Labor Law-San Beda

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SAN BEDA COLLEGE OF LAW

MEMORY AID in LABOR LAW

Any form of reproduction of this copy is strictly prohibited!!!

PRELIMINARY TITLE

CHAPTER I

GENERAL PROVISIONS

ART 1. NAME OF DECREE

☛ LABOR LEGISLATION - Consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. It is divided into labor standards and labor relations. ☛ LABOR STANDARDS - Are the minimum

requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards.

LABOR RELATIONS LAW - defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives.

- The law which seeks to stabilize the relation between employer and employee, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration.

ART. 2. DATE OF EFFECTIVITY

☛ The Labor Code took effect on November 1, 1974 (six months after its promulgation on May 1,1974)

☛ SEVEN (7) BASIC RIGHTS OF WORKERS AS GUARANTEED BY THE CONSTITUTION (OCESHLP): 1. Right to Organize

2. Right to Conduct Collective Bargaining or Negotiation with Management 3. Right to Engage in Peaceful Concerted Activities including strike in accordance with law

4. Right to Enjoy Security of Tenure 5.Right to Work Under Humane Conditions 6.Right to Receive a Living Wage

7.Right to Participate in Policy & Decision-Making Processes affecting their rights and benefits as may be provided by law

RELATED LAWS:

1. CIVIL CODE: see Arts. 1700, 1701and 1703 2. REVISED PENAL CODE: Art. 289

3. OTHERS: SSS Law, GSIS Law, Agrarian Reform Law, the 13th month pay law, the Magna Carta for Public Health Workers, etc. ☛ RATIONALE :

- The raison d’ etre of labor laws is the POLICE POWER of the State

ART 3. DECLARATION OF BASIC POLICY

The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, age or creed, and regulate the relations between workers and employers. The State shall assure the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

☛ EMPLOYER - one who employs the services of others; one for whom employees work and who pays their wages or salaries. ☛ EMPLOYEE - one who works for an employer; a person working for salary or wages

ART 4. CONSTRUCTION IN FAVOR OF LABOR

☛ CONSTRUCTION IN FAVOR OF LABOR CLAUSE -this is with a view to apply the Code to the greater number of employees to enable them to avail of the benefits under the law (Abella vs. NLRC). The working man’s welfare should be the primordial consideration. - This rule is applicable if there is a doubt as

to the meaning of the legal or contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms.

- These laws should be interpreted with a view to the fact that they are remedial in nature, they are enacted to better the lot

LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP

MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon

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SAN BEDA COLLEGE OF LAW

MEMORY AID in LABOR LAW

Any form of reproduction of this copy is strictly prohibited!!!

and promote the welfare of the members of the laboring class.

- Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order.

- Courts adopt a liberal approach that favors the exercise of labor rights. The mandate under Art. 4 is simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is.

MANAGEMENT RIGHTS: (CPST) C Right to conduct business P Right to prescribe rules S Right to select employees

T Right to transfer or discharge employees ☛ MANAGEMENT PREROGATIVE

Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including:

HIRING, WORK ASSIGNMENTS, WORKING METHODS, TIME PLACE AND MANNER OF WORK, TOOLS TO BE USED, PROCESSES TO BE FOLLOWED, SUPERVISION OF WORKERS, WORKING REGULATIONS, TRANSFER OF EMPLOYEES, WORK SUPERVISION, LAY-OFF OF WORKERS, AND DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD) Thus, so long as management prerogatives

are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of employees under special law or under valid agreements, it shall be upheld.

ART 5. RULES AND REGULATIONS - The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.

ART 6. APPLICABILITY

☛ AGRICULTURAL OR FARM WORKER - one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activities performed by a farmer as an incident to or in conjunction with such farming operations.

- There may be in one employer both agricultural as well as industrial workers. - PURPOSE of the provision: intended to

encourage workers to seek employment in agricultural enterprises instead of migrating to already overcrowded urban areas to find work in industrial establishments

- The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code.

FARM EMPLOYER-FARM WORKER RELATIONSHI P TENANCY RELATIONSHIP

- The lease is one of labor with the agricultural laborer as the lessor of his services and the farm employer as the lessee

- It is the landowner who is the lessor and the tenant the lessee of

agricultural land

- The agricultural worker works for the farm employer and for his labor he receives a salary or wage, regardless of whether the

employer makes a profit.

- The tenant derives his income from the agricultural produce or harvest

LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP

MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon

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CHAPTER II

EMANCIPATION OF TENANTS

(Note: not included as per SC Memo) ✍ ART 7-11

- Share tenancy has been abolished placing in its stead leasehold system.

- Under Art. 8, the land covered by operation land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in are.

Present retention limits:

- 5 hectares per landowner and 3 hectares per child provided the child is:

1. Is at least 15 years of age; and

2. Actually tilling the land or directly managing the farm

EXCEPTIONS:

- those covered by homestead patents - those covered by PD 27

EMANCIPATION PATENT - is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation pf the tenant from the bondage of the soil.

PROHIBITION AGAINST ALIENATION IS INTENDED TO:

1. Preserve the landholding in the hands of the owner-tiller and his heirs;

2. minimize land speculation; and

3. prevent a return to the regime of land ownership by a few.

