CRALaw - Labor Law PreWeek (2017)

FOR THE 2017 BAR EXAMS

Prof. Joselito Guianan Chan

Chan Robles Online Bar Review

www.chanroblesbar.com

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NEW LABOR LAWS

o R.A. No. 10911 [Lapsed into law on July 21, 2016], otherwise known as the ANTI-AGE DISCRIMINATION ACT, prohibiting discrimination against any individual in employment on account of age and providing penalties therefor.

o R.A. No. 10395 [March 14, 2013], strengthening tripartism, amending for the purpose Article 290 [275] of the Labor Code, otherwise known as the “Tripartism Law.”

➢ Tripartism in labor relations is hereby declared a State policy. Towards this end, workers and employers shall, as far as practicable, be represented in decision and policy-making bodies of the government.

o R.A. No. 10396 [March 14, 2013], strengthening conciliation-mediation as a voluntary mode of dispute settlement for all labor cases, amending for this purpose Article 234 [228] of the Labor Code, otherwise known as the “Mandatory Conciliation-Mediation Law.”

o R.A. No. 10361 [January 18, 2013], instituting policies for the protection and welfare of domestic workers, otherwise known as the “Domestic Workers Act” or “Batas Kasambahay.” o R.A. No. 10151 [June 21, 2011], allowing the employment of night workers, thereby repealing

Articles 130 and 131 of Presidential Decree Number Four Hundred Forty-Two, as amended, otherwise known as the Labor Code of the Philippines.

o R.A. No. 10022 [March 8, 2010], amending R.A. No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended, further improving the standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress and for other purposes.

NEW LABOR ISSUANCES

o Department Order No. 174, Series of 2017 (Issued on March 16, 2017) – Rules Implementing Articles 106 to 109 of the Labor Code, as Amended.

o Department Circular No. 01, Series of 2017 (Issued on June 09, 2017) – Clarifying the Applicability of Department Order No. 174, Series of 2017.

- Not applicable to BPO, KPO, LPO, IT Infrastructure Outsourcing, Application Development, Hardware and/or Software Support, Medical Transcription, Animation Services, Back Office Operations/Support, and CONSTRUCTION INDUSTRY

o Labor Advisory No. 10, Series of 2016 (on July 25, 2016) - Prohibition Against Labor-Only Contracting.

o Department Order No. 40-I-15, Series of 2015 (Issued on September 07, 2015) - REPEALING “Voluntary Recognition” as a mode of designating a SEBA and replacing it with the mode known as “Request for SEBA Certification.”

ISSUANCES ON OVERSEAS EMPLOYMENT

1. Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipinos Act of 1995, as Amended by Republic Act No. 10022, issued on July 8, 2010; 1

Formerly, Omnibus Rules and Regulations Implementing R.A. No. 8042 jointly issued by the Secretary of Foreign Affairs and Secretary of Labor and Employment on February 29, 1

2. Revised POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Filipino Workers of 2016; and 1

3. 2016 Revised POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers issued on February 26, 2016. 2

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SYLLABUS

MAJOR TOPIC 1

FUNDAMENTAL PRINCIPLES AND CONCEPTS

A.

CONSTITUTIONAL PROVISIONS

• What are the important labor-related constitutional principles?

• Under Article II (Declaration of Principles and State Policies):

a. FIRST OF TWO PROTECTION-TO-LABOR CLAUSES: “Section 18. The State affirms labor as

a primary social economic force. It shall protect the rights of workers and promote their welfare.

• Under Article III (Bill of Rights):

a. Due process and equal protection of the law.

NOTE: THIS CANNOT BE INVOKED BY EMPLOYEES AGAINST THEIR EMPLOYERS IN CASES OFTERMINATION OF THEIR EMPLOYMENT.

b. Freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble

and petition the government for redress of grievances.

NOTE: THIS FREEDOM IS RELEVANT ONLY IN PICKETING AND NOT IN STRIKE.

c. Right of public and private sector employees to form unions, associations, or societies for purposes

not contrary to law shall not be abridged.

NOTE: THIS IS KNOWN AS “FREEDOM OF ASSOCIATION.” THIS PROVISION IS THE BASIS FOR THE EMPLOYEES’ RIGHT TO SELF-ORGANIZATION.

d. Non-impairment of obligations of contracts.

NOTE: THE CONCEPT OF THIS RIGHT IN POLITICAL LAW IS SIMILAR IN LABOR LAW. e. Right to speedy disposition of cases in judicial, quasi-judicial or administrative bodies.

NOTE: THIS CAN BE INVOKED IN LABOR CASES AT ALL LEVELS. f. Prohibitions against involuntary servitude.

NOTE: THIS PRINCIPLE IS RELEVANT ONLY IN TWO (2) SITUATIONS: NAMELY: (1) RESIGNATION AND (2) RETURN-TO-WORK ORDER IN NATIONAL INTEREST CASES. THIS MEANS THAT:

(1) AN EMPLOYEE HAS THE RIGHT TO RESIGN SINCE HE CANNOT BE FORCED TO WORK AGAINST HIS WILL;

(2) A STRIKER CAN BE ORDERED TO RETURN TO WORK EVEN AGAINST HIS WILL IN NATIONAL INTEREST CASES. ACCORDINGLY, IT IS NOT IN VIOLATION OF THE INVOLUNTARY SERVITUDE PRINCIPLE.

• Under Article XIII (Social Justice and Human Rights):

a. SECOND OF TWO PROTECTION-TO-LABOR CLAUSES:

Section 3. The State shall afford full protection to labor, local and overseas, organized and

unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.

Formerly, POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers issued on February 4, 2002. 1

Formerly, POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers issued on May 23, 2003. 2

They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

• May cases be filed for violation of the foregoing constitutional provisions?

