Labor-law-review-online-exam.docx

COMPILED Q&A (c/o Atty. Panganiban; S.Y. ’18-’19 2nd sem) 1. Can a contract determine the existence of employer-employee relationship? Yes, an employer-employee relationship principally exists by virtue of a contract although the consequences of which is governed by law with regards to labor standards. There is only one instance when an employer-employee relationship exists by virtue of another source of obligation, which is by operation law, and that is when there exist a situation of labor-only contracting wherein the principal is regarded as the employer of the employee(s) hired by the labor-only contractor who purports to be the apparent employer.

2. Provide the significant difference between the coverage of RA 10022 and the Labor Code of the Philippines. The Migrant Workers and Overseas Filipinos Act of 1995, as amended (RA 10022) governs the employment/deployment of Overseas Filipino Workers or Filipino Migrant Workers, while the Labor Code of the Philippines governs the employment of individuals employed within the Philippines; R.A. 10022 provides the standard of protection and promotion of the welfare of overseas filipino workers or filipino migrant workers, including their families with them abroad, while P.D. 442, as amended, provides the conditions of employment (or labor standards) governing employment contracts (employer-employee relationship) within the Philippines.

3. State at least 5 Constitutional provisions related to Labor Law. (1) The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. (Art. II, Sec. 9, 1987 Constitution) (2) The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. (Art. II, Sec. 18, 1987 Constitution) (3) No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws (related to statutory due process mandated by the Labor Code in the dismissal of employees). (Art. III, Sec. 1, 1987 Constitution) (4) No law shall be passed abridging the 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. (Art. III, Sec. 4, 1987 Constitution) (5) 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 selforganization, collective bargaining and negotiations, and peaceful concerted

activities, including the right to strike in accordance with law. 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 on investments, and to expansion and growth. (Art. XIII, Sec. 3, 1987 Constitution).

4. Difference between Labor Standards, Labor Relations and Social Legislation. “Labor Standards” or Conditions of Employment is that part of the labor code which prescribes the minimum terms and conditions of employment required upon an employer to grant for its employees, thus it governs individual employment contracts per employee; second, “Labor Relations” is that part of labor code which deals with unionism, collective bargaining, grievance machinery, voluntary arbitration, strike, picketing and lockout, thus it governs the relationship of the employees, as a collective unit, with their employer; lastly, “Social Legislation” is that part of labor law that seeks to promote the common good, generally by protecting and assisting the weaker members of society, it comprises not only the working class but also the unemployed members of the society and the elderly, thus it is broader than labor laws.

5. Define and explain Social Justice. The Supreme Court defines Social Justice as "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of saluspopuliest suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number." (Calalang v. Williams, 1940)

6. Define Prerogative.”

and

explain

“Management

Prerogative

and

Contractual

“Management prerogatives” are granted to the employer to regulate every aspect of their business, generally without restraint in accordance with their own judgment. This privilege is inherent in the right of employers to control and manage their enterprise effectively from hiring, manner of work, to dismissal of workers. On the other hand, the term “Contractual prerogative”, as coined by Justice Quisumbing’s dissent in the case Tongko Vs. The Manufacturers Life Insurance Co., Inc., [GR 167622, November 7, 2008], is the contractor’s own or personal means and methods in accomplishing the work.

7. What are the limitations to the exercise of management prerogative? Provide five concrete illustrations of Management Prerogative. Management Prerogative is limited by: (1) law, (2) Collective bargaining agreement, (3) employment contract, (4) employer policy, and (5) employer practice. Examples: (1) The employer cannot opt not to pay overtime pay by off-setting undertime work; (2) The employer and the bargaining union may agree in a CBA for the compression of workweek; (3) The employer cannot suddenly suspend payment of traditionally provided employee benefits; (4) The employer-corporation may not automatically absorb its employees after a merger or consolidation with another corporation; (5) The employer may not terminate an erring employee without following contractual (statutory) due process.

8. What is the principle of co-determination, and how does it affect employees? The “principle of co-determination” refers to the right of workers to participate in policy and decision-making processes directly affecting their rights and benefits, without intruding into matters of management prerogatives. It affects the employees collectively by giving them a unified voice in the formulation of company policies made by the employer, thereby giving them an indirect governing power over their rights and benefits alongside with the employer.

9. What is the Doctrine of Imputed Knowledge? Can an agent be held liable under the Theory of Imputed Knowledge for acts of the Principal? Any exceptions? The “Doctrine of Imputed Knowledge” refers to that principle stating that “the knowledge of the agent is deemed as knowledge of the principal, but not the other way around”. It is a rule utilized in ascribing principal-agent relationship and its consequent responsibilities and solidary liability between the principal and the agent with respect to the latter’s acts or omissions. Generally, an agent cannot be liable for the acts of the principal more so when the circumstance is outside the agent’s functions; on a hindsight, the only exception from “nonreverse imputation” would be the existence of knowledge and consent by an agent on a particular act or ommission of the principal which is direcly related with the agent’s functions.

10. Is filing a case for illegal recruitment a bar to the filing, subsequently or simultaneously, an Estafa case against the same person? No, a person can file simultaneously or successively an estafa case and illegal recruitment case, because the crime of estafa is punishable by the Revised Penal Code where criminal intent is material being mala in se while illegal recruitment is punishable under R.A. 10022, in relations with the Labor Code where the criminal intent is malum prohibitum.

11. What is the distinction between a “direct hire” and a “name hire.” What are the exceptions, if any, on the ban on direct hiring? Name-hiring means the securement by the worker of an overseas employment opportunity with an employer without the assistance or participation of any agency. 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. Direct-hiring is illegal if the employement was not submitted to and processed by the POEA. However, employment within the following entities are exempted from the ban on direct hiring:   

International organizations; Members of the diplomatic corps; Heads of State and government officials with at least Deputy Minister rank, but those who bear a lesser rank may be allowed IF endorsed by Philippine Overseas Labor Office (POLO) or Head of Mission in case there’s no POLO;

Also, there are exempted overseas workers which are as follows: 



Professionals and skilled workers with duly executed authenticated/verified contracts, with terms above the prescribed guidelines set by POEA. The number of workers hired must not exceed five workers. Those who were hired (except domestic workers) by a relative or family member who is already a permanent resident in the host country.

12. Distinguish, Illegal recruitment from large-scale illegal recruitment from Syndicated illegal recruitment. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized heavier. Simple illegal recruitment is not an offense involving economic sabotage penalized lighter. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under this first paragraph hereof; On the other hand, illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

13. Provide concrete illustrations to all the prohibited activities under R.A. 10022. Under the Migrant Workers’ Act, it is prohibited for a person: • To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance, e.g. An agency requires a higher amount of fee from an applicant above the schedule of fees by the DOLE. • To furnish or publish any false notice or information or document in relation to recruitment or employment, e.g. An agency publishes a job hiring in Canada for janitorial services wherein in truth there is none. • 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 nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA, e.g. An agency falsifies or misrepresent any information in its application with the POEA for license.

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To include 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.g. A person cajoles a person to leave his work as kasambay promising of a better emplotment. 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, e.g. an agency influences another agency not to accept a certain worker. 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, e.g. an agency recruits women for prostitution to be placed in another country as job. 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, e.g. An agency fails to submit reportorial requirements with the DOLE. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment 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 Department of Labor and Employment, e.g. an agency changes the terms and conditions of the contract of an employee without him knowing causing prejudice to his person. 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, e.g. an agency engages in travel agency.

• 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; • To actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; • Not 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. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and • To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. • To 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, postdated checks in relation to the said loan;

• To 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; • To 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; • To 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; • To 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 fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; • To suspends recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications.

14. Distinguish Learners from Apprentices. Are they entitled to labor standard benefits? Explain with legal basis. Both learnership and apprenticeship involve practical legal training. Learnership is governed by a learnership agreement; while apprenticeship is governed by an apprenticeship agreement. Learnership involves occupations consisting of semi-skilled and other industrial occupations which are non apprenticeable; while apprenticeship occupations or any trade, form of employment or occupation approved for apprenticeship by the DOLE Secretary. Learnership may or may not be supplemented by related theoretical instructions; while apprenticeship should always be supplemented by related theoretical instructions. Unlike in apprenticeship, it is required in learnership that it be implemented based on the TESDA-approved competency-based exam.

15. Elucidate on legal significance of the age requirement provided for the Labor Code, the IRR and Article 234 of Executive Order No. 209, which shall be applied? The age requirement in the Family Code shall be applied since it is of later date than the Labor Code. Such is significant to know the age of person eligible to work.

16. Can learners and apprentices become regular employee? Explain thoroughly. Yes, learners and apprentices can become regular employees as long as their employer permits them to continue their work after the completion of the learnership or apprenticeship. If the learnership or apprenticeship is finished already, the employer may opt to hire the learner or apprentice to be a regular employee if the employer sees the employee as fit, suitable and qualified to continue his work as such. 17. Who are PWDs? What is the wage rate of PWDs? What is the wage rate of a PWD if hired as apprentice or learner? Are they entitled to labor standard benefits? Explain with legal basis. (a) Persons with Disability (PWD) are those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. Identification Cards shall be issued to any PWD with permanent disabilities due to any one or more of the following conditions: psychosocial, chronic illness, learning, mental, visual, orthopedic, speech and hearing conditions. This includes persons suffering from disabling diseases resulting to the person’s limitations to do day to day activities as normally as possible such as but not limited to those undergoing dialysis, heart disorders, severe cancer cases and such other similar cases resulting to temporary or permanent disability. (Magna Carta for Persons with Disability) (b) The wage rate of PWDs is the same as that received by an ordinary employee if employed by any establishment. A PWD is entitled to the same statutory minimum wage rate as those other employees covered by the wage system. (c) If a PWD is hired as a learner, his wage rate shall begin at not less than 75% of the applicable minimum wage which is the same as that of other learners as provided by law. (Art. 75, Labor Code) (d) PWDs are entitled to the labor standard benefits provided they qualify as an employee and he is not a managerial employee, field personnel, kasambahay, person in the personal service of another, government employee, and a member of the family of the employer and dependent upon him for support. (Art. 82, Labor Code) 18. Are PWDs eligible for apprenticeship and learnership? Why or why not? Yes, a PWD is eligible for apprenticeship and learnership. There is no prohibition under the Labor Code for a PWD to undergo apprenticeship orlearnership. As the legal maxim says, “When the law does not prohibit, it allows.” However, the disability of the PWD must not be one that renders him incapacitated to perform the main work of such apprenticeship or learnership.

19. State and explain all the conventional and non-conventional tests to determine the existence of an employment relationship. There are three ways in determining employer-employee relationship: First is through the Four-Fold test, wherein a person called the employer must have: 1. The power of control over the means and methods of an employee in his work as well as the results thereof; 2.The power to dismiss him; 3.Obligation to pay wages or salaries to him; and , 4.There was a selection and engagement of the employee. In this conventional test, the most important consideration is the power of control. It must be shown that the employer has at least the right to control the means and methods of an employee in performing his work as well as the result of such work to prove that there is the existence of an employeremployee relationship. Second is the Economic Dependency Test wherein one is considered an employee of an employer if the former is economically reliant over the latter as to his subsistence, such as his means of living is hugely dependent on the employer. Third is the Two-Tiered Test, wherein it is the same as Economic Dependency Test but power of control by the employer is also determined. 20. What are the instances recognized under the Labor Code of acts of the employer that is considered discriminatory against woman? (1) Payment of a lesser compensation, including wage, salary or other form remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value. (2) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. 21. What is the Minimum Wage prescribed by law for persons with disability? Any exceptions? The minimum wage rate provided by the statutory minimum wage rate is the applicable wage rate to persons with disability. The law provides that persons with disabilities are entitled to equal opportunity for employment and shall be subject to the same terms and conditions, including wages, as an able-bodied person. Also, it is for the above same reason that, the rule on wage rate for apprentices and learners also applies; therefore, as an exception, a person with a disability may be paid lower than the minimum wage rate but not lower than 75% thereof if he is hired as an apprentice or learner.

22.

Distinguish FACILITIES from SUPPLEMENTS. Provide concrete illustrations. Which may be included in the salary of an employee?

A benefit given to employees constituting extra remuneration over and above their basic salary or wage may be a facility or a supplement. The main criterion in distinguishing one from the other depends on the benefit’s purpose with regards to the circumstances involved: if it is necessary for the conduct of the employer’s business, like extra remuneration provided by the employer to the employees when they reach a selling quota for the purpose of increasing the business sales; but, if it is necessary for the benefit of the employee, or his dependents, like monthly provisions of good quality rice affording employees with a discount, then it is one of facilities. Also, another distinguishing factor is the benefit’s rule on its deductibility from the employees’ salary or wage: facilities are deductible from salary or wage while supplements are not. In sum, supplements are included above and over the actually received salary or wage while facilities are deducted from it. 23. When are seasonal employees considered as regular employees? Seasonal employees are considered regular employees if they have been performing work that are seasonal in nature, and are employed or re-hired for more than one season. This is also true even if there is no written contract of employment between the employee and the employer, provided that the preceding circumstances are present. 24. What is compressed work week “CWW”? Is it a valid undertaking? Explain with legal basis. Based DOLE Department Advisory No. 02 Series of 2004, “Compressed Workweek” refers to a weekly work schedule wherein the normal workweek is reduced to less than 6 workdays while maintaining the normal hours of work, which is 48 hours per week, by increasing the normal hours of work for more than 8 hours but not exceeding 12 hours per day, but without payment of corresponding overtime premium.

Compression of workweek is a valid undertaking pursuant for being integrated into public policy as determined by the above-stated Department Advisory provided its undertaking is in accordance to the following specific guidelines: 1.) That it resulted from an express and voluntary agreement of the majority of employees or their authorized representatives; 2.) That a certification from an accredited health and safety officer has been secured by the employer for industries regulated by the Occupational Safety and Health Standards; and, 3.) That the employer shall formally notify the DOLE of the adoption thereof.

25. Distinguish labor-only contracting from job contracting. First of all, labor-only contracting is absolutely prohibited while job contracting may be legitimized. The following are their distinctions: 1.) In labor-only contracting, the law creates an employee-employer relationship between the contractual employees and the principal, while in a legitimate job contracting, there is no employee-employer relationship between the contractual employees and the principal; 2.) In labor-only contracting, the principal is considered a direct employer, while in a legitimate job contracting, the principal is only an indirect employer; 3.) In labor-only contracting, the principal is solidarily liable with the labor-only contractor to the full extent of the law and employment contract, while in a legitimate job contracting, the principal is only solidarily liable with the job contractor in the payment of wages. 26. How is hours worked measured? When is waiting time compensable? The labor code provides that hours worked are measured based on all the time during which an employee is required to be on duty, to be at the employer’s premises, or to be at a prescribed workplace; and, on all the time during which an employee is suffered or permitted to work during and/or beyond the designated work schedule. Waiting time spent by an employee shall be compensable if he is required by the employer to wait or when the act of waiting is necessary in the performance of his work. In both instances, waiting time shall be considered working time. In any case, the test to determine whether waiting time is compensable or not lies whether or not “waiting time is spent primarily for the benefit of the employer and its business”. Compensability of waiting time also considers the agreement between the employer and the employee and the degree to which an employee is free to engage in personal activities during the waiting period. In short an employee is only compensable for idle time when "the employee is unable to use the time effectively for his own purposes."

27. Who are the employees covered by the labor standards provisions of the labor code? The labor code provides that only rank-and-file employees employed in the private sector are covered by the law on labor standards. However, since the labor code, as amended, provides that all rights and benefits granted by it apply to all workers whether agricultural or not, the laws on labor standards shall likewise cover employees whose nature of work is agricultural.

28. Who are exempted from the coverage of labor standards provisions? Explain the reason why they are not covered. The following employees are not covered by the laws on labor standards as provided by the labor code:

1.) Government Employees, they are not covered by the laws on labor standards because they are covered by the Civil Service Act, as amended, and other laws related to civil service like the Code of Conduct and Ethical Standards for Public Officials and Employees; 2.) Managerial employees and other managerial staff, they are not covered by the laws on labor standards because they are hired based on the employer’s trust and confidence akin to a contract of agency, and not of employment, which is already covered by the Civil Code; 3.) Field personnel, they are not covered by the laws on labor standards for the simple reason that the nature of their actual work cannot be determined with reasonable certainty; 4.) Family members dependent on the employer for support, they are not covered by the laws on labor standards because they have a reasonable expectancy to have managerial rights on the employer’s business although inchoate; 5.) Domestic Helpers / Domestic Workers/ Household Helpers / Kasambahay, they are not covered by the laws on labor standards because they are covered on a different title under the labor code, and now they are covered by the Kasambahay Law; 6.) Employees for Personal Service of Another, they are not covered by the laws on labor standards because, similar to a managerial employee, they occupy an employment position akin to a contract of agency which is already covered by the Civil Code; 7.) Workers paid by results, they are not covered by the laws on labor standards because they are covered by the regulations determined by the Secretary of Labor and Employment. 8.) Overseas Filipino Workers, they are not covered by the laws on labor standards because they are covered by the Migrant Workers and Overseas Filipinos Act of 1995, as amended by R.A. 10022, and by their respective POEA approved Overseas Employment Contract which is governed by the employment standards provided by the appropriate POEA Rules and Regulations Governing Recruitment and Employment of Seafarers/Landbased Overseas Filipino Workers. Moreover, persons employed in retail and service establishments regularly employing less than ten (10) workers are not covered by the laws on labor standards with respect to payment of holiday pay and SILP. Lastly, employees of distressed establishments, new business enterprises, retail/service establishments regularly employing not more than 10 employees, and establishments adversely affected by natural calamities, as determined by the Regional Board of the National Wages and Productivity Commission, are not covered by the laws on labor standards with respect to payment of the minimum wage rate. Additionally, employees of a Barangay Micro Business Enterprise are also outside the coverage of payment of statutory minimum wage as provided by the Barangay Micro Business Enterprises Act.

29. Provide concrete illustration on Exemptions from prohibitions on deductions from wages. Under the labor code, the following are examples of recognized deduction exempted from prohibitions regarding wages: 1.) Deductions representing payment of premiums on an insurance contract procured by the employer for the benefit of the worker with the latter’s consent; 2.) Deductions representing union dues upon the employer’s recognition and authorization by the worker concerned; 3.) Deductions made in other instances authorized by law or regulations issued by the Secretary of Labor and Employment. It includes deductions made within the written authorization of employees and as agreed upon by the employer for payment to a third person in accordance with Labor Advisory No. 11 series of 2014; 4.) Deductions on cash deposits made by the employee for reimbursement of losses or damages suffered by the employer business engagement recognized and determined by the Secretary of Labor and Employment, such as private security agencies as provided by Labor Advisory No. 11 series of 2014, when the employee concerned is clearly responsible for the losses or damages caused. 30.) What is meant by the doctrine of subordinate legislation? According to jurisprudence, the doctrine of subordinate legislation is an exemption to the rule on non-delegation of police power that allows the further delegation of limited legislative power by the national legislature upon administrative agencies exercised by the latter through issuance of rules and regulations in order to carry out, by “filling-in” details to, the general provisions and policies of a particular statute, in cognizance of the administrative agency’s specialization in such particular field that the statute seeks to affect, thereby giving the said issuances the force and effect of law. An example of which is the issuance of implementing rules and regulations by the Department of Labor and Employment to carry out the policies of the Labor Code. The doctrine of subordinate legislation properly refers to that principle stating that “where a rule or regulation has a provision not expressly stated or contained in a statute being implemented, that provision does not necessarily contradict the statute provided that the said regulation is germane to the policies provided by the law to be executed, and is not contradictory to but in conformity with the standards, guidelines, and delimitations prescribed by the law”.

31.) Differentiate “waiting to be engaged” and “engaged to wait”. Which one is compensable? The distinction between “waiting to be engaged” and being “engaged to wait” depends on the factual circumstances of employment. Basically, “waiting to be engaged” connotes a waiting time spent by an employee effectively and gainfully for personal purposes during which he is neither required to remain on-call within the proximity of the designated working premises nor required to leave word at his home or with company officials where he may be reached; on the other hand, being “engaged to wait” connotes an opposite situation wherein an employee spends time in waiting as required by the employer or if the time spent in waiting is an integral part of his work during which he must remain on-call within the proximity of the designated working premises or is required to leave word at his home or with company officials where he may be reached. Being “engaged to work” is compensable; the Rules on Implementing the Labor Code provide that waiting time shall be considered working time if the employee is engaged by the employer to wait. The same rules provide that all time during which an employee is suffered to work shall be compensable. 32.) What is the difference between license and authority? How does it affect the recruiter? A “License” is a document issued by the DOLE Secretary in authorization of persons seeking to operate a private employment agency while an “Authority” is a document issued by the DOLE Secretary in authorization of persons representing a licensed private employment agency for the conduct of recruitment and placement activities. In short, a license is given to proprietors of private employment agencies while an authority is given to their agents. Both license and authority affects the liability of recruiters for illegal recruitment. A non-licensed or non-holder of authority is liable for illegal recruitment for performing any acts of recruitment whether for profit or not. On the other hand, a licensee or an authorized recruiter shall only be liable for specific fraudulent acts constitutive of illegal recruitment.

33.) Explain the difference between REGULAR HOLIDAY and SPECIAL HOLIDAYS? Provide all the recognized regular holidays and NATIONAL SPECIAL HOLIDAYS. The difference between a regular and a special holiday lies on the guarantee of payment of basic salary or wage on such given day. The Rules on Implementing the Labor Code guarantees payment of basic salary or wage during regular holidays whether the employee actually works or not on such days; on the other hand, there is no guaranty of such payment during special holidays (special days or special nonworking days) if the employee does not actually work on such days under the principle of “no work, no pay”.

There are a total of 11 regular holidays, plus a regional holiday, and 2 special days including the usual 8 special non-working days in the Philippines. The Rules on Implementing the Labor Code and the Administrative Code provides that the term regular holiday exclusively refer to the following: 1.) The New Year’s Day (January 1, 2019); 2.) Maundy Thursday; 3.) Good Friday; 4.) The 9th of April (Araw ng Kagitingan); 5.) The 1st day of May (Labor Day); 6.) The 12th of June (Independence Day); 7.) The last Monday of August, as amended by R.A. 9492 (National Heroes’ Day, which was originally celebrated on a Sunday); 8.) The 30th of November (Bonifacio Day); 9.) The 25th of December (Christmas Day); 10.) The 30th of December (Rizal Day) Additionally, R.A. 9177 declares an additional regular holiday amending the Administrative Code namely, 11.) The 1st Day of the 10th Month of the Islamic Calendar or Shawwal (Eidul Fitr). On a side note, the 10th day of the 12th Month of the Islamic Calendar or Zhul Hissa (Eidul Adha) is not a regular but a regional holiday in the ARMM which nonetheless has the effect of a regular holiday upon the proclamation of the Office of the President. The day of celebration of both holidays shall be declared by the Office of the President upon advisory by the Office of Muslim Affairs. The National Special Holidays (Nationwide special days) includes: 1.) The 1st Day of November (All Saints Day); 2.) The last day of December (Last Day of the Year). On a side note, special non-working days, which have the same connotation as a nationwide special day, may be declared by the Office of the President through Proclamations. The usual Special Non-Working Days are the following: 1.) The Chinese New Year; 2.) The EDSA Revolution Anniversary (People Power Revolution); 3.) Black Saturday; 4.) Ninoy Aquino Day; 5.) All Soul’s Day; 6.) The Feast of the Immaculate Conception of Mary; 7.) The All Souls Day; and, 8.) The Christmas Eve.

34.) Differentiate “waiting to be engaged” and “engaged to wait”. Which one is compensable? The distinction between “waiting to be engaged” and being “engaged to wait” depends on the factual circumstances of employment. Basically, “waiting to be engaged” connotes a waiting time spent by an employee effectively and gainfully for personal purposes during which he is neither required to remain on-call within the proximity of the designated working premises nor required to leave word at his home or with company officials where he may be reached; on the other hand, being “engaged to wait” connotes an opposite situation wherein an employee spends time in waiting as required by the employer or if the time spent in waiting is an integral part of his work during which he must remain on-call within the proximity of the designated working premises or is required to leave word at his home or with company officials where he may be reached.

Being “engaged to work” is compensable; the Rules on Implementing the Labor Code provide that waiting time shall be considered working time if the employee is engaged by the employer to wait. The same rules provide that all time during which an employee is suffered to work shall be compensable. 35.) Is meal break compensable? When is waiting time compensable? Explain with legal basis. No, meal breaks are not compensable. The Labor Code provides that it shall be the duty of every employer to give his employees not less than 60 minutes “timeoff” for their regular meals. Meal breaks are not considered hours worked, hence not compensable because during this period is one of those times in which the employee is free to do anything he wants except to work. However, if he is required to work while eating, the time spent shall be considered hours worked. The rules on waiting time apply on the treatment of meal breaks. The Rules on Implementing the Labor Code provides that waiting time spent by an employee shall be compensable if he is required by the employer to wait or when the act of waiting is necessary in the performance of his work. In both instances, waiting time shall be considered working time. In any case, the test to determine whether waiting time is compensable or not lies whether or not “waiting time is spent primarily for the benefit of the employer and its business”. Compensability of waiting time also considers the agreement between the employer and the employee and the degree to which an employee is free to engage in personal activities during the waiting period. In short an employee is only compensable for idle time when "the employee is unable to use the time effectively for his own purposes." 36.) When is attendance at lectures, meetings, training programs and other similar activities counted as working time? The Rules on Implementing the Labor Code provides that lectures, meetings, training programs and other similar activities are not counted as working time if the attendance in which is voluntary and outside the regular working hours, and if the employee does not perform any productive work during such attendance. If the said conditions do not concur, the period of attendance thereon counts as working time. 37.) State the Policy of the State on Labor. The Labor Code provides that it is the policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. 38.) Who is the father of the labor code? The late Senator Blas Ople initiated the plans in codifying all labor and social regulations in the Philippines thereby creating the Labor Code.

39.) What is the current regular wage for the NCR and all other regions? As provided by current Wage Order of the National Wages and Productivity Commission, here is the current regular wage for the entire region: REGION Minimum Wage Rate (in Philippine Peso) NCR 500.00 - 537.00 CAR 300.00 - 320.00 REGION I 256.00 - 310.00 REGION II 320.00 - 360.00 REGION III 284.00 - 400.00 REGION IV-A 303.00 - 400.00 REGION IV-B 294.00 - 320.00 REGION V 295.00 - 305.00 REGION VI 295.00 - 365.00 REGION VII 313.00 - 386.00 REGION VIII 275.00 - 305.00 REGION IX 303.00 - 316.00 REGION X 331.00 - 365.00 REGION XI 381.00 - 396.00 REGION XII 290.00 - 311.00 REGION XIII 305.00 ARMM 270.00 - 280.00 40.) What is WAGE? Explain Wage DISTORTION, its legal ramification and remedies. The Rules on Implementing the Labor Code defines Wage as the remunerations or earnings paid by an employer to a worker for services rendered on normal working days and hours. It excludes other monetary benefits provided by law or contract. The same rules define Wage Distortion as a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage rates between and among employee groups in a particular establishment which obliterates the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. Basically, wage distortion legally disrespects the existing classification or hierarchy of positions and rankings of employees at various levels. However, any issue involving wage distortion shall not be a ground for a strike/lockout; hence, a wage distortion issue is not within the nature of a bargaining deadlock and unfair labor practice. Republic Act No. 6727, or the Wage Rationalization Act, provides that issues on wage distortions borne out of a law, or a wage order whether issued by National Wages and Productivity Commission or by any Board, shall be settled by and between the employer and the employees, or their union representatives if any, voluntarily or through the grievance procedure provided by their collective bargaining agreement. If it remains unresolved, it shall be decided through voluntary arbitration with the National Conciliation and Mediation Board. If still remained unresolved, it shall be referred for compulsory arbitration to the Labor Arbiter within the appropriate branch of the National Labor Relations Commission.