Labor1 Mental Jugger

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. I. Introduction Labor Law_ It is the law governing the rights and duties of ER and EE [a] with respect to the terms and conditions of employment, and [b] with respect to labor disputes arising from collective bargaining respecting such terms and conditions. 3 Branches 3 branches: 1. Labor Standards 2. Labor Relations 3. Welfare Legislation Labor Standards

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Labor standards provide the working conditions of employees, including entitlement to overtime pay and premium pay for working on rest days. Penaranda v Baganga Plywood Corp., 489 SCRA 94 (2006)

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Labor standards refers to 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. Batong Buhay Goldmines Inc v dela Serna, 312 SCRA 22 (1999)

Basis for Enactment of Labor Law 1. The Constitution Art.II.5(1987 Consti): The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Art. II.18 (1987 Consti): The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. 2. Police Power: The [SSS Law] implements the general welfare mandate of the Constitution and constitutes a legitimate exercise of the police power of the State. CMS Estate Inc v Social Security System, 132 SCRA 106 (1984) Sources of Law A. Labor Code, IRR B. Contract -The MOA, being a contract freely entered into by the parties, now constitutes as the law between them, and the interpretation of its contents purely involves an evaluation of the law as applied to the facts herein. Kasapian ng Malayang Manggagawa sa Coca-Cola v. CA C. CBA -The CBA is the norm of conduct between the parties and compliance therewith is mandated by the express policy of the law. DOLE Phils. v. Pawis ng Makabayang Obrero, 395 SCRA 112 (2003) D. Past Practices (company practices) – Requisites to be a source of rights and obligations 1. freely, voluntarily and continuously given within a considerable length of time Davao Fruits Corp v Associated Labor Union, 225 SCRA 562 (1993) 2. not just a single instance (not granted only once) Samahang Manggagawa etc. v. NLRC, 295 SCRA 171 (1998) 3. should have been done over a long period of time and must be shown to have been consistent and deliberate (American Wire and Cable Daily Rated Employees Union v. American Wire and Cable Co, Inc., 457 SCRA 684 (2005) 4. not be by reason of a strict legal or contractual obligation, but by reason of an act of liberality on the part of the employer Pag-asa Steel Works, Inc. v. CA, 486 SCRA 475 (2006)

E. Company Policies -generally binding and valid on the parties and must be complied with until finally revised/amended unilaterally or preferably through negotiation by competent authority (unless shown to be grossly oppressive or contrary to law) China Banking Corporation v. Borromeo, 440 SCRA 622 (2004) WON Labor Case Lapanday Agricultural Development Corporation v. CA, 324 SCRA 77 (2001) [a] presence of ER-EE relationship [b] there’s a violation of the Labor Code (LC). …Other than these, it is not a labor case. LC is the regulatory law; there must be strict interpretation. Management Function/ Management Prerogative - It is the employer’s prerogative to prescribe reasonable rules and regulations necessary or proper for the conduct of its business or concern to provide certain disciplinary measures to implement said rules and to assure that the same be complied with. At the same time, it is one of the fundamental duties of the employee to yield obedience to all reasonable rules, orders, and instructions of the employer, and willful or intentional disobedience thereof, as a general rule, justifies rescission of the contract of service and the preemptory dismissal of the employee. Gustilo v. Wyeth Philippines Inc., 440 SCRA 67 (2004) -The Court has always respected a company’s exercise of its prerogative to devise means to improve its operations. Thus, it has held that management is free to regulate, according to its own discretion and judgment, all aspects of employment, including hiring, work assignments, supervision and transfer of employees, working methods, time, place and manner of work Philcor Employees Union v. Phil.Global Communications, 495 SCRA 214 (2006) Limitations to Management Prerogative

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Law, CBA, fair play and justice DOLE Philippines, Inc. v. Pawis, 395 SCRA 112 (2003)

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Even as the law is solicitous of the welfare of employees, it must also protect the rights of an employer to exercise what are clearly management prerogatives. As long as the company’s exercise of those rights and prerogatives is in good faith to advance its interest and not for the purpose of defeating or circumventing the rights of employees under the laws or valid agreements, such exercise will be upheld. Valiao v. CA, 435 SCRA 543 (2004)

Compromise and Waiver Periquet v NLRC, 186 SCRA 724 (1990) 1. The law frowns upon waivers and compromise as a general principal because it is subject to abuse (Law recognizes that the situation is not of even or equal terms bet. ER and EE. Principle is grounded on fair play) 2. But not all C & W are void or contrary to law (Labor law not meant to oppress ERs. Just as it protects EEs, it also protects ERs. There’s a shared responsibility: EEs’ right to the fruits of their labor, and Er’s rights to the return of their investment) 3. There is a test to determine the validity of C & W: [a] Voluntarily entered into [b] Proximate equality, no moral ascendancy over the other [c] Amount is reasonable and not unconscionable II. Labor and Constitution Labor Sector -characterized as the primary social economic force [ArtIi.18, 1987 Constitution)

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. Protection of Labor_ 7 basic rights of labor under ArtXIII.3…right to 1. organize 2. conduct collective bargaining or negotiation with management 3. engage in peaceful concerted activities including strike in accordance with law 4. enjoy security of tenure 5. work under humane conditions 6. receive a living wage 7. participate in policy and decision-making processes affecting their rights and benefits as may be provided by law

-State still exercises control/power to interfere where the parties are not equal in standing Leyte Land Transportation Co v. Leyte Farmers and Workers Union, 80 Phil 842 (1948) - The prohibition on impairment of obligations by Statute is not unqualified. It prohibits only unreasonable impairment. In spite of the constitutional prohibition, the State continues to possess authority to safeguard the vital interests of the people. Xxx This has special application to contract regulating relations between capital and labor which are not merely contractual, and said labor contracts, for being impressed with public interest, must yield to the common good Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 (1974)