BOOK ONE

PRE-EMPLOYMENT

TITLE I

RECRUITMENT AND PLACEMENT OF

WORKERS

CHAPTER I

GENERAL PROVISIONS

ART 13. DEFINITIONS

WORKER -any member of the labor force, whether employed or unemployed

☛ RECRUITMENT AND PLACEMENT - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; PROVIDED, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. (CEC-TUCP) (RCPA)

-The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates the presumption.

ART 16. PRIVATE RECRUITMENT ENTITIES AUTHORIZED TO RECRUIT 1. Public employment offices

2. Private recruitment entities; private employment agencies

3. Shipping or manning agents or representatives

4. The POEA

5. Construction contractors if authorized by the DOLE and the Construction Industry Authority

6. Members of the diplomatic corps (but hirings must also go thru POEA)

7. Other persons or entities as may be authorized by the DOLE secretary

DOCUMENTATION OF WORKERS: 1. Contract Processing – workers hired thru the

POEA shall be issued the individual employment contract and such other documents as may be necessary for travel 2. Passport Documentation

3. Visa Arrangement ✍ ART 17. (POEA)

- POEA has taken over the functions of the OEDB

ADJUDICATORY FUNCTIONS OF THE POEA :

a. All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and

b. Disciplinary action cases and other special cases which are administrative in character,

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involving employers, principals, contracting partners and Filipino Migrant Workers

JURISDICTION TRANSFERRED TO THE LABOR ARBITERS OF THE NLRC : a. claims arising out of an employer-employee

relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.

☛ Venue – Money claims or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated, at the option of the complainant.

Compromise Agreement - Consistent with the policy encouraging amicable settlement of labor disputes, Sec 10, RA 8042 allows resolution by compromise of cases filed with the NLRC.

PREMATURE TERMINATION OF

CONTRACT - Where the worker’s employment contract is terminated long before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Int’l Construction Corp. vs. NLRC).

HOWEVER, under R.A. 8042, if the illegal dismissal took place on or after July 15, 1995, the illegally dismissed overseas worker shall be entitled to the full reimbursement of his placement fee with interest at the rate of 12% per annum plus salary for the unexpired portion of his employment contract or for 3 mos. for every year of the unexpired term whichever is LESS.

- Claims for death and burial benefits involving seamen OCWs which the POEA has jurisdiction are not the same as the claims against the State Insurance Fund of the LC.

- The basis for the award of backwages is the parties” employment contract, stipulating the wages and benefits.

- The fact that the employee has signed a satisfaction receipt does not result in waiver; the law does not consider as

valid any agreement to receive less compensation than what the worker is entitled to recover.

(MR Yard Crew Union vs. PNR)

ART 18. BAN ON DIRECT-HIRING Direct hiring of Filipino workers by a

foreign employer is not allowed. EXCEPTIONS :

the members of the diplomatic corps; international organizations;

such other employers as may be allowed by the Department of Labor and employment 1. name hirees – individual workers who are

able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation or any agency

☛ RATIONALE OF THE PROHIBITION - Filipino workers hired directly by a

foreign employer, without government intervention may not be assured of the best possible terms and conditions of work. The foreign employer must also be protected and may chance upon a Filipino worker who do not possess sufficient knowledge for which he is employed.

MINIMUM EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT:

1. Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the Administration

2. Free Transportation from point of hire to site of employment and return;

3. Free emergency medical and dental treatment and facilities;

4. Just causes for termination of the contract or of the services of the workers;

5. Workmen’s compensation benefits and war hazard protection;

6. Repatriation of worker’s remains and properties in case of death to the point of hire, or if this is not possible the possible disposition thereof

7. Assistance on remittance of worker’s salaries, allowances or allotments to his beneficiaries; and

8. Free and adequate board and lodging facilities or compensatory food allowance at prevailing cost of living standards at the jobsite.

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ART 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS MANDATORY REMITTANCE REQUIREMENTS:

1. Seamen or mariners: 80% of the basic salary;

2. Workers for Filipino Contractors and Construction Companies: 70% of the basic salary;

3. Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities: same as #2

4. All other professionals without board and lodging: 50% of the basic salary;

5. Domestic and other service of workers; 50% of the basic salary.

ART 25. PRIVATE SECTOR

PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS

☛ QUALIFICATIONS FOR

PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM:

1. Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens;

2. Minimum capitalization of 1M in case of single proprietorship or partnership and a minimum of 1M paid-up capital for corporations;

3. Those not otherwise disqualified by law or these guidelines to engage in the recruitment and placement of workers for overseas employment

☛ DISQUALIFICATIONS:

1. Travel agencies and sales agencies of airline companies;

2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, when any of

its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency.

4. Persons, partnerships, or corporations which have derogatory records;

5. Persons employed in the Department of Labor or in other government agencies directly involved in overseas employment

program and their relatives within the 4th degree of consanguinity or affinity; or

6. Those whose license has been previously canceled or revoked.

CHAPTER II

REGULATIONS OF RECRUITMENT

AND PLACEMENT ACTIVITIES

ART 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

- No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. - Licensees or holders of authority or their

duly authorized representatives may as a rule, undertake recruitment and placement activities only at their authorized official addresses.

- Change of ownership or relationship of single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license. - All overseas landbased workers shall be

provided both life and personal accident insurance.