The labor-related provisions of the Constitution are merely statements of principles and are all NOT self-executing provisions. They are used only as guides for judicial decisions or legislative enactments. Being mere statement of principles and policies, no case can be filed for their violation. Only violation of the laws passed to implement these principles and policies can be proper subject of court litigation.

• What are the kinds of procedural due process that may be asserted in labor cases?

The following are the kinds of procedural due process that may be invoked in labor cases, to wit:

(1) Procedural due process that may be invoked against the employer during the investigation of the employee’s administrative case at the company-level that may lead to his dismissal:

a. Statutory due process per Agabon doctrine which refers to the due process provision in the Labor Code (Article 277[b]); and

b. Contractual due process per Abbott Laboratories doctrine which refers to the due process prescribed in the Company Rules and Regulations or Code of Conduct or Code of Discipline.

NOTE: CONSTITUTIONAL DUE PROCESS UNDER ARTICLE III, SECTION 1 OF THE CONSTITUTION CANNOT BE INVOKED AGAINST A PRIVATE PARTY LIKE THE EMPLOYER. IT CAN ONLY BE ASSERTED AGAINST THE STATE OR GOVERNMENT. HENCE, THE EMPLOYEE BEING INVESTIGATED CANNOT INVOKE CONSTITUTIONAL DUE PROCESS BUT ONLY STATUTORY AND CONTRACTUAL DUE PROCESS.

(2) Procedural due process that may be invoked once a case has already been filed in the labor court, such as the Labor Arbiter or the NLRC, and/or brought to higher courts:

a. Constitutional due process under Section 1, Article III of the Constitution since this right cannot be invoked against the private employer but only against the State or government as represented by Labor Arbiters, NLRC, CA and SC.

The rule since Agabon is that compliance with the statutorily-prescribed procedural due process under Article 292(b) [277(b)] of the Labor Code would suffice. It is not important in determining the validity of the termination whether there is an existing company policy which also enunciates the procedural due process in termination cases. However, under the latest doctrinal en banc ruling in the 2013 case of Abbott Laboratories,

Philippines v. Pearlie Ann F. Alcaraz, it is now required that in addition to compliance with the statutory due

process, the employer should still comply with the due process procedure prescribed in its own company rules now called CONTRACTUAL DUE PROCESS. The employer’s failure to observe its own company-prescribed due process, IN ADDITION TO STATUTORY DUE PROCESS, will make it liable to pay an indemnity in the form of nominal damages, the amount of which is similar to the P30,000.00 awarded under the Agabon doctrine.

• When can an employee invoke constitutional due process and right to equal protection of the laws?

As distinguished from company-level investigation conducted by the employer where only STATUTORY

and CONTRACTUAL DUE PROCESS can be invoked, a dismissed employee can invoke constitutional due

process only when he files an illegal dismissal case in the labor court and he is deprived due process by a government functionary like the Labor Arbiter or the Commission (NLRC), or Court of Appeals on Rule 65 certiorari petition. The reason is that, at this stage, the government is now involved through said labor tribunals. • Is right to counsel mandatory?

No. Per the prevailing Lopez doctrine (see 2011 case of Lopez v. Alturas Group of Companies), the right to

counsel is neither indispensable nor mandatory. It becomes mandatory only in two (2) situations:

(1) When the employee himself requests for counsel; or

(2) When he manifests that he wants a formal hearing on the charges against him, in which case, he should be assisted by counsel.

B.

• Is Article 1700 of the Civil Code applicable to labor cases?

Yes, Article 1700 of the Civil Code provides:

“Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”

In Davao Integrated Port Stevedoring Services v. Abarquez, March 19, 1993. It was held that a CBA, as a labor contract within the contemplation of Article 1700 of the Civil Code, is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good.

Similarly, an employment contract or any other labor contract is treated as not merely contractual in nature similar to an ordinary contract like a lease contract because it is impressed with public interest. Consequently, all labor laws are deemed incorporated therein even if not so expressly provided or stipulated in its provisions.

• How is Article 1702 of the Civil Code correlated with Article 4 of the Labor Code?

Both Article 1702 of the Civil Code and Article 4 of the Labor Code speak of the rule on interpretation and construction provisions of law and labor contracts.

Article 1702 of the Civil Code provides:

“Article 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.”

Article 4 of the Labor Code states:

“Article 4. Construction in Favor of Labor. – All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.”

Article 1700 applies to doubts and ambiguities in (1) Labor legislations;

(2) Labor contracts such as an employment contract or a CBA; (3) evidence presented in labor cases.

Article 1700 applies to doubts and ambiguities: (1) In the Labor Code; and

(2) In the Implementing Rules of the Labor Code.

C.

THE LABOR CODE

“Labor standards law” is that part of labor law which prescribes the minimum terms and conditions of employment which the employer is required to grant to its employees.

“Labor relations law” is that part of labor law (Book V of the Labor Code) which deals with unionism,

collective bargaining, grievance machinery, voluntary arbitration, strike, picketing and lockout.

Labor relations and labor standards laws are not mutually exclusive. They are complementary to, and closely interlinked with, each other. For instance, the laws on collective bargaining, strikes and lockouts which are covered by labor relations law necessarily relate to the laws on working conditions found in Book III.

• What is a SEBA?

An “exclusive bargaining representative” or “exclusive bargaining agent” or Sole and Exclusive Bargaining Agent (SEBA), refers to a legitimate labor organization duly certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.

Note must be made of the latest innovative amendment of the Labor Code’s Implementing Rules introduced by Department Order No. 40-I-15, Series of 2015, which has expressly repealed the entire provision on “Voluntary Recognition” of the Implementing Rules on Book V and replaced it with the freshly-minted mode of securing the status of a sole and exclusive bargaining agent through a “Request for SEBA Certification” or “Request.”