Social Justice [ArtXIII.1) -humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objective secular conception may at least be approximated Calalang v. Williams, 70 Phil 726 (1940) -Limitation: not intended to countenance wrongdoing simply because it is committed by the underprivileged. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege PLDT v. NLRC, 164 SCRA 671 (1988)

Welfare State -The welfare state concept is not alien to the philosophy our Constitution. It is implicit in quite a few of its provisions. There is the clause on the promotion of social justice to ensure the wellbeing and economic security of all the people, as well as the pledge of protection to labor with the specific authority to regulate the relations between landowners and tenants and between labor and capital. Alalayan v. NPC, 24 SCRA 172 (1968)

Management and the Constitution GR: Consti protect and promote welfare of EE X: when the ER is right (EE wrong). -Law, in protecting rights of labor, authorized neither oppression nor self-destruction of an employer company which itself is possessed of rights that must be entitled to recognition and respect Dayan v BPI, 369 SCRA 712 (2001) -Constitutional policy for full protection of labor is not a sword to oppress employers. Agabon v. NLRC, 442 SCRA 573 (2004) Labor as Property -A worker’s employment is property in the constitutional sense. He cannot be deprived of his work without due process. Asuncion v. NLRC, 362 SCRA 56 (2001) Due Process Requirements Ang Tibay v. CIR, 59 Phil 635 (1940): Procedural Due Process Requirements 1. Right to a hearing. Includes the right of a part to present his own case and submit evidence in support thereof. 2. The tribunal must consider the evidence presented. 3. Decision must be supported by evidence. 4. Evidence must be substantial; i.e. more than a mere scintilla, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise. 5. Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected. Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. 6. Independent consideration of judge. Must not simply accept the views of a subordinate in arriving at a decision. 7. Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered. + 8. a tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction Air Manila Inc. v. Balatbat 9. specially for termination cases: twin notice rule Agabon v. NLRC, 442 SCRA 573 (2004) Liberty of Contract and State Interference

III. Labor and the Civil Code Labor Contracts Art 1700: Relations between capital and labor are not merely contractual; impressed with public interest that labor contracts must yield to the common good EE-ER Standard of Conduct Art 1701: a) Not act oppressively against the other, b) nor impair the interest or convenience of the public mutual obligation -The ER’s obligation to give his EE’s just compensation and treatment carries with it the corollary right to expect from the EE adequate work, diligence and good conduct Firestone Tire and Rubber, Co v. Lariosa, 148 SCRA 187 (1987) EE obedience and Compliance of ER Orders -Any EE who is entrusted with responsibility by his employer should perform the task assigned to him with care and dedication. PCIB v Jacinto, 196 SCRA 687 (1991) IV. Labor and International Covenants 1. Universal Declaration of Human Rights 2. International Covenant on Economic, Social and Cultural Rights 3. Conventions and Recommendations of the International Labor Organization *Generally, these conventions recognize the rights already enumerated in our Constitution, such as: (a) Right to work, free choice of employment (b) Equal pay for equal work (prevent discrimination): Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. International School Alliance of Educators v. Quisumbing, 333 SCRA 13 (2000) (c) Just, favorable renumeration (d) right to self-organization Labor Code of the Philippines Applicability of Labor Code – Art.6 GR: Applies alike to ALL workers, whether agricultural or nonagricultural -EE-ER Important: It is jurisdictional for provisions of LC on post-employment to apply Uy v. Bueno, 484 SCRA 628 (2006) X: as may otherwise be provided herein

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. *Special rules* GOCCs Cabrera v. NLRC (1991): Important how created -if with original charter: Civil Service Law apply -if incorporated under the Corporation Code: LC applies *but in terms of wages: LC applies to all International Organizations: -GR: LC not applicable. The grant of immunity from local jurisdiction to the IO is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the DOLE in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of the member State of the organization, and to ensure the unhampered performance of their functions Ebro III v. NLRC -X: If there’s abuse or any injustice created due to this exemption from suit, the remedy of EE is to ask Phils. to withdraw the grant of immunity from suit. Then the legal processes and provisions of law in the Phils will apply. School Teachers Public School Teachers: Civil Service Law Private School Teachers: on issue of security of tenure (permanent status determination), the Manual for Private School issued by by the DECS applies and not LC. Labor Code however, is suppletory. Chiang Kai Shek College v. CA, 437 SCRA 171 (2004) Religious Corporations -if ecclestiastical affairs: LC cannot apply -if not ecclesiastical affairs: LC can apply *Ecclesiastical affairs: It involves the relationship between the church and its members and relate to the matters of faith, religious doctrines, worship and governance of the congregation Austria v. NLRC, 312 SCRA 410 (1999))

The sympathy of the Court is on the side of the laboring classes, not only because the Constitution imposes sympathy but because of the one-sided relation between labor and capital. The Court must take care, however, that in the contest between labor and capital, the results achieved are fair and in conformity with the rules. Duncan Association v. Glaxo Welcome, 438 SCRA 343 (2004) VI. Work Relationship *note that the definition of EE-ER differ depending on what part of the labor code you’re looking at Wages (Art 97)

ER’s Compensati on and State Insurance Fund (Art167)

ER -includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations. any person, natural or juridical, employing the services of the employee.

Rule Making Power – Art. 5 -DOLE as lead agency in enforing laws, possesses rule-making in the enforcement of the LC -A rule or regulation that exceeds the DOLE’s rule-making authority is void Law Interpretation – Art.4 1. If there’s NO doubt, and the language o the law is clear and unambiguous, there’s no room for interpretation 2. If there’s DOUBT, then resolve in favor of labor (liberal construction). There’s doubt when the law is susceptible to 2 or more interpretation, both or all of which are correct. Rationale: to give life and meaning to the compassion and liberal spirit of the law, and to extend its applicability to a greater number of EEs who can avail of the benefits under the law. Abella v. NLRC, 152 SCRA 140 (1987) Equity and Moral Consideration -Equity has been defined as justice outside law, being ethical rather than jural or belonging to the sphere of morals than law. It is grounded on precepts of conscience and not on any sanction of positive law. However, considerations of equity and social justice” cannot prevail over against the expressed provision of the labor laws allowing dismissal of employees for cause and without any provision for separation pay. Manning International Corp v. NLRC, 195 SCRA 155 (1991) Balancing Conflicting Claims

Labor Relations (Art212)

any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer.