GROUNDS FOR DISCIPLINARY ACTION (Under the MWA of 1995) ;

1. Commission of a felony punishable by the laws of the Philippines or by the host country;

2. Drug addiction or possession or trafficking of prohibited drugs;

3. Desertion or abandonment;

4. Drunkenness, especially where the laws of the of the host country prohibit the same; 5. Gambling, especially where the laws of the

host country prohibit the same;

6. Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions;

7. Creating trouble at the worksite or in the vessel;

8. Embezzlement of company funds or of money an properties of a fellow worker entrusted for delivery to kins or relatives in the Philippines;

9. Theft or robbery; 10. Prostitution;

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12. Gunrunning or possession of deadly weapons;

13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency; and

14. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker.

ART 31. BONDS

- Cash bond filed by applicants for license or authority is not subject to garnishment by judgment creditor of agency

ART 32. FEES TO BE PAID BY WORKERS

- Suspension or cancellation of licenses may include award of damages to repair the injury caused to its victims.

ART 34. PROHIBITED PRACTICES - A supplementary contract beneficial to

worker not violative of protection afforded by the State to workers.

ART 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

☛ NON-LICENSEE OR NON-HOLDER OF AUTHORITY - any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.

CHAPTER III

MISCELLANEOUS PROVISIONS

ART 38. ILLEGAL RECRUITMENT (as

per RA 8042 otherwise known as the Migrant Workers’ Act of 1995)

ILLEGAL RECRUITMENT - Any 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 when undertaken by a non-licensee or non-holder of authority.

PROVIDED that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the commission of prohibited acts whether committed by a non-licensee or non-holder of authority or a licensee or holder of authority. ☛ PROHIBITED PRACTICES:

(CFGIIEOFSBWF)

C to charge or accept amount beyond amount allowed by law

F to furnish or publish false notice or information in relation to Recruitment and Placement

G to give any false notice and information or commit any act of misrepresentation to secure license or authority

I Induce or attempt to induce workers to quit employment to offer him another except if the transfer is to liberate a worker from oppressive terms and conditions of employment (NOTE: it is not necessary that worker was actually induced or did quit employment)

I to influence or attempt to influence any person or entity not to employ any worker who has not applied for employment in his agency

E to engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Phil.

O Obstruct or attempt to obstruct inspection by Secretary

F Fail to file reports

S Substitute or alter employment contracts B Become officer or Board member of

corporation engaged in travel agency W Withhold or deny travel documents

before the departure for monetary or financial consideration other than those authorized by the Code.

F Failure to actually deploy without valid reason as determined by the DOLE

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F Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault

THE QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL RECRUITMENT AS A CRIME INVOLVING ECONOMIC SABOTAGE ARE :

When committed by a SYNDICATE i.e., if it is carried out by a group of three (3) or more persons conspiring and confederating with one another; or

(a) When committed in a LARGE SCALE i.e., if it is committed against three (3) or more persons

VENUE OF ACTIONS ON ILLEGAL RECRUITMENT:

1. RTC of the province or city where the offense was committed; or

2. where the offended party resides at the time of the commission of the offense

at the option of the complainant - These circumstances only qualify. They do

not define the offense themselves

- Recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment. ART. 38 ( c ) declared unconstitutional since

only a judge may issue search warrant/ warrant of arrest. The Sec. Of Labor may only recommend not issue. However, Closure of establishments of illegal recruiters may still be ordered by Secretary of Labor, same being essentially administrative and regulatory in nature.(Salazar vs. Achacoso and Marquez)

PRESCRIPTIVE PERIOD

Illegal Recruitment cases under RA 8042 shall prescribe in five (5) years Provided, however, That illegal recruitment cases involving economic sabotage shall prescribe in twenty (20) years.

TITLE II

EMPLOYMENT OF NON-RESIDENT

ALIENS

ART 40. EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS

-Foreigners or domestic and foreign employers desiring to employ aliens must secure employment permit from the DOLE upon determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the alien is desired.

- Foreigners may not be employed in certain nationalized business.

- a non-resident alien worker and the employer shall bind themselves to train at least 2 Filipino understudies.

PROHIBITION AGAINST

EMPLOYMENT OF ALIENS

Section 2-A of the Anti-Dummy Law prohibits the employment of aliens in establishment or entities which have under their name or control a right, franchise, privilege, property or business the exercise or enjoyment of which property or business the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned by such citizens.

EXCEPTIONS TO THE

PROHIBITION:

a. where the Secretary of Justice specifically authorizes the employment of technical personnel; or

b. where the aliens are elected members of the board of directors or governing body of corporations or association in proportion to their allowable participation in the capital of such entities.

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HUMAN RESOURCES

DEVELOPMENT

TITLE I

NATIONAL MANPOWER

DEVELOPMENT PROGRAM

CHAPTER I

NATIONAL POLICIES AND

ADMINISTRATIVE MACHINERY FOR

THEIR IMPLELENTATION

ART 45. DEFINITIONS

☛ MANPOWER - that portion of the nation’s population which has actual or potential capability to contribute directly to the production of goods and services.

ENTREPRENEURSHIP - training for self-employment or assisting individual or small industries within the purview of this the LC.