Voluntary recognition is therefore no longer allowed and is effectively replaced by the Request mode.

(NOTE: This is extensively discussed in Major Topic No. 7 (Labor Relations, infra)

• Can individual employee or group of employees bring grievable issues directly to their employer without the participation of the SEBA?

Yes. The designation of a SEBA does not deprive an individual employee or group of employees to exercise their right at any time to present grievances to their employer, with or without the intervention of the

SEBA.

• Can individual employee or group of employees bring grievable issues to voluntary arbitration without the participation of the SEBA?

No, as held in the 2009 case of Tabigue v. International Copra Export Corporation, where the Supreme

Court clarified that an individual employee or group of employees cannot be allowed to submit or refer unsettled grievances for voluntary arbitration without the participation of the SEBA. The reason is that it is the SEBA which is a party to the CBA which contains the provision on voluntary arbitration. Being a party thereto, the SEBA cannot be disregarded when a grievable issue will be submitted for voluntary arbitration.

In order to have legal standing, the individual members should be shown to have been duly authorized to represent the SEBA. (NOTE: Insular Hotel Employees Union-NFL v. Waterfront Insular Hotel

Davao, Sept. 22, 2010, reiterated Tabigue). • What is the principle of co-determination?

The principle of co-determination refers to the right given to the employees to co-determine or share the responsibility of formulating certain policies that affect their rights, benefits and welfare.

In PAL v. NLRC, it was held that the formulation of a Code of Discipline among employees is a shared responsibility of the employer and the employees. It affirmed the decision of the NLRC which ordered that the New Code of Discipline should be reviewed and discussed with the union, particularly the disputed provisions and that copies thereof be furnished each employee.

• Does the grant of the right of participation mean co-management of business or intrusion into management prerogatives?

No. This principle does not mean that workers should approve management policies or decisions. • What is Labor-Management Council (LMC)?

The establishment of Labor-Management Council (LMC) is mandated under the said constitutional principle of co-determination.

MAJOR TOPIC 2

RECRUITMENT AND PLACEMENT

A.

ILLEGAL RECRUITMENT

• Who may commit illegal recruitment?

Illegal recruitment may be committed by any of the following (1) By Non-Licensee or Non-holder of authority; or

(2) By ANY PERSON, regardless of whether a non-licensee, non-holder, licensee or holder of

authority,

• What are illegal recruitment acts that can be committed by No. 1 above (NON-LICENSEE or NON-HOLDER OF AUTHORITY)?

When what is committed by such NON-LICENSEES or NON-HOLDERS OF AUTHORITY is any of the acts of recruitment allowed only to be done by licensees or holders of authority such as the

act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and

includes referring, contract services, promising or advertising for employment abroad, whether for profit or not.

In other words, had they possessed of license or authority, their commission of any of the foregoing acts could have been valid and not constitutive of illegal recruitment.

NOTE: The non-licensee or non-holder of authority is presumed to be engaged in such recruitment if he in any manner, offers or promises for a fee employment abroad to two or more persons. • What are acts of illegal recruitment when committed by ANY PERSON, whether a NON-LICENSEE,

NON-HOLDER OF AUTHORITY or even by a LICENSEE or HOLDER OF AUTHORITY?

(a) To charge or accept, directly or indirectly, any amount greater than that specified in the

schedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay or

acknowledge any amount greater than that actually received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any act of

misrepresentation for the purpose of securing a license or authority under the Labor Code, or

for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to non-existent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;

(f) To engage in the recruitment or placement of workers in jobs harmful to public health or

morality or to the dignity of the Republic of the Philippines;

(g) To fail to submit reports on the status of employment, placement vacancies, remittance of

foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

(h) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE;

(i) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in

the management of travel agency;

(j) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

(k) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

place without the worker's fault. Illegal recruitment when committed by a syndicate or in large

scale shall be considered an offense involving economic sabotage; and

(m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.” PROHIBITED ACTIVITIES

IN RELATION TO ILLEGAL RECRUITMENT

• What are the PROHIBITED ACTIVITIES in connection with recruitment for overseas employment?

Besides illegal recruitment, the law additionally provides that it shall also be unlawful for any person or entity to commit the following prohibited acts:

(1) Grant a LOAN to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan;

(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a

LOAN only from specifically designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a LOAN incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo

HEALTH EXAMINATIONS only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/ shipowner;

(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo

TRAINING, SEMINAR, INSTRUCTION OR SCHOOLING of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

(6) For a SUSPENDED RECRUITMENT/MANNING AGENCY to engage in any kind of recruitment activity including the processing of pending workers' applications; and

(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of INSURANCE fees, premium or other insurance

related charges, as provided under the compulsory worker's INSURANCE coverage.

LICENSE VS. AUTHORITY • What is a “license” for overseas recruitment?

“License” refers to the document issued by the DOLE Secretary authorizing a person, partnership or corporation to operate a private recruitment or manning agency.

• What is an “authority” for overseas employment?

“Authority” refers to the document issued by the DOLE Secretary authorizing the officers, personnel, agents or representatives of a licensed recruitment or manning agency to conduct recruitment and placement activities in a place stated in the license or in a specified place.

ELEMENTS OF ILLEGAL RECRUITMENT • What are the elements of illegal recruitment?

The essential elements of illegal recruitment vary in accordance with the following classifications: (1) Simple illegal recruitment;

(2) When committed by a syndicate; or (3) When committed in large scale.

When illegal recruitment is committed under either Nos. 2 or 3 above or both, it is considered an offense

involving economic sabotage.

