15th month pay then so be it. But the requirement to pay such shall not be because of PD 851. THATS ALL FOLKS! Acknowledgment: Parts of this reviewer include notes from Ryan Quans SY 06-07 Labor Standards reviewer. Book Used: Labor Standards Law with Notes and Comments Vol. 1 (2005 ed.) by Salvador A. Poquiz Caveat: I tried as much as possible to verify the cases mentioned in class. However, since I did not understand the names of some of them, I could not verify all. Cases with titles I am unsure of have (?) beside it. Also, statements which are in font color orange are those I did not understand or hear. GOOD LUCK!
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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LABOR LAW I Justice Veloso

DJC Notes 3D | 08-09

LABOR LAW I Justice Veloso

DJC Notes 3D | 08-09

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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Trainings, Programs, Lectures, Meetings, Meal time

- Required by the employer - Taken for the employers benefit

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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Check page 187 of Poquiz for more cases.

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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100% 200 % 260 %

Premium Premium Overtime

Worked Basic Basic

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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What is the difference between pakiao employee and piece-rate employees?

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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Suggestive of a larger and more important service. Can be subject to garnishment

LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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LABOR LAW I Justice Veloso

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