No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status.
Section 8. Parental Leave.
In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year
“The seven day leave is subject to the discretion of the employee, hence he must indicate the same in his request to file for leave, the only limitation is that it cannot exceed 7 days”
Conditions to entitlement of solo parent leave
1) He has rendered at least 1 year of service whether continuous or broken at the time of effectivity of the act
2) He has notified his employer of the availment thereof within a reasonable time period 3) He has presented a solo parent ID to his employer
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.
“The 15% shall be retained by management to answer for losses and breakages and for distribution to managerial employees, at the discretion of management in the latter case. The shares shall be distributed and paid to the employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days”
“If the company does not require a service charge, tips earned if any shall be handled in the same manner”
Rule if collection of Service Charge is abolished
The share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges.
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 government-owned 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)
(f) "Employ" includes to suffer or permit to work.
(g) "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 any profit to the employer, or to any person affiliated with the employer.
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 needle work or in any cottage industry duly registered in accordance with law.
“The technical distinction between wages and salaries is that the former is the compensation given for manual labor, skilled or unskilled whereas Salary denotes a higher degree of employment, or superior grade of services, implies a position or office.”
“The term wages includes sales commissions, hence sales commissions should be included in the computation of separation pay basing the average of the commissioned earned during their last year of employment”
2 reasons why commissions form part of wages/salaries hence computation of separation pay (Songco et al vs NLRC et al)
1) Commissions are in the form of incentives or encouragement, so that the petitioners would be inspired to put a little more industry on the jobs particularly assigned to them, still these commissions are direct remuneration services rendered which contributed to the increase of income of Zuellig . Commission is the recompense, compensation or reward of an agent, salesman, executor, trustees, receiver, factor, broker or bailee, when the same is calculated as a percentage on the amount of his transactions or on the profit to the principal (Black's Law Dictionary, 5th Ed., citing Weiner v. Swales, 217 Md. 123, 141 A.2d 749, 750). The nature of the work of a salesman and the reason for such type of remuneration for services rendered demonstrate clearly that commission are part of petitioners' wage or salary.
2) The workingman's 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 for in Article 4 of the Labor Code which states that "all 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.
Inclusions of wages:
1) Any form of remuneration earnings for services rendered.
2) Commissions
3) Ecola, depending on the wage order providing for it 4) Transportation allowance
“Facilities are chargeable against the wage of the employees subject to the limitations set forth by the secretary of labor and the IRR However supplements are not capable of being charged against wages”
Facilities
Includes articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employers business.
Supplements
Constitutes extra remuneration or special privileges or benefits given to or received by the employees over and above their ordinary earnings or wages given for the benefit of the employer or necessary to the conduct of the employers business.
3 requirements before the value of the facility may be deducted from the wage (Mabeza vs NLRC) 1) Proof must be shown that such facilities are customarily furnished by the trade
2) The provision of deductible facility must be voluntarily accepted in writing by the employee.
3) Facilities must be charged at fair and reasonable value
“The controlling factor in determining whether the benefit given is a facility or supplement is the purpose, if it is solely for the benefit of the employee it is a facility but where the purpose is to benefit the employer and the benefit enjoyed by the employee is only incidental it is a supplement”
Fair Days wage for fair day’s labor
If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. Thus it has been held that where the failure of the workers to work was not due to the employer’s fault, the burden of economic loss suffered by the employees should not be shifted to the employer. Each party must bear his own loss.
ART. 99. Regional minimum wages.
The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards.
Exceptions to the coverage of minimum wages:
1) Household or domestic helpers, including family drivers and persons in the personal service of another
2) Homeworkers engaged in needle-work
3) Work employed in any establishment duly registered with the national cottage industries and development authority in accordance with RA 3470 provided that such workers perform the work in their respective homes.
4) Workers in any duly registered cooperative when so recommended by the bureau of cooperative development and upon approval of the SEC of labor and employment provided however:
a. The purpose of the exemption is to make the cooperative viable
b. Upon finding by the bureau supported by adequate proof that the cooperative cannot resort to other remedial measures without serious loss or prejudice to its operation except through the exemption from the rules
c. That the exemption is subject to the T&Cs for such period of time as the SEC of L&E may prescribe.
d. BMBEs (Barangay micro business enterprises)
Is defined as any business entity or enterprise engaged in the production, processing or manufacturing of products or commodities, including agro-processing, trading and services , whose total assets including those arising from loans but exclusive of the land on which the particular business entity’s office, plant and equipment are situated, shall not be more than 3M pesos.
Section 8 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 SSS and health care benefits
e. Retail and service establishment (Wage Rationalization act [ RA 6727]) requisites:
i. The establishment is generally employing not more than 10 employees ii. The employer has applied for the exception with the regional board
iii. The application for exemption has been granted in accordance with the applicable rules and regulations issued by the commission
f. Wage orders by the wage 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.
5 requisites for the application of the Non-diminution of benefits rule:
1) The grant of the benefits is founded on a policy or has ripened into a practice over a long period of time
2) The practice is consistent and deliberate
3) The practice is not due to error in the construction or application of a doubtful or difficult question of law
4) It is not based on of a strict legal or contractual obligation but by reason of an act of liberality on the part of the employer
5) The diminution or discontinuance is done unilaterally by the employer.
The practice to constitute practice under the Non-Diminution rule must subscribe to the following:
1) The employer continue to give the benefits
2) The employer fully knew that the said employees are not covered by the law requiring payment thereof.
“The time required for the practice to ripened into a long period of time is subject to reasonable standards however the court has least number of years approved by the court is 2 years.”
Comment:
The rule on non-diminution of benefits embodied in article 100 covers only those benefits already in existence prior the promulgation of the labor code on 01 May 1974 and prevents its diminution due to the provisions found in the code.
However under the principle of mutuality of contracts under article 1308 of the civil code, the terms of the contract whether express or implied cannot be withdrawn except by mutual agreement of the parties.
Exceptions to the non-diminution rule:
1) Correction of error 2) Negotiated benefits 3) Wage order compliance
4) Benefits on reimbursement basis 5) Reclassification of position
6) Contingent benefits or conditional bonus (bonus not part of the wage) 7) Productivity incentives
13 month pay Employees excluded from the coverage of the 13th month pay law:
1) Managerial employees;
2) Those covered under the civil service law;
3) Those already receiving 13th month pay or its equivalent. Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary are treated as equivalent of 13th month pay;
4) Household helpers and persons in the personal service of another; and
5) Those paid on purely commission, boundary, or task basis, and those who are paid fixed amount for performing specific work except those paid on a piece-rate basis.
6) Seafarers, since there are more appropriately termed as contract employees Harmonization of Duplicators inc. VS. NLRC and BOIE-Takeda VS. SEC of Labor
The ruling of the court here is that 13th month pay may include the commission earned by the employee for the calendar year provided that the commission forms part of the basic salary. The following are the criteria used to determine whether commission is part of the term basic salary:
1) Does not partake of a profit sharing or productivity bonus incentive program (Takeda) since the medical representatives here are similar to that of a promotion agents which are not tasked to sell the goods of the company
2) That the commission is based on the predetermined percent of the selling price of the goods sold by each salesman
Hence if the incentive or commission is given as something extra for which no specific additional services are rendered by any particular employee, such incentive is not part of the employee’s basic salary. However when the commissions or incentives are related or directly proportional to the extent of energy of an employee’s endeavors and the commissions paid based upon the specific result achieved by employee such as via a percentage of the sales closed by the employee, such commission forms part of such employee’s basic pay.
Comment:
Teachers overload work is included in the calculation of the 13th month pay.
The load in excess of the normal load of a private school teacher as prescribed by DECS or the policies, rules and standard of particular private schools. Overload work is different from overtime work since the former may be performed within the 8 hour work day of the employee and refers to the additional load a teacher is requested to perform outside the regular load prescribed by DECS or the policies, rules or standards of the involved private school. Whereas overtime refers to work performed outside the 8 hour work day of a teacher.
Comment:
a) A distressed employer may seek exemption from the 13th month pay rule with the SEC of labor his failure to do so would render him covered by the said rule.
b) The disagreement as to the computation of the 13th month pay is not a strikeable issue and any strike held for that purpose is considered an illegal strike
ART. 101. Payment by results.
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.
2 groups of employees paid by result:
1) Those whose time and performance are supervised by the employer
Technically called piece rate workers, the distinguishing factor is the presence of element of control, hence the E&E relationship exists.
2) Those whose time and performance are unsupervised.
Technically called pakiaw and takay employess
2 methods in determining the compensation of a piece rate worker:
1) Those who are paid pieces rates which are prescribed in piece rate orders issued by dole
Wages or earnings in this category are determined by simply multiplying the number of pieces produced by the rate per piece amount
2) Those who are paid output rates which are prescribed by the employer and are not yet approved by DOLE
The number of pieces produced is multiplied by the rate per piece amount provided by the employer. If the resulting amount is equal or greater than the applicable statutory minimum wage, the worker shall receive such amount. If the resulting amount is less than the applicable statutory minimum wage, the employer shall pay the resulting amount and the difference between them.
Comment:
A closer reading of article 82 would show that the piece rate workers that are excluded from the coverage of title 1 of book 3 of the LC is subjected to the discretion of the SEC of Labor as supported by:
In any event the IRR of the LC provides that the piece rate employees whose time and performance are supervised by the employer are entitled to:
1) Statutory minimum daily rate
2) Yearly SIL of 5 days with pay (if with power of control) 3) Night shift differential pay (if with power of control) 4) Holiday pay(if with power of control)
5) Meal and rest periods 6) OT (conditional)
a. If the rates has been set by the SEC of Labor no OT is applicable b.
7) Premium pay (conditional)
a. If the rates has been set by the SEC of Labor no OT is applicable b.
8) 13 month pay
9) Other benefits granted by law, CBA or individual agreements or company policy or practice NCC Art. 1467.
A contract for the delivery at a certain price of an article which the vendor in the ordinary course of his business manufactures or procures for the general market, whether the same is on hand at the time or not, is a contract of sale, but if the goods are to be manufactured specially for the customer and upon his special order, and not for the general market, it is a contract for a piece of work. (n)
ART. 102. Forms of payment.
No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, 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.
Comment:
When the employee alleges that there has been non-payment of wages and/or commission the employer has the burden to prove payment
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 employer’s 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
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