SIMPLE ILLEGAL RECRUITMENT • What are the 2 elements of simple illegal recruitment?

(1) The offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and

(2) He undertakes either any activity within the meaning of “recruitment and placement” defined under Article 13(b), (see above enumeration) or any prohibited practices (see above enumeration) under Article 34 of the Labor Code.

• Can a recruiter be a natural or juridical person? Yes.

• What are some relevant principles on illegal recruitment?

1. Mere impression that a person could deploy workers overseas is sufficient to constitute illegal recruitment. But if no such impression is given, the accused should not be convicted for illegal recruitment.

2. Mere promise or offer of employment abroad amounts to recruitment.

3. There is no need to show that accused represented himself as a licensed recruiter. 4. Referrals may constitute illegal recruitment.

5. It is illegal recruitment to induce applicants to part with their money upon false misrepresentations and promises in assuring them that after they paid the placement fee, jobs abroad were waiting for them and that they would be deployed soon.

6. Recruitment whether done for profit or not is immaterial.

7. The act of receiving money far exceeding the amount as required by law is not considered as “recruitment and

placement” as this phrase is contemplated under the law.

8. Actual receipt of fee is not an element of the crime of illegal recruitment. 9. Conduct of interviews amounts to illegal recruitment.

10. Absence of receipt is not essential to hold a person guilty of illegal recruitment.

11. Conviction for illegal recruitment may be made on the strength of the testimonies of the complainants.

12. Absence of documents evidencing the recruitment activities strengthens, not weakens, the case for illegal recruitment.

13. Only one person recruited is sufficient to convict one for illegal recruitment. 14. Non-prosecution of another suspect is immaterial.

15. Execution of affidavit of desistance affects only the civil liability but has no effect on the criminal liability for illegal recruitment.

16. Defense of denial cannot prevail over positive identification. Positive identification where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses on the matter prevails over alibi and denial. Between the categorical statements of the prosecution witnesses, on the one hand, and bare denials of the accused, on the other hand, the former must prevail.

ILLEGAL RECRUITMENT AS A FORM OF ECONOMIC SABOTAGE • When is illegal recruitment considered a crime involving economic sabotage?

1. when committed by a syndicate; or 2. when committed in large scale.

• When is illegal recruitment committed by a syndicate?

If it is carried out by a group of three (3) or more persons conspiring or confederating with one another.

• Elements of illegal recruitment by a syndicate.

The essential elements of the crime of illegal recruitment committed by a syndicate are as follows:

1. There are at least three (3) persons who, conspiring and/or confederating with one another, carried out any unlawful or illegal recruitment and placement activities as defined under Article 13(b) or committed any prohibited activities under Article 34 of the Labor Code; and

2. Said persons are not licensed or authorized to do so, either locally or overseas.

The law does not require that the syndicate should recruit more than one (1) person in order to constitute the crime of illegal recruitment by a syndicate. Recruitment of one (1) person would suffice to qualify the illegal recruitment act as having been committed by a syndicate.

• When is illegal recruitment considered in large scale?

If committed against three (3) or more persons individually or as a group. • Elements of illegal recruitment in large scale.

The elements of illegal recruitment in large scale, as distinguished from simple illegal recruitment, are as follows:

1. The accused engages in the recruitment and placement of workers as defined under Article 13(b) or committed any prohibited activities under Article 34 of the Labor Code; and

2. The accused commits the same against three (3) or more persons, individually or as a group.

• Distinguished from illegal recruitment by a syndicate.

As distinguished from illegal recruitment committed by a syndicate, illegal recruitment in large scale may be committed by only one (1) person. What is important as qualifying element is that there should be at least three (3) victims of such illegal recruitment, individually or as a group.

1. The number of persons victimized is determinative of the crime. A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three (3) or more persons having been recruited, whether individually or as a group.

2. Failure to prove at least 3 persons recruited makes the crime a case of simple illegal recruitment.

3. There is no illegal recruitment in large scale based on several informations filed by only one complainant. 4. The number of offenders is not material in illegal recruitment in large scale.

5. Recruitment in large scale or by a syndicate is malum prohibitum and not malum in se. ILLEGAL RECRUITMENT VS. ESTAFA

• Can a person be charged and convicted separately for illegal recruitment and estafa involving one and the same act of recruitment?

Yes. It is clear that conviction under the Labor Code does not preclude conviction for estafa or other crimes under other laws.

Some relevant principles:

▪ Same evidence to prove illegal recruitment may be used to prove estafa. ▪ Conviction for both illegal recruitment and estafa is not double jeopardy.

NATURE OF LIABILITY OF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER

• What is the nature of the liability between local recruiter and its foreign principal?

The nature of their liability is “solidary” or “joint and several” for any and all claims arising out of the employment contract of OFWs.

• Is the solidary liability of corporate officers with the recruitment agency “automatic” in character?

No. In order to hold the officers of the agency solidarily liable, it is required that there must be proof of

their culpability therefor. Thus, it was held in the 2013 case of Gagui v. Dejero, that while it is true that R.A. 8042 1

and the Corporation Code provide for solidary liability, this liability must be so stated in the decision sought to be implemented. Absent this express statement, a corporate officer may not be impleaded and made to personally answer for the liability of the corporation.

• What are some relevant principles on the persons liable for illegal recruitment?

1. Employees of a licensed recruitment agency may be held liable for illegal recruitment as principal by direct participation, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment.

2. Good faith and merely following orders of superiors are not valid defenses of an employee.

3. A manager of a recruitment/manning agency is not a mere employee. As such, he receives job applications, interviews applicants and informs them of the agency’s requirement of payment of performance or cash bond prior to the applicant’s deployment. As the crewing manager, he was at the forefront of the company’s recruitment activities.