TITLE II

TRAINING AND EMPLOYMENT OF

SPECIAL WORKERS

CHAPTER I

APPRENTICES

Types of Special Workers: 1. Apprentice

2. Learners 3. Handicapped

ART 58. DEFINITION OF TERMS

APPRENTICESHIP - practical training on the job supplemented by related theoretical instruction

APPRENTICE - worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter

☛ APPRENTICEABLE OCCUPATION - any trade, form of employment or occupation which requires more than 3 months of practical training on the job supplemented by related theoretical instruction

☛ APPRENTICESHIP AGREEMENT - an employment contract wherein the employer

binds himself to train the apprentice and the apprentice in turn accepts the terms of training ☛ ON-THE-JOB TRAINING – the practical work experience through actual participation in productive activities given to or acquired by an apprentice

HIGHLY TECHNICAL INDUSTRIES – trade, business, enterprise, industry or other activity, which is engaged in the application of advanced technology

ART 59. QUALIFICATIONS OF APPRENTICES

☛ Qualifications of an Apprentice

1. at least 15 years of age; provided those who are at least 15 years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations and the apprenticeship agreement shall be signed in his behalf by the parent or guardian or authorized representative of DOLE.

2. vocational aptitude/ capacity for appropriate test

3. ability to comprehend and follow oral and written instructions

ART 60. EMPLOYMENT OF APPRENTICES

- Only employers in highly technical industries may hire apprentices and only in apprenticeable occupations as determined by the Sec. Of Labor

Requisites for a VALID APPRENTICESHIP

1. QUALIFICATIONS OF THE APPRENTICE 2. APPRENTICESHIP AGREEMENT DULY EXECUTED AND SIGNED PROVIDING FOR COMPENSATION NOT LESS THAN 75% OF THE APPLICABLE MINIMUM WAGE, EXCEPT ON-THE-JOB TRAINING (OJT)

3.APPRENTICESHIP PROGRAM DULY APPROVED BY DOLE

4. PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS.

ART 71. DEDUCTIBILITY OF TRAINING COSTS

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Requisites for tax deductions in case employers have apprenticeship

programs:

1. Program duly recognized by the Department of Labor

2. Deduction shall not exceed 10% of direct labor wage

3. Pay his apprentices the minimum wage ✍ ART 72. APPRENTICES WITHOUT COMPENSATION

Apprentices who may be hired without compensation:

1.those whose training on the job is required by the school;

2.Training Program Curriculum; 3.Requisite for Graduation; or 4.A requisite for Board Examination

CHAPTER II

LEARNERS

ART 73. LEARNERS DEFINED

LEARNERS - persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time which shall not exceed 3 mos. APPRENTICESHIP LEARNERSHIP 1. Practical training on the job supplemented by related theoretical instruction. 1. Hiring of persons as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time. 2. Not less than 3

months practical training on the job but not more than 6 months

2. Practical training on the job not to exceed 3 mos.

3. No Commitment to

hire 3. With Commitment to employ the

learner as regular employee if he desires upon completion of learnership 4. In case of pretermination of the apprenticeship agreement, the worker is not considered as a regular employee 4. Learner is considered as a regular employee in case of pretermination of contract after 2 mos. of training and the dismissal is without fault of learner

5. Highly technical industries and only in industrial occupation

5. Semi-skilled / industrial occupations

Learners in piecework/ incentive - rate jobs are to be paid in full for the work done.

CHAPTER III

HANDICAPPED WORKERS

ART 78. DEFINITION

HANDICAPPED WORKERS - Are those whose earning capacity is impaired by age or physical or mental deficiency or injury.

- Subject to the provisions of the Code, handicapped workers may be hired as regular workers, apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they were hired.

- 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. Even a handicapped worker can acquire the status of a regular employee.

Duration of employment - no minimum, no maximum. Dependent on agreement but is necessary that there is a specific duration

BOOK THREE

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TITLE I

WORKING CONDITIONS AND REST

PERIODS

CHAPTER I

HOURS OF WORK

ART 82. COVERAGEELEMENTS OF EMPLOYER-EMPLOYEE RELATIONSHIP: 1. selection and engagement of the employee

2. the payment of wages 3. the power of dismissal

4. the employer’s power to control the employee (with respect to the means and methods by which the work is to be accomplished)

- The last element as mentioned above is what is known as the CONTROL TEST - whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. This last element is the most important index of the existence of the relationship.

EMPLOYEE - A natural person who is hired, directly or indirectly, by a natural or juridical person to perform activities related to the business of the “hirer” who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the hire.

Employees Exempt from the Benefits of E-E Relationship

1. Government Employees 2. Managerial Employees 3. Field Personnel

4. Family Members dependent on the employer for support

5. Domestic Helpers

6. Persons on the Personal Service of another 7. Workers Paid by Result

GOVERNMENT EMPLOYEES - Refers only to employees of government agencies, instrumentalities or political subdivisions and of government corporations that are not incorporated under the Corporation Code, meaning those which have original charters.

MANAGERIAL EMPLOYEES - Refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other members of the managerial staff

☛ Note: Definition applies only to the 8- hour Labor law

FIELD PERSONNEL - Refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

WORKERS PAID BY RESULTS - Method of computing compensation based on the work completed and not on the time spent in working.

☛ PIECE-RATE METHOD - Where pay is dependent on unit of product finished, preferred where the work process is repetitive and the out put is standardized and easily countable.

DOMESTIC HELPERS/ PERSONS

RENDERING PERSONAL SERVICES - Perform services in the employers home which are usually necessary and desirable for the maintenance or enjoyment thereof, or ministers to the personal comfort, convenience or safety of the employer, as well as the members of the employer’s household.

- The existence of employment relationship is determined by law and not by contract. - Whether or not an employer-employee

relationship exists between the parties is a question of fact. The findings of the NLRC are accorded not only respect but finality if supported by substantial evidence.