EE any individual employed by an employer.

any person compulsorily covered by the GSIS under Commonwealth Act Numbered One hundred eighty-six, as amended, including the members of the Armed Forces of the Philippines, and any person employed as casual, emergency, temporary, substitute or contractual, or any person compulsorily covered by the SSS under Republic Act Numbered Eleven hundred sixty-one, as amended. any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. Proof needed: Substantial evidence Domasig v. NLRC, 261 SCRA 779 (1996)

EER 4-fold test: HWFC 1. Selection of Employee (Hiring) 2. Payment of Wages 3. Power to Dismiss (Firing) 4. Control on employee on means and methods (Control) Control Test: [1] This is to be distinguished from the control used in Independent Contractor or IC. In IC, control is used not to test ER-EE relationship, but WON there’s control (as to the means only) as would warrant a relationship with an IC. [2] One need not actually exercise control, provided the ER reserves the right to control. It also need not be done personally or physically because it may be done through an intermediary (supervisor or manager, etc.) Insular Life v. NLRC 1989 Doctrine EER… Exists: rules that control/fix methodology + bind/restrict the party hired to use of such means (result + means) Does not exist: rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it (result only) Economic Test Sevilla v. CA Doctrine (1988) -Existing economic conditions between the parties are used to determine whether EER exist e.g. a. payment of PAG-IBIG Fund contributions b. payment/remittance of contributions to the State Insurance Fund c. deduction of withholding tax d. deduction/remittance of SSS Contributions Agreement -The employment status of a person is defined and prescribed by law and not by what the parties say it should be Insular Life Assurance Co. v. NLRC 1998 Method of Wage Payment

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boundary system: The fact that the driver does not receive fixed wages but only the excess of the “boundary” given to the owner/operator is not sufficient to change the relationship between them. Indubitably, the driver performs activities which are usually necessary or desirable in the usual business or trade of the owner/operator. The existence of an employment relation is not dependent on how the worker is paid but on the presence or absence of control over the means and method of the work. Villamaria v. CA, 487 SCRA 571 (2006) Commissions: payment of compensation by way of commission does not militate against the conclusion EER exists. Under Art.97 of LC, “wage” shall mean “however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, price or commission basis. Insular Life Assurance Co v. NLRC 1998

Hours of Work -it doesn’t follow that a person who doesn’t observe normal hours of work cannot be defined as an employee. Lazaro vs. SSS, 435 SCRA 472 (2004)

Independent Contractor and Labor Contractor Only Independent Contractors Labor-Only Contractors 1. has sufficient 1. no substantial substantial capital/investment capital/investment in in the form of machinery, tools or machinery, tools or equipment directly or equipment intended to be 2. no independent related to the job business contracted 3. performs activities 2. carries an directly related to independent the main business business different of the principal from the employer’s 4. under control and 3. undertakes to supervision of the perform the job ER under its own account and responsibility 4. not under control and supervision of the employer No EER except when the Principal treated as direct contractor or the employer of the person subcontractor fails to recruited in all instances pay the wages of the (Art106(4)) EEs (Art. 106(2)) LIMITED LIABILITY Liable FULLY as an ER (principal solidarily liable with contractor or subcontractor only when the latter fails to comply with the requirements as to unpaid wages and other labor standards violations Permissible Prohibited *The company can determine in its best business judgment whether it should contract out the performance of some of its work for as long as the employer is motivated by good faith, and the contracting out must not have been resorted to circumvent the law/ must have been the result of malicious/arbitrary action. MERALCO v. Quisumbing, 302 SCRA 173 (1999) *The court took judicial notice of the practice adopted in several institutions and industries of hiring janitorial services on an independent contractor basis. In this respect, although the janitorial services may be considered as directly related to the principal business of an employer, as with every business, we deemed them unnecessary in the conduct of employer’s principal business Coca-Cola Bottlers Phils, Inc. v. NLRC, 307 SCRA 131 (1999) VII. EMPLOYEE CLASSIFICATION A280: -written/oral agreement not binding GR: Regular: employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (consider nature of work + 1yr on the job) Other regular EEs: 1. Casual employee after 1 year of service whether continuous or broken 2. Probationalry EE who is allowed to work even after completion of probi period

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. 3. 4.

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Learner who is allowed or suffered work during first 2 months of learner period, if training is terminated by ER before end of stipulated period Project employees where the employment period is extended long after the supposed project has been finished

Seasonal Employees GR: where the work to be performed or service to be performed is seasonal in character, the employment is deemed to last only for the duration of the season. X: seasonal employees who are constantly rehired after every season are considered merely on LOA with pay. Their employment relationship is never severed but only suspended. Manila Hotel v. CIR, 9 SCRA 184 (2003)

Project employees performing activities which are usually necessary or desirable in the usual business or trade of the ER + continuously for more than the duration of the period Imbuido v. NLRC, 329 SCRA 357 (2000)

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Workpool employees CONTINUOUSLY (not intermittently) re-hired by SAME EMPLOYER, SAME TASK/NATURE OF TASK and Task vital, necessary and indispensable for the usual business of the employer Maraguinot v. NLRC (1998)

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Seasonal employees who are continuously rehired Manila Hotel v. CIR