THEORY OF IMPUTED KNOWLEDGE • What is meant by this theory?

Knowledge of the agent is deemed knowledge of the principal but not the other way around.

The theory of imputed knowledge is a rule that any information material to the transaction, either possessed by the agent at the time of the transaction or acquired by him before its completion, is deemed to be the knowledge of the principal, at least insofar as the transaction is concerned, even though the knowledge, in fact, is not communicated to the principal at all.

Sunace International Management Services, Inc. v. NLRC - The High Court here has the opportunity 2

to discuss the application of the theory of imputed knowledge. The OFW (Divina), a domestic helper in Taiwan, has extended her 12-month contract, after its expiration, for two (2) more years after which she returned to the Philippines. It was established by evidence that the extension was without the knowledge of the local recruitment agency, petitioner Sunace. The Court of Appeals, however, affirmed the Labor Arbiter’s and NLRC’s finding that Sunace knew of and impliedly consented to the extension of Divina’s 2-year contract. It went on to state that “It is undisputed that [Sunace] was continually communicating with [Divina’s] foreign employer.” It thus concluded that “[a]s agent of the foreign principal, ‘petitioner cannot profess ignorance of such extension as obviously, the act of the principal extending complainant (sic) employment contract necessarily bound it.’”

In finding that the application by the CA of this theory of imputed knowledge was misplaced, the High Court ruled that this theory ascribes the knowledge of the agent, Sunace, to the principal, employer Xiong, not the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent, Sunace. There being no substantial proof that Sunace knew of and consented to be bound under the 2-year

G.R. No. 196036, Oct. 23, 2013. 1

G.R. No. 161757, Jan. 25, 2006.

employment contract extension, it cannot be said to be privy thereto. As such, Sunace and its owner cannot be held solidarily liable for any of Divina’s claims arising from the 2-year employment extension. As the New Civil Code provides: “Contracts take effect only between the parties, their assigns, and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.”

TERMINATION OF CONTRACT OF MIGRANT WORKER WITHOUT JUST OR VALID CAUSE

• Can an OFW acquire regularity of employment?

No. The prevailing rule is that OFWs are contractual (fixed-term only), not regular, employees. In fact, they

can never attain regularity of employment. Theirs is always fixed-term in nature. • What are some relevant principles?

1. Indefinite period of employment of OFWs is not valid as it contravenes the explicit provision of the POEA Rules and Regulations on fixed-period employment.

2. OFWs do not become regular employees by reason of nature of work, that is, that they are made to perform work that is usually necessary and desirable in the usual business or trade of the employer. The exigencies of their work necessitate that they be employed on a contractual basis. This notwithstanding the fact that they have rendered more than twenty (20) years of service.

3. Regular employment does not result from the series of re-hiring of OFWs.

4. The fixed-period employment of OFWs is not discriminatory against them nor does it favor foreign employers. It is for the mutual interest of both the seafarer and the employer why the employment status

must be contractual only or for a certain period of time. Seafarers spend most of their time at sea and

understandably, they cannot stay for a long and an indefinite period of time at sea. Limited access to shore society during the employment will have an adverse impact on the seafarer. The national, cultural and lingual diversity among the crew during the contract of employment is a reality that necessitates the limitation of its period.

5. The expiration of the employment contracts of OFWs marks its ending.

• What is the effect of hiring a seafarer for overseas employment but assigning him to local vessel?

As held in OSM Shipping Philippines, Inc. v. NLRC, the non-deployment of the ship overseas did not 1

affect the validity of the perfected employment contract. After all, the decision to use the vessel for coastwise shipping was made by petitioner only and did not bear the written conformity of private respondent. A contract cannot be novated by the will of only one party. The claim of petitioner that it processed the contract of private respondent with the POEA only after he had started working is also without merit. Petitioner cannot use its own misfeasance to defeat his claim.

• What is the effect of non-deployment of OFW to overseas employment?

Petitioner-seafarer, in Santiago v. CF Sharp Crew Management, Inc. was not deployed overseas despite 2

the signing of a POEA-approved employment contract. One of his contentions is that such failure to deploy was an act designed to prevent him from attaining the status of a regular employee. The Supreme Court, however, disagreed and ruled that “seafarers are considered contractual employees and cannot be considered as regular

employees under the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. The exigencies of their work necessitate that they be employed on a contractual basis.”

• What is the doctrine of processual presumption?

“Presumed-identity approach” or “processual presumption” is an International Law doctrine which

dictates that where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as Philippine law. Thus, under this situation, Philippine labor laws should apply in determining the issues presented in a case.

• Is due process under Philippine law applicable to termination of employment of OFWs?

Yes. In the absence of proof of applicable foreign law, OFWs are entitled to due process in accordance with Philippine laws.

• Is the Agabon doctrine applicable to OFWs who are dismissed for cause but without due process?

Yes. The Agabon doctrine of awarding indemnity in the form of nominal damages in cases of valid termination for just or authorized cause but without procedural due process also applies to termination of OFWs. • Who has the burden of proof to show that the dismissal of the OFW is legal?

Burden of proof devolves on both recruitment agency and its foreign principal. • Are OFWs entitled to the reliefs under the Labor Code?

G.R. No. 138193, March 5, 2003. 1

G.R. No. 162419, July 10, 2007. 2

No. They are not entitled to such reliefs under Article 279 as reinstatement or separation pay in lieu of reinstatement or full backwages.

• What are the reliefs to which OFWs are entitled?

They are entitled to the reliefs provided under Section 10 of R.A. No. 8042, as amended, to wit: (1) All salaries for the unexpired portion of the contract;

(2) Full reimbursement of placement fees and deductions made with interest at 12% per annum. All the reliefs available to an illegally dismissed OFW are always monetary in nature.