☛ MANAGEMENT PREROGATIVE - except as otherwise limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place, and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers.

- Management prerogative recognizes the right of the employer to advance its interest to prescribe standards of work and impose reasonable quotas or work

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assignments, and failure on the part of the employees to meet the requirement, impose in good faith, constitutes a just cause for his dismissal.

- New owner/management group has no obligation to re-employ workers who freely and voluntarily accepted their separation pay and other benefits. A change of ownership in a business concern is not proscribed by law.

ART 83. NORMAL HOURS OF WORK - Shall not exceed 8 hours in a regular working day

☛ PURPOSE

- to safeguard the health and welfare of the laborer and in a way to minimize unemployment by utilizing different shifts ☛ REGULAR WORKING DAYS: The regular working days of covered employees shall not be more than five days in a workweek. The workweek may begin at any hour and on any day, including Saturday or Sunday, designated by the employer.

ART 84. HOURS WORKED SHALL INCLUDE:

1. All time during which an employee is required to be on duty or to be at a prescribed workplace; and

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

PRINCIPLES IN DETERMINING HOURS WORKED:

1. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hour are spent in productive labor or involve physical or mental exertion;

2. An employee need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his workplace, to go elsewhere whether within or outside the premises of his workplace;

3. If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked if the

work is with the knowledge of his employer or immediate supervisor

4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. - Only the maximum is prescribed, not minimum.

Part- time work is therefore not prohibited. ENGAGED TO WAIT - when waiting is an integral part of the job, it is compensable

WAITING TO BE ENGAGED - idle time is not working time, not compensable

WHEN TRAVEL TIME

COMPENSABLE:

1. Travel from home to work- refers to ordinary work travel but where the worker is made to work on an emergency call and travel is necessary in proceeding to the workplace, the time spent on travel is compensable 2. Travel that is all in a day’s work- time spent

by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked.

3. Travel away from home- travel that keeps an employee away from home overnight.

- Work hours of seamen are governed by the same rules as land based employees. Thus, they must show sufficient proof that said work is actually performed.

Rest Periods of short duration during working hours shall be considered as hours worked.

Preliminary activities compensable when controlled or required by employer and are pursued necessarily and primarily for the employer’s benefit,

ART 85. MEAL PERIODS ☛ MEAL PERIODS

1. Should not be less than sixty (60) minutes, and is time-off/non-compensable

2. Under specified cases, may be less than sixty (60) minutes, but should not be less

(12)

than twenty (20) minutes an must be with full pay.

3. If less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time

NOTE: Employee must be completely relieved from duty. Otherwise, it is compensable as hours worked.

- Mealtime is not compensable EXCEPT in cases where the lunch period or meal time is predominantly spent for the employer’s benefit or where it is less than 60 minutes.

- Employees may request that their meal period be shortened so that they can leave work earlier that the previously established schedule.

☛ REQUISITES :

1. The employees voluntarily agree in writing to a shortened meal period and are willing to waive the overtime pay for such shortened meal period;

2. No diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period;

3. Work does not involve strenuous physical exertion and they are provided with adequate coffee breaks;

4. The value of benefits is equal with the compensation due them for the shortened meal period

5. OT pay will become due and demandable after the new time schedule; and

6. The arrangement is of temporary duration. ✍ART 86. NIGHT SHIFT DIFFERENTIAL NIGHT SHIFT DIFFERENTIAL -Additional compensation of not less than ten percent (10%) of an employee’s regular wage for every hour of work done between 10:00 PM and 6:00 AM, whether or not this period is part of the worker’s regular shift.

- If work done between 10 PM and 6 AM is overtime work, then the 10% night shift differential should be based on his overtime rate.

RATIONALE

- it serves as an inducement of employment

ART 87. OVERTIME WORK

☛ O VERTIME PAY - Additional compensation for work performed beyond eight (8) hours within the worker’s 24-hour workday.

30% of 130% if on a special holiday/rest day 1. 25% of regular wage if done on a regular

workday

2. 30% of 150% if on special holiday AND rest day

3. 30% of 200% if on a regular holiday ☛ RATIONALE

- employee is given OT pay because he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do.

- As a rule, cannot be waived, as it is intended to benefit laborers and employees. But when the waiver is made in consideration of benefits and privileges which may even exceed the overtime pay, the waiver may be permitted.

NOTE: OT pay will not preclude payment of night shift differential pay.

- Meal periods during overtime work is not given to workers performing overtime for the reason that OT work is usually for a short period ranging from one to three hours and to deduct from the same one full hour as meal period would reduce to nothing the employee’s OT work.

WORK DAY - the 24-hour period which commences from the time the employee regularly starts to work. e.g., if the worker starts to work 8 am today, the workday is from 8am today up to 8 am tom.

- The minimum normal working hours fixed by the Act need not be continuous to constitute the legal working day

- Express approval by a superior is not a prerequisite to make overtime work compensable. HOWEVER, written authority after office hours during rest days and holidays are required for entitlement to compensation.

- The right to OT pay cannot be waived. Such waiver is contrary to law and public policy.

(13)

1. When the waiver stipulates higher payment or rate of OT pay; or

2. Where the contract of employment requires work for more than eight hours of work at specified wage per day providing for a fixed hourly rate or that the daily wages include overtime pay.