X: -employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee (Project employee) -service to be performed is seasonal in nature and the employment is for the duration of the season (seasonal employees) Special Rules Project employees *A280: (1) For a specific project or undertaking; (2) completion/termination determined at time of engagement *immaterial if the employment lasts longer than 1 year: length of service is not controlling for project employees. Even if service renewed, if every time renewed, they had a contract for a specific term or duration Palomares v. NLRC, 277 SCRA 439 (1997) *if dismissal unjustified + before expiration of the term, the project EE should be paid his salary for the unexpired portion of his contract. AM Oreta & Co v. NLRC, 176 SCRA 218 (1989) *the project and principal business must be separate and distinct from each other ALU-TUCP v. NLRC, 234 SCRA 678 (1994) Casual Empolyees TEST: not the employment contract, but the nature of the job (if usually necessary or desirable to the main business of the ER, EE regular employee AM Oreta & Co v. NLRC, 176 SCRA 218 (1989) *If more than 1 year in service: status of regular employment attaches to the casual worker on the day immediately after the end of his 1st year of service Kimberly v. Drilon, 185 SCRA 190 (1990) *On janitorial and messengerial services: may be considered directly related to the business, BUT they are deemed necessary San Miguel Corp v. Abella, 461 SCRA 392 (2005) Fixed term employment Brent v. Zamora Doctrine 1. Fixed term employment is valid. Nothing in the law prohibits fixed term employment, provided, that it does not intend to circumvent the law on tenurial security 2. 2 requisites for validity: (a) entered knowingly and voluntarily by the parties without any force, duress or improper pressure (b) ER and EE dealt with each other on more or less equal terms, no moral dominance over the other *Seafarers: contractual employees, whose employment is governed by the POEA standard employment contract Millares v. NLRC, 385 SCRA 307 (2002)

Residency Training -resident trainees are never permanent: it is a step taken by physician right after post graduate internship prior to recognition as a specialist or sub-specialist in a given field. Xxx they enjoy right to security of tenure ONLY to extent that they periodically make the grade, making the situation quite unique. Felix v. Buenaseda, 240 SCRA 139 (1995) VIII. Probationary Employee A281

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shall not exceed 6 months from date the employee started working (unless apprenticeship for a longer period). 6 month period = 180 days Mitsubishi v. Chrysler Labor Union, 433 SCRA 206 (2004) services may be terminated for just cause

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when EE fails to qualify as a regular EE in accordance with reasonable standards made known by ER to EE at the time of his engagement *termination may be done even before the end of the probationary period, International Catholic Migration Commission v. NLRC, 169 SCRA 508 (1989)

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ER has obligation to inform the EE of the reasonable standards to qualify as regular EE Mitsubishi v. Chrysler Labor Union, supra.

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if allowed to work after the probationary period, shall be considered a regular EE Holiday Inn Manila v. NLRC, 226 SCRA 417 (1993)

Exceptions to the 6-month rule: *Buiser v. Leogardo (salesrep case), 131 SCRA 151 (1984): 6month rule may be extended provided: 1. parties agree so 2. longer period necessary to learn the nature of the work to be performed * probi EE may become a regular EE even before the 6 months had lapsed. International Catholic Migration Commission v. NLRC, supra * Mariwasa v. Leogardo, 169 SCRA 465 (1989): 6-month period may be extended, provided: 1. absence of any indication that the extension is a mere stategem of the ER to avoid the legal consequences of a probi period satisfactorily completed 2. written consent of the EE 3. EE wanted the extension to improve his performance and to qualify for regular employment *Absorbed employees (merger of companies, EEs of the absorbed company absorbed into the newer company) -cannot be considered probi: they were already well-trained in their respective functions Cebu Stevedoring v. Regional Director, 168 SCRA 315 (1988) -no double probation: if probi before then became a regular EE, then absorbed to another company, cannot be subjected to another probi employment. A Prime Security Services v. NLRC, 322 SCRA 283 (2000) *Private School Teachers

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. -rehired successively for continuous years + teach full time + service satisfactory = regular teachers (manual of regulation for Private Schools) *IRR: 1. engaged in LEARNABLE/APPRENTICEABLE work: probi period limited to authorized learnership/apprenticeship period 2. NEITHER LEARNABLE/APPRENTICEABLE: shall not exceed 6 months from date employee actually started working 3. TERMINATION: only for just/authorized cause or if fails to qualify as a regular employee (same as A281) 4. REASONABLE STANDARDS: should be made known AT THE TIME OF ENGAGEMENT, or else deemed regular LABOR STANDARS Purpose of the provisions -to alleviate the plight of workers whose wages barely meet the spiraling costs of basic needs Mariveles Shipyard Corp. v. CA, 415 SCRA 573 (2003) Recruitment and Placement of Workers Art13(b): Recruitment and Placement: any act of 1. Canvassing 2. Enlisting 3. Contracting 4. Transporting 5. Utilizing 6. hiring 7. or procuring workers and includes a. referrals b. contract services c. promising or advertising for employment …locally or abroad …whether for profit or not Proviso: 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 Who are allowed to recruit GR: Public Employment Offices (Art16) X: Private employment sector allowed under guidelines, rules and regulations as may be issued by the secretary of labor Guidelines for allowing: 1. citizenship requirement: only Filipino citizens/corporations, partnerships/entities at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens (A27) 2. substantial capitalization (A28) 3. application for license, paying registration fees (A30) and bonds (A31) Prohibited recruitment 1. (A18) direct-hiring for overseas employment, except -diplomatic corps -international orgs -Other employers allowed by secretary of labor 2. (A26) travel agencies License requirements Art.13d License: document issued by the DOLE authorizing a person or entity to operate a private employment agency (charges fee – Art13c) Art 13f Authority: document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity (without charging fee – Art13e) So ulit (in order in Art13): ELRA private Employment agency: with fee: License

private Recruitment entity: without fee: Authority *license territorial: could only undertake recruitment and placement activities in the region where the license was granted People v. Buli-E, 404 SCRA 105 (2003) Illegal Recruitment *To determine whether LC or the Migrant Workers Act of 1995 (RA 8042) applies, determine the place of work: If in RP: LC applies If Abroad: MWA applies Acts: Art13b, Art34 Elements: (under LC) 1. no valid license/authority (A38) 2. does acts under Art13b or Art34 (Under MWA) 1. no valid license/authority + performs acts under Art13b, LC 2. has valid license/authority + performs acts under Art6, MWA Large scale or by syndicate: considered an offense involving economic sabotage Large scale illegal recruitment: committed against 3+ persons individually or as a group Illegal recruitment by syndicate: carried out by a group of 3+ persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme Guidelines on enforcement of rights Determine: * The Place of work to know which law to apply (LC or MWL) * The Acts involved (C-E-C-T-U-H-P or R-C, etc.) * The nature of the offense (Simple, in Large Scale or by a Syndicate) - Illegal Recruitment by a Syndicate – when carried out by a group of 3 or more persons conspiring to carry out any unlawful transaction (# of violators involved) - Illegal Recruitment in Large Scale – when committed against 3 or more persons individually or as a group (# of workers involved) Notes: [a] In MWA, money claims are within the jurisdiction of the Labor Arbiter, NLRC. [b] The Sec. of Labor has regulatory and visitorial functions (A36 & 37 of LC). But he can no longer order the arrest of violators. HE cannot issue search or arrest warrants, as this must go through the judicial process, since A38par.(c) of LC already deemed unconstitutional. [c] 3 separate informations of illegal recruitment cannot be consolidated in order to charge the offense from simply to large scale or by a syndicate. Alien Employment Requisites 1. Employment permit (Art40) -nonresident aliens need employment permit from DOLE -resident aliens: No need Almodiel v. NLRC, 223 SCRA 341 (1993) 2. SOLE determine: a. non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired (Art40) b. other factors like economic and national interest considerations 3. only SOLE authorized to issue Employment Permit Gen Milling Corp v. Torres, 196 SCRA 215 (1991) 4. no transfer of employment from one ER to another because EP was granted only for that particular job (Art41)

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. 5. there must be an understudy program to assure technology transfer (IRR) Special Class of Workers (TESDA Act of 1994, RA 7796) A. Apprentice Defined (Sec4) 1. w/n employment

2.

w/ compulsory related theoretical instructions/ apprenticeship program (approved by DOLE before apprenticeship agreement entered into. Nitto Enterprises v. NLRC, 248 SCRA 654 (1995) involves a contract between an apprentice and an ER highly skilled trade or skill

3. 4. 5. Apprenticeable Occupation: officially endorsed by a tripartite and approved by Authority

Qualifications Sec12 employment of children below 15yo 1. when child works directly under sole responsibility of parents/legal guardian -only members of employer’s family employed -provided: a. no danger b. provide with education 2. public and entertainment/info (cinema, theater, radio, tv) -DOLE permit -concluded by parents -express agreement by child -prevent child exploitation, discrimination -continuing program for training and skills acquisition Terms and Conditions A61 1. max. 6 months 2. min 75% below min. wage 3. apprenticeship program approved by DOLE A72 (OJT): without compensation Costs: A71 -ER may deduct ½ costs of training expenses from taxable income provided: a. apprenticeship program recognized by DOLE b. deduction shall not exceed 10% of direct labor wage c. pay apprentice min. wage (not 75% of the min wage) B. Learners 1. trainees in a. semi-skilled b. other industrial occupation (non-apprenticeable) 2. Learnership program APPROVED by authority 3. can only be hired when (A76(b)): a. no experienced worker available b. employment necessary to prevent curtailment of employment opportunities c. employment doesn’t create UNFAIR COMPETITION in terms of labor costs/impair/lower working standards 4. the contract should include (A75): a. names and addresses b. duration (maximum of 3 months) c. wages: minimum 75% of applicable min. wage d. commitment of ER to hire learners as regulars 5. would be deemed as regulars if: worked first 2 months, terminated before end of stipulated period, no fault on learner C. Handicapped Workers - If qualified, handicapped workers may be considered apprentices or for apprenticeship -should be given the same terms and conditions of a qualified able-bodied person. Should be paid full compensation, like a regular EE, Bernardo v, NLRC, 310 SCRA 186 (1999)

VI. Conditions of Employment A. Hours of Work Coverage A82 Covered: EEs in all establishments and undertakings, whether for profit or not. (Sir: All EEs in private sector) NOT Covered: Governmentt EEs, Managerial EEs, Field Personnel, Members of ER’s family dependent upon for support, Domestic helpers, Persons in personal Service of another, Piece worker Note: If Piece worker earns less than minimum wage, then he’s paid the minimum wage *Managerial EE – primary duty consists of mgt of establishment, includes members of managerial staff *Field Personnel – non-agricultural EE who regularly perform duties away from principal place of business and whose actual hours of work in the field cannot be determined with reasonable certainty. TEST to determine if Field Personnel:

1.

not under the effective control and supervision of the ER Merdicar Fishing Corp. v. NLRC, 297 SCRA 440 (98)

2.

number of hours spent working cannot be reasonably ascertained Union of Filipro Employees v. Vivar, 205 SCRA 200 (1992)

Normal Hours of Work (A83): 8 hours max Health personnel GR: 8 hrs, 5 days/wk (40 hrs) X: 8hrs, 6 days/wk (48 hrs) – entitled to min 30% of regular wage on 6th day Compressed Work Week: Requisites (a) the employee voluntarily agrees to it (b) there is no diminution in their weekly or monthly take home pay or fringe benefits (c) The benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week. (d) overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule. (e) no strenuous physical exertion or that they are given adequate rest periods (f) it must be for a temporary duration as determined by the department of labor Hours worked (to be compensable) (A84): includes a. EE required to be on duty b. EE suffered or permitted to work

c. d.