It must be noted that under the 2009 Serrano doctrine, (Serrano v. Gallant Maritime Services, Inc.,), an 1

illegally dismissed OFW is now entitled to all the salaries for the entire unexpired portion of their employment

contracts, irrespective of the stipulated term or duration thereof. The underlined phrase in Section 10 below has

been declared unconstitutional in this case:

“In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement of his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for

three (3) months for every year of the unexpired term, whichever is less.”

However, R.A. No. 10022 (March 8, 2010), which amended R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995), has replicated and re-enacted the same unconstitutional provision exactly as above quoted.

The question is: was the unconstitutionality of the above-underlined part of the provision cured by such

replication or re-enactment in the amendatory law?

The 2014 en banc case of Sameer Overseas Placement Agency, Inc. v. Joy C. Cabiles, answered this in 2

the negative. The said provision was thus declared still unconstitutional and null and void despite its replication in R.A. No. 10022.

• What are some principles in regard to monetary awards to OFWs?

1. Monetary award to OFW is not in the nature of separation pay or backwages but a form of indemnity.

2. Only salaries are to be included in the computation of the amount due for the unexpired portion of the contract.

Overtime, holiday and leave pay and allowances are not included. However, this rule on exclusion of allowance does not apply in case it is encapsulated in the basic salary clause.

3. Entitlement to overtime pay of OFWs. - As far as entitlement to overtime pay is concerned, the correct criterion in determining whether or not sailors are entitled to overtime pay is not whether they were on board and cannot leave ship beyond the regular eight (8) working hours a day, but whether they actually rendered service in excess of said number of hours. An OFW is not entitled to overtime pay, even if guaranteed, if he failed to present any evidence to prove that he rendered service in excess of the regular eight (8) working hours a day.

4. In case of unauthorized deductions from OFW’s salary, he shall be entitled to the full reimbursement of the

deductions made with interest at 12% per annum. This is in addition to the full reimbursement of his placement fee with the same interest of 12% per annum plus his salaries for the unexpired portion of his employment contract if he is terminated without just, valid or authorized cause as defined by law or contract.

CLAIMS FOR DISABILITY AND DEATH BENEFITS OF OFWs

• Which/Who has jurisdiction over an OFW’s claims for disability and death benefits?

a) The Labor Arbiters, NOT the SSS, have jurisdiction over claims for disability, death and other benefits of OFWs.

b) Labor Arbiters have jurisdiction even if the case is filed by the heirs of the deceased OFW. • Is the Labor Code’s concept of permanent total disability similar to that of OFWs?

Yes. The concept of this kind of disability under Article 192 of the Labor Code is applicable to them as reiterated lately in the 2013 case of Kestrel Shipping Co., Inc. v. Munar.

• What are the requisites for compensability of injury or illness of seafarers? 1. It should be work-related; and

2. The injury or illness existed during the term of the seafarer’s employment contract.

G.R. No. 167614, March 24, 2009. 1

G.R. No. 170139, Aug. 05, 2014. The foreign employer alleged in this case that respondent’s dismissal was due to inefficiency in her work and negligence in her duties.

DIRECT HIRING ▪ What is direct hiring?

“Direct Hiring” refers to the process of directly hiring workers by employers for overseas employment as authorized by the DOLE Secretary and processed by the POEA, including:

1. Those hired by international organizations; 2. Those hired by members of the diplomatic corps;

3. Name hires or workers who are able to secure overseas employment opportunity with an employer without the assistance or participation of any agency.

▪ Does the POEA Administrator or the DOLE Secretary or DOLE Regional Director have the power to issue closure order?

Yes. If upon preliminary examination or surveillance, the DOLE Secretary, the POEA Administrator or DOLE Regional Director is satisfied that such danger or exploitation exists, a written order may be issued for the closure of the establishment being used for illegal recruitment activity.

• Does the DOLE Secretary have the power to issue warrant of arrest and search and seizure orders?

No. Salazar v. Achacoso, declared that the exercise by the DOLE Secretary of his twin powers to issue 1

arrest warrant and search and seizure orders provided under Article 38[c] of the Labor Code is unconstitutional. Only regular courts can issue such orders.

REMITTANCE OF FOREIGN EXCHANGE EARNINGS • Is remittance of foreign exchange earnings by OFWs mandatory?

Yes. It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the DOLE Secretary. It should be made through the Philippine banking system.

B.

EMPLOYMENT OF NON-RESIDENT ALIENS • What is an ALIEN EMPLOYMENT PERMIT (AEP)?

AEP - a document issued by the DOLE Secretary through the DOLE-Regional Director who has jurisdiction over the intended place of work of the foreign national, authorizing the foreign national to work in the Philippines.

• Who are required to procure AEP?

All foreign nationals who intend to engage in gainful employment in the Philippines are required to apply for AEP.

“Gainful employment” refers to a state or condition that creates an employer-employee relationship

between the

Philippine-based company and the foreign national where the former has the power to hire or dismiss the foreign national from employment, pays the salaries or wages thereof and has authority to control the performance or conduct of the tasks and duties.

• What are the categories of foreign nationals EXEMPTED from securing AEP?

a) All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government;

b) Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines;

c) All foreign nationals granted exemption by law;

d) Owners and representatives of foreign principals whose companies are accredited by the POEA, who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad;

e) Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government: provided that the exemption is on a reciprocal basis; and

G.R. No. 81510, March 14, 1990. 1

f) Permanent resident foreign nationals and probationary or temporary resident visa holders under Section 13 of the Philippine Immigration Act of 1940.