COMPRESSED WORKWEEK -allowable under the following conditions:

1. It is voluntary on the part of the worker 2. There will be no diminution of the weekly or

monthly take-home pay and fringe benefits of the employees;

3. The value of the benefits that will accrue to the employees under the proposed schedule is more than or at least commensurate with the one-hour OT pay that is due them during weekdays based on the employee’s quantification

4. The one-hour OT pay will become due and payable if they are made or permitted to work on a day not scheduled for work on the compressed work week

5. The work does not involve strenuous physical exertion and employees must have adequate rest periods

5. The arrangement is of temporary duration. ✍ ART 88. UNDERTIME NOT OFFSET BY OVERTIME

Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation.

RATIONALE

- An employee’s regular pay rate is lower than the overtime rate. Offsetting the undertime hours against the overtime hours would result in undue deprivation of the employee’s extra pay for overtime work.

ART 89. EMERGENCY OVERTIME WORK

WHEN WORKER MAY BE REQUIRED TO RENDER OT:

(WNUNCN)

W 1. Country is at war or any other national/local emergency has been declared by the Chief Executive/Congress

N 2. Necessary to prevent loss of life/property/ in case of actual/impending emergency in the locality

U 3. There is urgent work to be performed on machines, installations, or equipment in order to avoid serious loss/damage to the employer or some other causes of similar nature

N 4. Work is necessary to prevent loss/damage to perishable goods; and C 5. where the completion or continuation

of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

N 6. when it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon

ART 90. REGULAR WAGE

- include the cash wage only, without deduction on account of facilities provided by the employer

CHAPTER II

WEEKLY REST PERIOD

ART 91. RIGHT TO A WEEKLY REST DAY

- Employees should be provided a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days.

- Employer shall schedule the weekly rest day of his employees subject to collective bargaining agreement. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. But when such preference will prejudice the operations of the undertaking and the employer cannot normally result to other remedial measures, the employer may so schedule the weekly rest day that meets the employee’s choice for at least two (2) days a month

ART 92. WHEN EMPLOYER MAY REQUIRE WORK ON A REST DAY

WHEN EMPLOYEE MAY BE REQUIRED TO RENDER WORK ON A REST DAY:

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1. In case of actual or impending emergencies caused by serious accident, fire, flood typhoon, earthquake epidemic or other disaster or calamity, to prevent loss of life or property or in cases of force majeure or imminent danger to public safety

2. urgent work to be performed on the machinery, equipment or installation to avoid serious loss which the employer would otherwise suffer

3. abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures

4. prevent serious loss of perishable goods 5. nature of work requires continuous operation

for seven days a week

6. work is necessary to avail of favorable weather or environmental conditions where performance or quality of work depends upon them

ART 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK

- this article does not prohibit a stipulation in the CBA for higher benefits

SPECIAL HOLIDAYS 1. All Saint’s Day -November 1 2. Last Day of the Year-December 31

3. And all other days declared by law or ordinances to be a special holiday or non-working day

NOTE: worked = regular wage plus 30% premium pay

not worked = none

ADDITIONAL COMPENSATION FOR WORK ON A REST DAY, SUNDAY OR HOLIDAY WORK:

1. Work on a scheduled rest day - 30% of regular wage

2. No regular workdays and rest days -30% of regular wage for work on Sundays & Holidays

3. Work on Special Holidays -30% of regular wage

4. Holiday Work falls on Scheduled Rest Day - 50% of regular wage

CHAPTER III

HOLIDAYS, SERVICE INCENTIVE

LEAVES AND SERVICE CHARGES

ART 94. RIGHT TO HOLIDAY PAY HOLIDAY PAY - A day’s pay given by law to

an employee even if he does not work on a regular holiday. It is limited to the ten (10) regular holidays listed by law.

- employee should not have been absent without pay on the working day preceding the regular holiday

Art. 94(b) refers to regular holidays, special holidays are taken care of under Art. 93.

PREMIUM PAY - Additional compensation for work performed on a scheduled rest day or holiday.

REGULAR HOLIDAYS: 1. New Year’s Day -January 1 2. Maundy Thursday -Movable date 3. Good Friday- Movable date 4. Araw ng Kagitingan -April 9 5. Labor Day -May 1

6. Independence Day -June 12

7. National Heroes Day`-Last Sunday of August

8. Bonifacio Day-November 30 9. Christmas Day-December 25 10. Rizal Day-December 30

Note: Compensable whether worked or unworked.

DOUBLE HOLIDAY PAY

1. 200% of the basic wage provided, he works on that day and was present or on leave with pay on the preceding workday. If on leave without pay, rate still applies if leave is authorized.

2. 400% if he worked – as per DOLE Memo if there are 2 regular holidays in one day eg. April 9 and Good Friday. Provided the employee worked on the day prior to the regular holiday or on leave with pay or on authorized absence.

3. If there are two succeeding holidays eg., Maundy Thursday and Good Friday, the employee must be present the day before the scheduled regular holiday to be entitled to compensation to both otherwise, he must work on the first holiday to be entitled to holiday pay on the second regular holiday.

REGULAR HOLIDAY

SPECIAL HOLIDAY - compensable even - not compensable if

(15)

if unworked subject to certain conditions unworked - limited to the 10 enumerated by the LC

- not exclusive since law may provide for other special holidays - rate is twice the

regular rate if worked

- rate is 130% if worked

ART 95. RIGHT TO SERVICE INCENTIVE LEAVE

SERVICE INCENTIVE LEAVE (SIL) - Five (5) days leave with pay for every employee who has rendered at least one (1) year of service.

BUT DOES NOT APPLY TO THOSE WHO ARE:

already enjoying the said benefits; or

enjoying vacation leave with pay for at least 5 days

those employed in establishments regularly employing less than 10 employees

those employed in establishments exempted from granting this benefit by the Secretary of Labor.

ONE (1) YEAR OF SERVICE.- service within 12 months, whether continuous or broken, reckoned from the date the employee started working including authorized absences and paid regular holidays unless the number of working day in the establishment as a matter of practice or policy, or provided in the employment contract is less than 12 mos.

- SIL is commutable i.e., convertible to cash- the cash equivalent is aimed primarily at encouraging workers to work continuously and with dedication to the company.

ART 96. SERVICE CHARGES

☛ TO BE DISTRIBUTED TWICE A MONTH AND AT THE RATE OF: 1. 85% for all covered employees to be equally

distributed among them

2. 15% for management (may answer for losses and breakages or distributed to management)

- If collection of service charges is abolished, the share of covered employees shall be

considered integrated in their wages on the basis of the average monthly share of each employee for the past 12 months immediately preceding the abolition.

TITLE II

WAGES

CHAPTER I

PRELIMINARY MATTERS

ART 97. DEFINITION

WAGE - 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 or 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 of board, lodging, or other facilities customarily furnished by the employer to the employee. FAIR DAY’S WAGE FOR A 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.

WAGE SALARY

- compensation for

manual labor - denotes higher degree of employment - Not subject to

execution

- subject to execution (Gaa vs. CA)

☛ FACILITIES – shall include all articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or services primarily for the benefit of the employer or necessary to the conduct of the employer’s business.

(16)

- Are items of

expense necessary for the laborer’s and his family’s existence and subsistence - Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings wages - part of the wage - independent of the

wage - deductible from the

wage - not wage deductible ✍ ART. 98. APPLICATION OF TITLE This Title shall not apply to the following:

1. household or domestic helpers 2. homeworkers engaged in needle-work 3. workers employed in any establishment

duly registered with the National Cottage Industry

4. Workers in any duly registered cooperatives

CHAPTER II

MINIMUM WAGE RATES

ART 100. PROHIBITION AGAINST ELIMINATION OR DIMUNITION OF BENEFITS

LEGAL REQ’TS. BEFORE FACILITIES CAN BE DEDUCTED FROM THE EMPLOYEES’ WAGES:

1. Proof that such facilities are customarily furnished by the trade ;

2. Voluntarily Accepted in writing by the employee

3. Charged at Fair & Reasonable Value

THE NON-DIMINUTION RULE -the benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten.

The rule is applicable if it is shown that the grant of the benefit is:

1. based on an express policy, or

2. has ripened into practice over a long period of time, and the practice is consistent and deliberate.

3. It is not due to an error in the construction /application of a doubtful or difficult question of law.

- But even in cases of error, it should be shown that the correction is being done soon after the discovery of the error.

☛ BONUS - A supplement or employment benefit given under certain conditions, such as success of the business or greater production or output. As a rule, it is an amount granted voluntarily to an employee for his industry and loyalty which contributed to the success and realization of profits of the employer’s business. Therefore, from a legal point of view, it is not a demandable and enforceable obligation. Unless, it was promised to be given without any conditions imposed for its payment, as such, it is deemed part of the wage.

☛ 13 MONTH PAY (OR “ITS EQUIVALENT”)TH

-additional income based on wage required by P.D. 851 which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year.

- may be given anytime but not later than Dec. 24

COVERAGE:

- All rank-and-file employees regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided, that they have worked for at least one (1) month during the calendar year.

FORMS:

1. Christmas bonus 2. midyear bonus

3. profit sharing payments; and

4. other cash bonuses amounting to not less than 1/12 of its basic salary.

- Difference of opinion on how to compute the 13th month pay does not justify a strike - It must always be in the form of legal tender

. Free rice, electricity cash and stock dividends, COLA not equivalent

(17)

CATEGORIES OF PIECE-RATE WORKERS:

1. those who are paid piece rates as prescribed in Piece Rate Orders by the DOLE

2. Those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE

☛ WORKERS PAID ON PIECE-RATE BASIS - shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. BENEFITS PAYABLE TO PIECE-RATE WORKERS:

1. Applicable statutory minimum daily rate; 2. Yearly service incentive leave of five days

with pay;

3. Night shift differential pay 4. Holiday pay

5. Meal and rest periods 6. OT pay (conditional) 7. Premium pay (conditional) 8. 13th month pay

9. other benefits granted by law, individual or collective bargaining agreement or company policy or practice.

CHAPTER III

PAYMENT OF WAGES

ART 102. FORMS OF PAYMENT EMPLOYER CANNOT PAY HIS WORKERS BY MEANS OF:

1. promissory notes 2. vouchers 3. coupons 4. tokens 5. tickets 6. chits 7. or any object. GENERAL RULE: - payment by legal tender EXCEPTIONS:

- checks or money orders may be paid if: 1. the same is customary on the date of

effectivity of the LC;

2. necessary because of special circumstances; or

3. as stipulated in the CBA

ART 103. TIME OF PAYMENT WHEN TO PAY:

- at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days

- force majeure or other

circumstances beyond the

employer’s control, payment must be made immediately after such occurrence have ceased.

ART.104. PLACE OF PAYMENT WHERE TO PAY:

- Shall be made at or near the place of undertaking,

☛ EXCEPTIONS:

1. When payment cannot be effected at or near the place of work by reason of deterioration of peace and security

2. When the employer provides for free transportation to the employees back and forth;

3. And under analogous circumstances

- payment of wages in bars, night or day clubs, massage clinics or similar establishments are prohibited except for the workers therein.

PAYMENT THRU BANKS: REQUISITES :

1. There must be written permission of the majority of the employees concerned in an establishment;

2. The establishment must have 25 or more employees; and

3. The bank must be located within one kilometer radius to the bank from the location of the establishment

- payment through the ATM is allowed

ART 105. DIRECT PAYMENT OF WAGES

(18)

- wages shall be paid directly to the workers to whom they are due.

EXCEPTIONS:

a. in case of force majeure/special circumstances, payment may be made through another person under written authority where the worker has died, the b. employer may pay the wages of the

deceased worker to the heirs of the latter, through the Secretary of Labor or his representative, without the necessity of intestate proceedings, after the heirs have executed an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all others

ART 106. CONTRACTOR OR SUBCONTRACTOR

LABOR ONLY CONTRACTING - where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such persons are performing activities which are directly related to the principal business of such employer.

☛ INDEPENDENT CONTRACTOR - one who exercises independent employment and contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result thereof.

- A mere statement in a contract with a company that laborers who are paid according to the amount and quality of work are independent contractors does not change their status as mere employees in contemplation of labor laws.

REQUISITES FOR A CONTRACTING OR SUBCONTRACTING TO BE :

1. where the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

2. the contractor or subcontractor has substantial capital or investment; and

3. the agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health

standards, free exercise of the right to self-organization, security of tenure and social and welfare benefits.

- Substantial capital need not be coupled with investment in tools or equipment. This is clear from the use of the conjunction “or”. JOB C O NT R A CT IN G LABOR ONLY CONTRACTING 1. No E- E relationship exist between

employer and the contractor’s employee except when the

contractor or subcontractor fails to pay the wages of his employees 1. Employer is treated as direct employer of the person recruited in all instances 2. liability is limited to unpaid wages and other labor standards violations

2. liable to all rights duties and liabilities under labor

standards laws including the right to self- organization

3. Permissible 3. Prohibited by law 4. Contractor has substantial capital or investment 4. Contractor has no substantial capital/ investment

WORKING CONDITIONS - Refers to the terms and circumstances affecting the employment of an employee, including policies, programs and regulations governing his employment status, work, and work relationships. They are, as a rule, determined by the employer.

ART. 110. WORKER PREFERENCE IN CASE OF BANKRUPTCY

- This Article did not sweep away the overriding preference accorded under the

(19)

scheme of the Civil Code to tax claims of the government.

- just a preference, must yield to special preferred credit, e.g. secured creditors - The formal declaration of insolvency or

bankruptcy or a judicial liquidation of the employer’s business is a condition sine qua non to the operation of the preference accorded to workers under Art. 110.

CHAPTER IV

PROHIBITIONS REGARDING WAGES

ART 112. NON-INTERFERENCE IN DISPOSAL OF WAGES

In relation to the Civil Code:

Art. 1705. The laborer’s wages shall be paid in legal currency.

Art. 1706. Withholding of the wages except for a debt due, shall not be made by the employer Art. 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done. Art. 1708. The laborer’s wages shall not be subject to execution or attachment except for debts incurred for food, shelter, clothing, and medical attendance.

Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.

PROHIBITIONS REGARDING WAGES: 1. Payment of wages with less frequency than

once (1) a month.

2. Limitations/Interference by the employer with the employees freedom to dispose of his wages.

3. Forcing, Compelling/Obliging employees to purchase merchandise , commodities or other properties from the employer or from any other person, or to make use of any store or service of such employer or any other person

4. Withholding of wages

5. Deduction of wages as consideration of a promise of employment or retention in employment

6. Refusal to pay/ Reduction of wages and benefits, discharge/ discrimination against any employee as retaliatory measures against any employee who has filed any complaint or instituted any proceedings against his employer

ART 113. WAGE DEDUCTION ALLOWABLE DEDUCTIONS: WITH EMPLOYEES CONSENT: 1. SSS Payments

2. MEDICARE

3. Contributions to PAG-IBIG Funds 4. value of meals and others

5. payments to third persons with employees consent

6. deduction of absences

W/OUT EMPLOYEES CONSENT:

1. Worker’s insurance acquired by the employer 2. Union Dues, where the right to check-off has been recognized by the employer

3. Cases where the employer is authorized by law or regulations issued by the Secretary of Labor

4. debts of the employee to the employer which have become due and demandable

ART 114. DEPOSITS FOR LOSS OR DAMAGE

- Deposits for Loss or Damage to tools, materials and equipment supplied by the employer shall not be made, EXCEPT when the trade, occupation or businesses of the employer recognizes, or considers the practice of making deductions or requiring deposits necessary or desirable.

REQUISITES FOR DEDUCTION FOR LOSS OR DAMAGE :

1. employee clearly shown responsible 2. opportunity to show cause to show why

deduction should not be made

3. deduction is fair and reasonable and shall not exceed the actual loss or damage 4. does not exceed 20% of the employees

wages in a week.

CHAPTER V

WAGE STUDIES, WAGE

AGREEMENTS AND WAGE

DETERMINATION

ART 122. CREATION OF THE REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARDS

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