Rest periods* of short duration during working hours.

Travel time, when beneficial to ER Rada v. NLRC, 205 SCRA 69 (1992) i. travel from home to work: if on call and required to travel ii. all in the day’s work: traveling is the principal activity, regardless of contract, custom, practice iii. travel away from home: cut’s across EE’s workday *Not counted when: (Luzon Stevedoring v. Luzon Marine Department Union, 101 Phil. 257 (1957)) i. EE ceases to work; ii. EE may rest completely;

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. iii. EE may leave at his will the spot where he actually stays while working to go somewhere else. iv. when work is broken/not continuous NDC v. CIR, 6 SCRA 763 (1962) v. Assembly time, routinary practice of EEs, proccedings not infected with complexities so as to deprive EEs time to attend to their personal pursuits Arica v. NLRC, 170 SCRA 776 (1989) vi. Meal time (60 mins – A85), unless predominantly spent for ER’s benefit Overtime pay *A87: - if beyond 8hrs, regular working day: regular wage + 25% of regular wage = overtime pay - if on holiday/rest day: rate of 1st 8 hours on a holiday/rest day + 30% of holiday pay/rest day pay *if contract requires for more than 8hrs of work/day, void if not provide: a. fixed hourly rate or b. daily wages include OT Manila Terinal Co v. CIR, 91 Phil 625 (1952) c. if built-in OT, could provide higher pay, WON excess time worked or unworked Engineering Equipment Inc. v. MOLE *cannot offset OT by undertime (A88) *ER can be compelled to perform OT work under A89, with OT Pay: a) When there’s WAR, national or local emergency declared by Congress or Chief Exec/Pres; b) When necessary to prevent LOSS of life or property or in case of imminent danger to public safety; c) When there’s URGENT work to be performed on machines, installations etc, to avoid serious loss or damage to ER; d) When work necessary to prevent loss or damage to PERISHABLE goods; e) When completion or continuance of work started before the 8th hour is necessary to prevent SERIOUS obstruction or prejudice to ER business Night Shift Differential *A86: if work between 10pm-6am, entitled to night shift differentials Night shift differential pay= 10% of regular wage for each hour of work performed *question: what about Call-center agents? *from DOLE Where Night Shift (10 PM to 6 AM) Work is Regular Work 1. On an ordinary day — Plus 10% of the basic hourly rate or a total of 110% of the basic hourly rate. 2. On a rest day, special day or regular holiday — Plus 10% of the regular hourly rate on a rest day, special day or regular holiday or a total 110% of the regular hourly rate. Where Night Shift (10 PM to 6 AM) Work is Overtime Work 1. On an ordinary day — Plus 10% of the Overtime hourly rate on an ordinary day or a total of 110% of the overtime hourly rate on an ordinary day. 2. On a rest day/special day/ a regular holiday — Plus 10% of the overtime hourly rate on a rest day/Special day/regular holiday 3. For Overtime work in the night shift: 1. On an ordinary day — Plus 10% of 125% of basic hourly rate or a total of 110% of 125% of basic hourly rate. 2. On a rest day/special day/ regular holiday — Plus 10% of 130% of the regular hourly rate on said days or a total of 110% of 130% of the applicable regular hourly rate. B. Weekly Rest Periods *A91: ER should provide EE 24 consecutive hours rest period after every 6 consecutive normal workdays (so may day-off)

-ER shall determine, subject to: (a) CBA; (b) rules and regulations provided by SOLE; (c) preferences of EE, based on religious grounds *92: Even if rest day, ER may require EE to work:

a)

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 and property, or imminent danger to public safety; b) in cases of URGENT work to be performed on the machinery, equipment, or installation, to avoid serious loss which the ER would otherwise suffer; c) in the event of ABNORMAL PRESSURE OF WORK due to special circumstances, where the ER cannot ordinarily be expected to resort to other measures; d) to prevent loss or damage to PERISHABLE goods e) Where the nature of the work requires CONTINUOUS OPERATIONS and the stoppage of work may result in irreparable injury or loss to the ER; f) Under other circumstances analogous or similar to the forgoing as DETERMINED by the SOLE *93: Compensation for Rest Day, Sunday or Holiday Work a. scheduled rest day = Sunday: paid additional 30% of regular wage b. nature of work: no regular rest day + Sundays/holidays: paid additional 30% of regular wage c. special holiday: paid additional 30% of regular wage if special holiday + scheduled rest day: 50% of regular wage d. CBA stipulates higher rate: ER pay higher rate HOLIDAY PAY *A94: during holidays a. EE paid regular daily wage (no work) except: in retail and service establishments + less than 10 workers employed b. ER may require EE to work during holiday BUT pay 2x regular rate c. HOLIDAYS: Regular Holidays in EO 203 i. New Year’s Day ii. Maundy Thursday iii. Good Friday iv. April 9 (Araw ng Kagitingan) v. May 1 (Labor day) vi. June 12 (Independence Day) vii. July 4 (Fil-Am Friendship Day) viii. Nov. 30 (Bonifacio Day) ix. Dec 25 (Xmas) x. Dec 30 (Rizal Day) xi. General election day xii. Eidul Fitr - Movable date RA 9177 *xiii. Eidul Adha – regular holiday observed in ARMM Special nonworking day: EO 203, RA 9492 i. Monday nearest August 21 (Ninoy Aquino Day) ii. Nov. 1 (All Saints Day) iii. Dec. 31 (Last Day of the Year) *if 2 regular holidays fall in a single day (Asian Transmission Corp vs. CA, 425 SCRA 478 (2004)): -if unworked: EE receives 200% of regular wage (100% for each regular holiday) -if worked: EE receives 400% of regular wage (2x 100% for each regular holiday) *FOR PRIVATE SCHOOL TEACHERS (paid per lecture hour): not entitled to unworked holiday pay for regular holidays, but entitled to holiday pay for special public holiday, and when classes are called off or shortened on account of typhoons, floods, rallies, and the like Jose Rizal College v. NLRC, 156 SCRA 27 (1987) – except regular holidays during Christmas vacation (LC IRR)