• What are the categories of foreign nationals EXCLUDED from securing AEP?

a) Members of the governing board with voting rights only and do not intervene in the management of the corporation or in the day-to-day operation of the enterprise.

b) Corporate officers as provided under the Corporation Code of the Philippines, Articles of Incorporation, and By-laws of the Corporation such as President, Secretary and Treasurer.

c) Those providing consultancy services who do not have employers in the Philippines.

d) Intra-corporate transferee who is a manager, executive or specialist as defined below in accordance with Trade Agreements and an employee of the foreign service supplier for at least one (1) year prior to deployment to a branch, subsidiary, affiliate or representative office in the Philippines:

(i) an EXECUTIVE: a natural person within the organization who primarily directs the management of the organization and exercises wide latitude in decision making and receives only general supervision or direction from higher level executives, the board of directors or stockholders of the business; an executive would not directly perform tasks related to the actual provision of the service or services of the organization;

(ii) a MANAGER: a natural person within the organization who primarily directs the organization/ department/ subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff; does not include first-line supervisors unless employees supervised are professionals; does not include employees who primarily perform tasks necessary for the provision of the service; or

(iii) a SPECIALIST: a natural person within the organization who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organization's service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession.

e) Contractual service supplier who is a manager, executive or specialist and an employee of a foreign service supplier which has no commercial presence in the Philippines:

(i) who enters the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines;

(ii) must possess the appropriate educational and professional qualifications; and

(iii) must be employed by the foreign service supplier for at least one (1) year prior to the supply of service in the Philippines.

• What is the validity of an AEP? One (1) year is the validity of an AEP.

Exception: When employment contract provides otherwise but not to exceed three (3) years. The AEP may be renewed subject to the conditions imposed by law.

C.

TRAINING AND EMPLOYMENT OF SPECIAL WORKERS 1.

APPRENTICES AND LEARNERS • What are the distinctions between learnership and apprenticeship?

The following are the distinctions:

1. Practical training. Both learnership and apprenticeship involve practical training on-the-job.

2. Training agreement. Learnership is governed by a learnership agreement; while apprenticeship is governed by an apprenticeship agreement.

2. Occupation. Learnership involves learnable occupations consisting of semi-skilled and other industrial

occupations which are non-apprenticeable; while apprenticeship concerns apprenticeable occupations

or any trade, form of employment or occupation approved for apprenticeship by the DOLE Secretary. 3. Theoretical instructions. Learnership may or may not be supplemented by related theoretical

instructions; while apprenticeship should always be supplemented by related theoretical instructions. 4. Ratio of theoretical instructions and on-the-job training. For both learnership and apprenticeship, the

normal ratio is one hundred (100) hours of theoretical instructions for every two thousand (2,000) hours of practical or on-the-job training. Theoretical instruction time for occupations requiring less than two thousand (2,000) hours for proficiency should be computed on the basis of such ratio.

5. Competency-based system. Unlike in apprenticeship, it is required in learnership that it be implemented based on the TESDA-approved competency-based system.

6. Duration of training. Learnership involves practical training on the job for a period not exceeding

three (3) months; while apprenticeship requires for proficiency, more than three (3) months but not

over six (6) months of practical training on the job.

7. Qualifications. The law does not expressly mention any qualifications for learners; while the following qualifications are required to be met by apprentices under Article 59 of the Labor Code:

(a) Be at least fourteen (14) years of age;

(b) Possess vocational aptitude and capacity for appropriate tests; and

(c) Possess the ability to comprehend and follow oral and written instructions.

CONFLICT IN THE AGE REQUIREMENT FOR APPRENTICES:

Under the Labor Code as stated above – 14 years of age

Under the Labor Code’s Implementing Rules – “Be at least 15 years of age, provided those who are at

least 15 years of age but less than 18 may be eligible for apprenticeship only in non-hazardous occupations.”

CONFLICT, HOW RESOLVED:

It should be 15 years of age but the more appropriate basis is not the Labor Code’s Implementing Rules (which cannot amend the Labor Code) but another law, R.A. No. 9231, (“AN ACT PROVIDING FOR THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING STRONGER PROTECTION FOR THE WORKING CHILD“) where it is provided that:

(1) All persons under eighteen (18) years of age shall be considered as a “child”; and

(2) Children below fifteen (15) years of age shall not be employed EXCEPT if he/she falls under any of the exceptions mentioned and enumerated in the law.

8. Circumstances justifying hiring of trainees. Unlike in apprenticeship, in learnership, the law, Article 74 of the Labor Code, expressly prescribes the pre-requisites before learners may be validly employed, to wit:

(a) When no experienced workers are available;

(b) The employment of learners is necessary to prevent curtailment of employment opportunities; and (c) The employment does not create unfair competition in terms of labor costs or impair or lower

working standards.

9. Limitation on the number of trainees. In learnership, a participating enterprise is allowed to take in learners only up to a maximum of twenty percent (20%) of its total regular workforce. No similar cap is imposed in the case of apprenticeship.

10. Option to employ. In learnership, the enterprise is obliged to hire the learner after the lapse of the learnership period; while in apprenticeship, the enterprise is given only an “option” to hire the apprentice as an employee.

11. Wage rate. The wage rate of a learner or an apprentice is set at seventy-five percent (75%) of the statutory minimum wage.

2.

DISABLED WORKERS (PERSONS WITH DISABILITY) (R.A. No. 7277, as Amended by R.A. No. 9442) • Who are persons with disability (PWDs)?

“Persons with Disability” are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being.

• What is impairment?

“Impairment” refers to any loss, diminution or aberration of psychological, physiological, or anatomical structure or function.

• What is disability?

“Disability” means (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical functions of an individual or activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.

• What is handicap?

“Handicap” refers to a disadvantage for a given individual, resulting from an impairment or a disability that limits or prevents the function or activity that is considered normal given the age and sex of the individual.

a.

• What are the rights of PWDs?

Under the law, PWDs are entitled to equal opportunity for employment. Consequently, no PWD shall be denied access to opportunities for suitable employment. A qualified employee with disability 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.

• What is the wage rate of PWDs?

The wage rate of PWDs is 100% of the applicable minimum wage. • What is the wage rate of PWD if hired as apprentice or learner?

A PWD hired as an apprentice or learner shall be paid not less than seventy-five percent (75%) of the applicable minimum wage.

b.

DISCRIMINATION ON EMPLOYMENT • What is the rule on discrimination against employment of PWDs?

No entity, whether public or private, shall discriminate against a qualified PWD by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. The following constitute acts of discrimination:

(a) Limiting, segregating or classifying a job applicant with disability in such a manner that adversely affects his work opportunities;

(b) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a PWD unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity;

(c) Utilizing standards, criteria, or methods of administration that: (1) have the effect of discrimination on the basis of disability; or

(2) perpetuate the discrimination of others who are subject to common administrative control.

(d) Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified employee with disability, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;

(e) Favoring a non-disabled employee over a qualified employee with disability with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter’s disability; (f) Re-assigning or transferring an employee with a disability to a job or position he cannot perform by

reason of his disability;

(g) Dismissing or terminating the services of an employee with disability by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity; provided, however, that the employer first sought to provide reasonable accommodations for persons with disability;

(h) Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the applicant or employee with disability that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and

(i) Excluding PWD from membership in labor unions or similar organizations.

---oOo---

MAJOR TOPIC 3

LABOR STANDARDS

• Who are covered by the labor standards provisions of the Labor Code?

Employees in ALL establishments, whether operated for profit or not, are covered by the law on labor standards.

• Who are excluded?

The following are excluded from the coverage of the law on labor standards: a. Government employees;

b. Managerial employees;

c. Other officers or members of a managerial staff;

d. Domestic workers or kasambahay and persons in the personal service of another; e. Workers paid by results;

f. Non-agricultural field personnel; and g. Members of the family of the employer.

2.

HOURS OF WORK a.

PRINCIPLES IN DETERMINING HOURS WORKED

• What are compensable hours worked?

The following shall be considered as compensable hours worked:

a) All time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed workplace; and

b) All time during which an employee is suffered or permitted to work.

“Fair day’s wage for a fair day’s labor,” remains the basic factor in determining the employees’

wages and backwages.

b.

NORMAL HOURS OF WORK • What is the total normal hours of work per day?

Eight (8) hours daily.

• What is overtime work?

Any work in excess of said eight (8) normal hours is considered overtime work. • May normal working hours be reduced?

Yes, provided that no corresponding reduction is made on the employee’s wage or salary equivalent to an 8-hour work day. In instances where the number of 8-hours required by the nature of work is less than 8 8-hours, such number of hours should be regarded as the employee’s full working day.

• What are flexible working hours?

“Flexible work arrangements” refer to alternative arrangements or schedules other than the traditional or

standard work hours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements should be temporary in nature.

Under R.A. No. 8972, otherwise known as “The Solo Parents’ Welfare Act of 2000,” solo parents are allowed to work on a flexible schedule. The phrase “flexible work schedule” is defined in the same law as the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer.

i.

• What is compressed work week?

“Compressed Workweek” or “CWW” refers to a situation where the normal workweek is reduced to less

than six (6) days but the total number of work-hours of 48 hours per week remains. The normal workday is increased to more than eight (8) hours but not to exceed twelve (12) hours, without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is five (5) days. • What are the conditions for its validity?

The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the

covered employees or their duly authorized representatives.

• How should compensation be made under a valid CWW?

Unless there is a more favorable practice existing in the firm, work beyond eight (8) hours will not be

compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond twelve (12) hours a day or forty-eight (48) hours a

week shall be subject to overtime pay.

ii.

POWER INTERRUPTIONS/BROWNOUTS

• What are the effects of power interruptions/brownouts?

The following are the effects of work interruption due to brownouts:

a. Brown-outs of short duration but not exceeding twenty (20) minutes shall be treated as worked or compensable hours whether used productively by the employees or not.

b. Brown-outs running for more than twenty (20) minutes may not be treated as hours worked provided any of the following conditions are present:

1. The employees can leave their workplace or go elsewhere whether within or without the work premises; or

2. The employees can use the time effectively for their own interest.

c. In each case, the employer may extend the working hours of his employees outside the regular schedules to compensate for the loss of productive man-hours without being liable for overtime pay.

c.

MEAL BREAK (Article 85, Labor Code) • What is the rule on time-off for regular meal?

Every employer is required to give his employees, regardless of sex, not less than one (1) hour (or 60 minutes) time-off for regular meals.

• Is meal break compensable?

Being time-off, it is not compensable hours worked. In this case, the employee is free to do anything he wants, except to work. If he is required, however, to work while eating, he should be compensated therefor.

d.

WAITING TIME

(Article 84, Labor Code)

•When is waiting time compensable?

Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait. Time spent waiting for work is compensable if it is spent “primarily for the benefit of the employer and [its] business.”

e.

OVERTIME (Article 87, Labor Code) • What are some basic principles on overtime work?

1. Work rendered after normal eight (8) hours of work is called “overtime work.”

2. In computing overtime work, "regular wage" or "basic salary" means "cash" wage only without deduction for facilities provided by the employer.

3. "Premium pay" means the additional compensation required by law for work performed within eight (8) hours on non-working days, such as regular holidays, special holidays and rest days.

4. "Overtime pay" means the additional compensation for work performed beyond eight (8) hours. 5. Illustrations on how overtime is computed: