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4. Which shall not exceed 3 months; and 5. Whether or not such practical training
is supplemented by theoretical instructions. (Sec. 1a, Rule VII, Book II, IRR)
When may learners be employed?
a. When no experienced worker is available
b. It is necessary to prevent curtailment of employment opportunities; and
c. Employment does not create unfair competition in terms of labor costs or impair or lower working standards.
What is a learnership agreement?
Any employer desiring to employ learners shall enter into a learnership agreement with them,which agreement shall include:
1. The names and addresses of the learners;
2. The duration of the learnership period, which shall not exceed 3 months;
3. The wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage; and
4. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership.
What is the status of learners who have been allowed or suffered work during the first 2 months, if training is terminated by the Employer before the end of the stipulated period through no fault of the learner?
They are deemed regular employees.
(Sec. 4, RuleVII, Book II, IRR)
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Training on the job in semi-skilled and other industrial occupation or trades which are non-apprenticeable
and which may be learned thru practical training on the job in a relatively short period of time
Training in trades
which are
apprenticeable, that is, practical training on the job
In case of pretermination of contract Considered a regular
employee if pre-termination occurs after 2 months of training and the dismissal is without fault of the learner. perform an activity in the manner considered normal for a human being, as a result of mental, physical or sensory impairment (Sec. 4 (a), RA 9442).
Distinction between handicapped and disabled
Handicapped Disabled
workers. Covers all activities or endeavors.
Basis: loss or impairment of earning capacity.
Basis: range of activity which is normal for a duration. It depends on the agreement but it is necessary that there is a specific duration stated.
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May handicapped workers be hired as apprentices or learners?
Yes, if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired Art. 81).
Can a handicapped workers acquire the status of a regular Employee?
Yes, if work is usually or necessarily or desirable to the business. (Bernardo v. NLRC, G.R No. 122917,July 12, 1999)
Who may employ handicapped workers?
Employers in all industries. Provided, the handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
When can handicapped workers be employed?
1. When their employment is necessary to prevent curtailment of employment opportunities; and
2. When it will not create unfair competition in labor costs or lower working standards.(Art.79)
b. Rights of disabled workers
What are the rights and privileges of disabled workers?
1. Equal opportunity for employment;
2. Sheltered employment (the gov‘t shall endeavour to provide them work if suitable employment for disabled persons cannot be found through open employment);
3. Apprenticeship;
4. Vocational rehabilitation (means to develop the skills and potentials of disabled workers and enable them to compete in the labor market);
and
5. Vocational guidance and counseling.
c. Prohibitions on discrimination against disabled persons
What is the prohibition on discrimination against disabled workers?
No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.
Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons.
d. Incentives for employers
What are the incentives provided for employers in employing disabled workers?
1. Entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons:
Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications; and
2. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications.
IV. Termination of Employment A. Employer-Employee Relationship
What determines the existence of an employment relationship?
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It is determined by law and not by contract. Whether or not an Er-Ee relationship exists between the parties is a question of fact.
In this regard, the findings of the NLRC are accorded not only respect but finality if supported by evidence.
Note: Taxi or jeepney drivers under the ―boundary‖ system are Ee‘s of the taxi or jeepney owners/operators; so also the passenger bus drivers and conductors (Jardin vs. NLRC and Goodman Taxi, G.R. No.
119268, Feb. 23, 2000).
1. Four Fold Test
In determining whether a given set of circumstances constitute or exhibit an employer-employee relationship, the accepted rule is that the elements or circumstances relating to the following matters shall be examined and considered:
a. selection and engagement of the employees;
b. payment of wages;
c. power of dismissal; and
d. power to control the employees‘
conduct.
NOTE: The ―control test‖ is the most crucial and determinative indication of the presence or absence of an employer-employee relationship. Absence of such despite the presence of the other three elements will not suffice for the relationship to exist. Not every form of control will have the effect of establishing an employer-employee relationship.
A line should be drawn between:
a. Rules that merely serves as guidelines, which only promote the result. In such case, no employer-employee relationship exists; and
b. Rules that fix the methodology and bind or restrict the party hired to the use of such means of methods. These address both the result and means employed to achieve it and hence, employer-employee relationship exist.
What is control test?
The person for whom the services are performed reserves a right to control not only
the end to be achieved but also the means to be used in reaching such end.
Note: However, in certain cases the control test is not sufficient to give a complete picture of the relationship between the parties, owing to the complexity of such a relationship where several positions have been held by the worker. The better approach is to adopt the two-tiered test (Francisco vs. NLRC, G.R. No.
170087, Aug. 31,2006).
What is the two-tiered test?
1. The putative Er‘s power to control the Ee with respect to the means and methods by which the work is to be accomplished; and
2. The underlying economic realitiesof the activity or relationship.
Note: This two-tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties.
This is especially appropriate in this case where there is no written agreement or terms of reference to base the relationship on and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter‘s employment (Francisco vs. NLRC, G.R. No.
170087, Aug. 31, 2006).
What is the proper standard for economic dependence?
The proper standard is whether the worker is dependent on the alleged employer for his continued employment in that line of business.
2. Kinds of Employment a) Probationary Employment
Probationary employment exists where the employee, upon his engagement is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of his engagement (Art 282, LC).
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What are the characteristics of probationary employment?
1. It is an employment for a trial period;
2. It is a temporary employment status prior to regular employment;
3. It arises through a contract with the following elements:
4. The employee (Ee) must learn and work at a particular type of work 5. Such work calls for certain
qualifications
6. The probation is fixed
7. The Er reserves the power to terminate during or at the end of the trial period 8. And if the Ee has learned the job to the
satisfaction of the Er, he becomes a regular Ee.
What is the period of probationary employment?
General Rule: It shall not exceed 6 months.
Exceptions:
1. Covered by an apprenticeship or learnership agreement stipulating a different period;
2. Voluntary agreement of parties (especially when the nature of work requires a longer period);
3. The Er gives the(Ee a second chance to pass the standards set. (Mariwasa Manufacturing, Inc. v. Leogardo, Jr.,G.R.
No. 74246, Jan. 26, 1989);
4. When the same is required by the nature of the work, e.g. the probationary period set for professors, instructors and teachers is 3 consecutive years of satisfactory service pursuant to DOLE Manual of Regulations for Private Schools.
5. When the same is established by company policy.
Note: Period of probation shall be reckoned from the date the Ee actually started working (Sec.6 [b], Rule I, Book VI, IRR). After the lapse of the probationary period (6 months), Ee becomes regular. Probationary Ees may be dismissed before end of the probationary period.
Is double or successive probation allowed?
No. The evil sought to be prevented is to discourage scheming employers from using the system of double or successive probation to circumvent the mandate of the law on regularization and make it easier for them to dismiss their employees. (Holiday Inn Manila v.NLRC, G.R. No. 109114, Sep. 14, 2003) A probationary employee may be terminated on two grounds:
1. Just/authorized causes; or
2. When he fails to qualify as a regular Ee in accordance with reasonable standards made known by the employer (Er) to the Ee at the time of his engagement (ICMC v. NLRC, G.R. No.72222, Jan. 30, 1989)
Note: While probationary Ees do not enjoy permanent status, they are afforded the security of tenure protection of the Constitution. Consequently, they cannot be removed from their positions unless for cause.
Such constitutional protection, however, ends upon the expiration of the period stated in their probationary contract of employment.
Thereafter, the parties are free to renew the contract or not (CSA v. NLRC, G.R. No.
87333, Sep. 6, 1991).
What are the limitations on the employer‘s powers to terminate a probationary employment contract?
1. The power must be exercised in accordance with the specific requirements of the contract;
2. If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used;
3. The Er‘s dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law; and
4. There must be no unlawful discrimination in the dismissal
Note: The probationary employee is entitled to procedural due process prior to dismissal from service.
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b) Regular Employment What is regular employment?
1. An employee is deemed to be regular where he has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, the provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties (Art. 280, LC);
2. The primary standard is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer.
The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety.
What is the test to determine regular employment?
1. The primary standard of determining regular employment is the reasonable connection between the particular activity performed by the employee (Ee) to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the Er (De Leon v. NLRC, G.R. No. 70705, Aug.
21, 1989).
Note: The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety (Highway Copra Traders v. NLRC, G.R. No.
108889, July 30, 1998).
2. Also, the performance of a job for at least a year is sufficient evidence of the job‘s necessity if not indispensability to the business.
This is the rule even if its performance is not continuous and merely intermittent. The employment is considered regular, but only with respect to such activity and while such activity exists (Universal Robina Corp. v.
Catapang, G.R. No. 164736, Oct.14, 2005).
Note: The status of regular employment attaches to the casual Ee on the
day immediately after the end of his first year of service. The law does not provide the qualification that the Ee must first be issued a regular appointment or must first be formally declared as such before he can acquire a regular status. (Aurora Land Projects Corp. v.
NLRC, G.R. No. 114733, Jan. 2, 1997)
May route helpers be considered as regular employees?
Yes, the Court categorically declared that the nature of work of route helpers hired by Coca-Cola Bottlers Phils., Inc. is necessary and desirable in its usual business or trade thereby qualifying them as regular employees, to wit; ―Coca-Cola Bottlers Phils., Inc., is one of the leading and largest manufacturers of softdrinks in the country. Respondent workers have long been in the service of petitioner company. Respondent workers, when hired, would go with route salesmen on board delivery trucks and undertake the laborious task of loading and unloading softdrink products of petitioner company to its various delivery points.‖ (Basan, et. Al. vs. Coca-Cola Bottlers Philippines, G.R. No. 174365-66, February 4, 2015).
c) Project Employment
It is where the employment has been fixed for a specific project or undertaking the completion or termina-tion of which has been determined at the time of the engagement of the employee (Art. 286, Labor Code).
What are the indicators of Project Employment?
Either one or more of the following circumstances, among others, may be considered as indicators that an employee is a project employee:
a. The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable;
b. Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring.
Note: Absent any other proof that the project employees were informed of their
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status as such, it will be presumed that they are regular employees.
c. The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged;
d. The employee, while not employed and awaiting engagement, is free to offer his services to any other employer;
e. The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees‘
termination or dismissal or suspensions; and A project employee is one whose termination of his employment contract is reported to the DOLE everytime the project for which he was engaged has been completed (Manalo, et al. vs. TNS Philippines, Inc., G.R.
No. 208567, November 26, 2014).
f. An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies.
What are the requisites in determining whether an employee (Ee) is a project Ee?
1. The project Ee was assigned to carry out a specific project or undertaking, and
2. The duration and scope of which were specified at the time the Ee was engaged for that project. (Imbuido v. NLRC, G.R. No.
114734, Mar. 31, 2000)
3. The Ee must have been dismissed every after completion of his project or phase;
and
4. Report to the DOLE of Ee‘s dismissal on account of completion of contract (Policy Inst.No. 20; D.O. 19 [1997])
What is a project?
A "project" has reference to a particular job or undertaking that may or may not be within the regular or usual business of the Er.
In either case, the project must be distinct,
separate and identifiable from the main business of the Er, and its duration must be determined or determinable (PAL v. NLRC, G.R. No. 125792, Nov. 9, 1998).
Distinguishable Types of Project Activities (ALU-TUCP vs. NLRC, 234 SCRA 328):
1. A particular job or undertaking that is WITHIN THE REGULAR OR USUAL BUSINESS of the employer company, but which is DISTINCT and SEPARATE, and IDENTIFIABLE as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times.
e.g. A construction company which has construction projects in Manila, Mandaluyong and Baguio.
2. A particular job or undertaking that is NOT WITHIN THE REGULAR BUSINESS of the corporation. Such a job or undertaking must also be IDENTIFIABLY SEPARATE and DISTINCT from the regular business. The job or undertaking also begins and ends at determined or determinable times.
e.g. A steel-making company undertakes projects related to breeding and production of fish or cultivation of vegetables.
General Rule: LENGTH OF SERVICE is not controlling in project employment (Hilario Rada vs. NLRC, 205 SCRA 69).
Exception: Although the work to be performed is only for a SPECIFIC PROJECT or SEASONAL, where a person thus engaged has been performing the job for at least one year, even if the performance is not continuous or is merely intermittent, the law deems the REPEATED and CONTINUING NEED FOR ITS PERFORMANCE as being sufficient to indicate the necessity or desirability of that activity to the business or trade of the employer. The employment of such person is also then deemed to be REGULAR WITH RESPECT TO SUCH ACTIVITY and WHILE SUCH ACTIVITY EXISTS (Magsalin, et.al. vs. National Organization of Working Men, et al., May 9, 2003).
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d) Seasonal Employment
Seasonal workers are those who are called to work from time to time according to the occurrence of varying need during a season, and are laid off after completion of the required phase of work.
Seasonal workers who works for more than one season are deemed to have acquired regular employment.
Seasonal workers during the off season are merely considered on leave. They are also entitled to separation pay.
e) Casual Employment
It is one wherein an employee is
It is one wherein an employee is