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. *If holiday falls on a Sunday: ER only obliged to give holiday pay Wellington Investment Inc. v. Trajano, 245 SCRA 561 (95) *other special rules in IRR C. Leaves *A 95: Right to Service Incentive Leave (SIL) a. EE should have rendered 1 year service. 5 day SIL with pay b. not applicable to: i. those already benefit provided herein ii. those already enjoying 5-day leave with pay iii. those employed in establishments regularly employing less than 10 EEs/ iv. those employed in establishments exempted from granting SIL by SOLE (considering viability or financial condition of such establishment) v. gov’t employee, GOCC employees vi. domestic helpers, persons in the personal service of another vii. managerial employees

viii.

field personnel and other employees whose performance is unsupervised by the employer including: (a) those who are engaged on task or contract basis (b) those engaged on purely commission basis (c) those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof c. grant of benefit in excess of SIL shall not be made a subj of arbitration Paternity Leave (Paternity Leave Act of 1996, RA 8187) -every married male employee, public/private sectors -7 days, full pay for first 4 deliveries (childbirth, miscarriage) -of LEGITIMATE spouse with whom he is cohabiting -notify employer of pregnancy, expected date of delivery Ratio: lend support to his wife during period of recovery and/or nursing of newborn baby Maternity Leave (Sec.14-A, RA 8282) -female employee -regardless if married or unmarried -paid at least 3 monthly contributions in the 12-mnth period immediately preceding the semester of her childbirth/miscarriage -paid daily maternity beneit = 100% of average salary credit for 60 days: normal delivery 78 days: caesarian delivery

- Only government EEs entitled to vacation and sick leaves. - No vacation or sick leaves to EEs in the private sector. It should be negotiated by the EEs to the ER. - The payment of vacation and sick leaves is governed by ER’s policy or agreement between ER and EE Solo Parent Leave (RA 8972) 1. rendered at least 1 year of service 2. notified ER w/n reasonable period 3. presented solo parent ID other benefits: -educational benefits -flexi-work schedule -housing benefits - Only government EEs entitled to vacation and sick leaves. - No vacation or sick leaves to EEs in the private sector. It should be negotiated by the EEs to the ER. - The payment of vacation and sick leaves is governed by ER’s policy or agreement between ER and EE IX. Wages Coverage: A97 (who are included); A98: not included: a. farm tenancy or leasehold b. domestic service c. persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law Definition: A97(f) remuneration or earnings capable of being expressed in terms of money whether fixed on a time, task, piece, commission basis or other method of calculating the same, paid to EE, under written or unwritten contract of employment, for work done, to be done or services rendered or to be rendered

-

includes fair and reasonable value (determined by Sec. of Labor) of board, lodging and other facilities customarily furnished by ER to EE “fair and reasonable value” – shall not include any profit to ER or to any person affiliated with ER “fair day’s pay for a fair day’s work” Facilities v Supplements *Facilities – items of expense necessary for the EE’s and his family’s existence and subsistence and form part of the wage. If furnished by ER, deductible from wage. (e.g board, lodging etc.) *Supplements – constitute extra remuneration or special benefits given to or received by EEs over and above their ordinary earnings or wages.

Conditions: *notified employer of pregnancy and probable date of childbirth – transmitted to SSS *full payment advanced by ER w/n 30 days from filing of maternity leave application *payment of daily maternity benefits = bar to recovery of sickness benefits during same period *Maternity benefits = 1st 4 deliveries *SSS immediately reimburse ER upon receipt of satisfactory proof of such payment, if: -w/o required contributions having been remitted for her by her ER to the SSS -w/o SSS having previously notified by ER of TIME of pregnancy …ER pay damages to SSS equivalent to benefits w/c EE member would otherwise have been entitled to

Wage v Salary Gaa v CA case - Wage and salary are in essence synonymous because they refer to the same meaning: reward or pay for services rendered. - Distinction: Wage applies to compensation for manual labor, and to skilled or unskilled work, while salary denotes a higher degree of employment and applies to high-skilled or highly technical type of job. (Note: This distinction is only artificial. It is only for attachment or garnishment purposes. Wage is too small to be attached or garnished)

Sick Leave and Vacation Leave: Voluntary Benefits

Payment of Wages

Gratuity v Wages Gratuity pay is not intended to pay EE for job done but to reward EE for satisfactory or efficient service. It is gratuitous, and as such, is a gift.

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. Form (A102): Not in: -promissory notes -vouchers -coupons -tokens -tickets -chits -any other than legal tender, even when expressly requested by the EE *payment by check or money order: Allowed when: 1. manner of payment customary on the date of effectivity of LC 2. manner of payment necessary because of special circumstances (specified in SOLE regulations/CBA) Time of Payment (A103) -at least once every 2 weeks or 2x a month (at max 16 day intervals) -if cannot pay because of force majeure, ER pay wages immediately after such force majeure or circumstances have ceased -least frequency: once a month -if task to be performed cannot be completed in 2 weeks + NO CBA/Arbitration award: a. payments made at intervals not exceeding 16 days, in proportion to the amount of work completed b. final settlement is made upon completion of work Place of Payment (A104) GR: at or near the place of undertaking X: -SOLE regulations -RA 6727: can pay thru banks if (a) with majority approval; (b) banks within 1km radius from place of undertaking Direct Payment (A105) GR: pay to workers directly X: 1. force majeure: through another person + written authority given by ER for the purpose

2.

EE died: pay wages to heirs ER authorized in writing by EE to pay wages to a family member 4. payment to another person authorized by law + in writing 3.

Non-interference (A112) -ER cannot interfere with freedom of EE to dispose wages -EE cannot be compelled to purchase from ER Wage Deduction (A113) GR: ER cannot make deductions from EE’s wages X: -insurance premium -union check-off -when ER authorized by law or SOLE regulations -with written authorization from EE’s, ER not pecuniary benefit Unlawful deductions/ Withholding/ Deposits 1. Deposits for Loss or Damage (A114) GR: no deposit for reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer X: -ER engaged in trades, occupation or businesses with recognized practice of making deductions or requiring deposits -deductions/deposits necessary or desirable as determined by SOLE *if deposit for actual amount paid by EE, EE should have been heard + his responsibility clearly shown (A115) 2. Witholding Wages and Kickbacks (A116): unless with the EE’s consent

3. deduction to ensure employment (A117) 4. Retaliatory measures (A118): when EE -filed complaint/instituted proceedings against ER under this Title (Wages) -has testified/about to testify in such proceedings Other forms of Remuneration A. Service Charges (196) Coverage: establishments collecting service charges -hotels -restaurants -lodging houses -night clubs -cocktail lounge -massage clinics -bars -casinos -gambling houses -similar enterprise (including Gov’t entitles) Distribution: 15% management – lossess and breakages + distribution to managerial employees 85% equally among ALL employees Frequency of distribution: 2x a month Service Charge vs. Tips: Notes: 1) Service charges are charges for the use of facilities, so there’s a sharing agreement while tips are for EEs only, thus no sharing with ER; 2) The moment ER abolishes service charges, ER must integrate in wages the average share of EE in the service charges. This occurs by automatic operation of law. B. 13th Month Pay (PD 851) Coverage: All EEs provided they have worked for at least 1 month dring a calendar year. X: EEs: Government EEs Household helpers Terminated EEs, but may be paid in proportion to the length of time worked during the year. ERs: Government and its political subdivision, and GOCCs except those operating as private subsidiaries of the government ERs already paying their EEs a 13th month pay or its equivalent ERs of household helpers and persons in personal service of another ERs of those who are paid on purely commission, task basis, except where EEs are paid on piece work basis. C. Bonus -The grant of a bonus is a management function and not an obligation. It is not a demandable and enforceable obligation. It is entirely dependednt on the Financial Capability of Employer to give it. -When demandable: when it is made part of the wage or salary or compensation of the EE. *Performance bonus – there’s a criteria; only for those who meet criteria *Across-the-Board bonus – all EEs, but sometimes not all actually Wage Recovery *For independent contractor-ER-EE: independent contractor and ER solidarily liable for payment of wages (A106) *if ER in Receivership, should institute claims in receivership proceedings Minimum Wages -consti provides that EE be provided a living wage

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. -same margin or leeway must be provided, over and above the minimum, to take care of contingencies Atok Big Wedge Mining Co., Inc v. Atok Big Wedge Mutual Benefit Association, 92 Phil 755 (1953) Focus of the law: Determining the agencies established for wage fixing machinery, namely: 1 – National Wages and Productivity Commission (NWPC) 2 – Regional Tripartite Wages and Productivity Board (RTWPB) Tripartite consists of the following: ER, EE and Government • NWPC (Commission) [a] Prescribe or set rules and guidelines for the determination of appropriate minimum wages and the factors to be considered [b] Power to review wage levels set by RTWPB; appeal power • RTWPB (Board) [a] Determines and fixed minimum wage rates applicable to region, provinces, industries [b] Promulgates the wage order IMPORTANT: The dividing line between NWPC and RTWPB is that the Commission sets the guidelines to be followed, while the Board promulgates the wage orders. Process for Minimum Wage Fixing: 1 – There must be a need determined by the board based on its study of pertinent facts, considering A124(par1) 2 – Conduct public hearings and consultations 3 – Issue wage order (W.O.) 4 – Publication of wage order in a newspaper of general circulation. W.O. takes effect 15 days thereafter 5 – Appeal to NWPC w/in 10 calendar days; NWPC required to resolve issue w/in 60 days from filing *Effect of Appeal: Appeal will NOT STAY execution of W.O., but if ER posts a surety bond, then execution of WO will stay. Wage Distortion -possible effect of wage increase -increase in prescribed wage rates resulting in an elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on Skills, Length of Service, or other Logical Bases of differentiation (SLSLB) 4 elements Prubankers Assn v. Prudential Bank & Co., 302 SCRA 74 (1999) 1. existing hierarchy of positions with corresponding salary rates 2. significant change in salary rate of a lower pay class w/o concomitant increase in salary rate of higher one 3. elimination of distinction 4. existence of distortion How is W.D. resolved? • You have to distinguish between: 1) Organized establishment – meaning, there’s a CBA, or a union is recognized as the exclusive bargaining representative 2) Unorganized establishment – no CBA, no recognized exclusive bargaining representative even if there’s union • Different procedures for settlement of each Organized Establishment: 1 – Grievance procedure agreed in CBA 2 – Voluntary arbitration (usually a neutral third party resolves it) Unorganized Establishment: 1 – ER and EE with aid of National Conciliation Mediation Board (NCMB) through conciliation mediation 2 – Compulsory arbitration by NLRC

*ER can unilaterally resolve W.D. but ER has no obligation to restore the same differential which existed prior to the W.D. as long as ER restores a differential Notes: 1) W.D. will always be a factual issue. The existence of a W.D. will not stop execution of W.O.; 2) W.D. is localized. It will only apply in a given industry or region and not nationwide; 3) A minimum wage order cannot be less than that prior to the W.O. (A100 LC re rule against diminution or elimination of income or benefits). X. Women Workers Prohibited Acts Under LC 1. Night Work GR: No night work (A130) a. industrial: 10pm to 6am the following day b. commercial/non-industrial (other than agricultural): 12mn to 6am the following day c. agricultural: nighttime (unless given a period of rest of min.9 consecutive hours) X: A131 a. Actual or impending emergencies b. Urgent work c. