Baylosis Assignment 8

Baylosis, Louis Lloyd I.
20190174153
Labor Law 1
Q. 25
1. The difference between OB GYNE leave under Magna Carta and Maternity leave for
miscarriage, as provided by RA 9710, the conditions for entitlement are as follows:
a) She has rendered at least six months continuous aggregate employment service for the
last twelve months prior to surgery;
b) She has filed an application for special leave with her employer within a reasonable
period of time from the expected date of surgery or within such period as may be
provided by company rules and regulations or collective bargaining agreement;
c) She has undergone surgery due to gynaecological disorders as certified by a competent
physician.
For Maternity Leave for miscarriage, as provided by RA. 11210, section 8 states that Maternity
leave with full pay shall be granted even if the childbirth, miscarriage, or emergency termination
of pregnancy occurs not more than fifteen (15) calendar days after the termination of an
employee’s service, as her right thereto has already accrued: Provided, That such period is not
applicable when the employment of the pregnant woman worker has been terminated without
just cause, in which case the employer will pay her the full amount equivalent to her salary for
one hundred five (105) days for childbirth and sixty (60) days for miscarriage or emergency
termination of pregnancy based on her full pay, in addition to the other applicable daily cash
maternity benefits that she should have received had her employment not been illegally
terminated.
2. The Four Way Test in determining Employer-Employee relationship is in a form of four

questions which are as follows:
a) Who has the power or the prerogative to SELECT and HIRE the employees?
b) Who pays the wages?
c) Who has the power to CONTROL?
d) Who has the power to Dismissal
In the case of “South East International Rattan Inc v. Jesus J. Coming” decided by the Supreme
Court that, to ascertain the existence of an employer-employee relationship jurisprudence has
invariably adhered to the four-fold test, to wit: (1) the selection and engagement of the employee;
(2) the payment of wages; (3) the power of dismissal; and (4) the power to control the
employee’s conduct, or the so-called "control test." In resolving the issue of whether such
relationship exists in a given case, substantial evidence – that amount of relevant evidence which
a reasonable mind might accept as adequate to justify a conclusion – is sufficient. Although no
particular form of evidence is required to prove the existence of the relationship, and any
competent and relevant evidence to prove the relationship may be admitted, a finding that the
relationship exists must nonetheless rest on substantial evidence.
As to the "control test", the following facts indubitably reveal that respondents wielded control
over the work performance of petitioner, to wit: (1) they required him to work within the
company premises; (2) they obliged petitioner to report every day of the week and tasked him to
usually perform the same job; (3) they enforced the observance of definite hours of work from 8
o’clock in the morning to 5 o’clock in the afternoon; (4) the mode of payment of petitioner’s
salary was under their discretion, at first paying him on pakiao basis and thereafter, on daily
basis; (5) they implemented company rules and regulations; (6) [Estanislao] Agbay directly paid
petitioner’s salaries and controlled all aspects of his employment and (7) petitioner rendered
work necessary and desirable in the business of the respondent company.
ASSIGNMENT
1) The principle of Social Justice in Labor law, provides the protection of OFWs as an Act
of Social justice that in order to afford the full protection to labor, to our OFWs, the state
has vigorously enacted laws, adopted regulations and policies and agencies, to ensure that
their needs are satisfied and they continue to work in humane living environment outside
the country.
Another principle that gives protection to the OFWs and their Security of Tenure. The
principle of the state’s full protection to labor, the security of tenure is afforded to the
OFWs regardless of their classifications within the period specified in their contract it
means that they can only be dismissed with due process, if the employer should wish to
cancel the service of the employee.
These are the laws that protects the rights of OFW

1) RA 8042, which carry out the policy of the state to protect and promote the rights of
the OFW.
2) Constitution, The Philippine constitution guarantee special protection to workers
within and outside of the country.
Another principle is the LEX LOCI CONTRACTUS which extends coverage of
Philippine laws to OFWs outside the Philippines.
2) If I were the Labor Arbiter, I would decide to deny the claims of the respondent, on the
merits that there is an illegal dismissal incurred by the petitioner, and there was no proper due
process. In a case decided by the Supreme Court, the case of Sameer Overseas Placement
Agency, Inc. v. Cabiles, it ruled that Employees are not stripped of their security of tenure when
they move to work in a different jurisdiction. With respect to the rights of overseas Filipino
workers, we follow the principle of Lex Loci Contractus. As to the remedies of illegal dismissed
OFWs, he is entitled to his salary for the unexpired portion of the employment contract that was
violated together with attorney’s fees and reimbursement of amounts withheld from his salary,
provided under R.A 8042(Migrant Workers and Overseas Filipino Act of 1995) states that
overseas workers who were terminated without just,valid cause, shall be entitled to the full
reimbursement of his placement fee with interest of 12 percent per annum, plus his salaries for
the unexpired portion of his employment contract or for 3 months for every year of the unexpired
term, whichever is less.
3) According to the Doctrine of Equal Protection to OFWs, it was declared that the provision
of section 7 of RA 10022 to be unconstitutional since it limits to 3 months of the backwages of
illegally dismissed OFW. Therefore, under this Doctrine, the illegally dismissed OFW, are
entitled to the full pay for the entire unexpired portion of the contract. As a result by declaring
the lower backwage for OFWs as violative of the Equal Protection Clause and the Due Process
Clause.
4) a) REPUBLIC ACT NO. 9178, section 8 provides, Exemption from the Coverage of the
Minimum Wage Law The BMBEs shall be exempt from the coverage of the Minimum Wage
Law: Provided, That all employees covered under this Act shall be entitled to the same benefits
given to any regular employee such as social security and healthcare benefits.
b) (1) Apprentices and learners are those who are covered by apprenticeship and learnership
agreements duly approved by the Technical Education and Skills Development Authority
(TESDA)
(2) A qualified disabled employee shall be subject to the same terms and conditions of
employment and the same compensation, privileges, benefits, fringe benefits or allowances as a
qualified able bodied person.
(3) All workers paid by result, including homeworkers and those who are paid on piece
rate, takay, pakyaw or task basis, shall receive not less than the prescribed minimum wage rates
under the Regional Wage Orders for normal working hours which shall not exceed eight(8) hours
a day, or a proportion.
c) Republic Act No. 9504 states that minimum wage workers are exempted from income
and withholding taxes.
5) (a) There are Supreme Court decisions, whereby the High Tribunal held that this rule
merely prohibited elimination or diminution of benefits employed by employees as of 01 May
1974, the day of the promulgation of the Labor Code. Article 100 is clear in providing that
“Nothing in this book shall be construed to eliminate or, any way, diminish supplements or other
employee benefits being enjoyed at the time of promulgation of this Code.”
(b) No, given the facts that it was during the Pandemic Crisis, the law is clear in stating that
an employer may not unilaterally take back or reduce benefits that it has voluntarily given to its
employees.
(c) No. An intentional offer which was accepted by the employee resulted into the meeting
of the minds or mutual consent. Therefore, there was already a bilateral contract, which could not
be withdrawn unilaterally.
(d) The General rule is that employers cannot decrease their salaries unilaterally.

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Baylosis, Louis Lloyd I.

2. The Four Way Test in determining Employer-Employee relationship is in a form of four

These are the laws that protects the rights of OFW

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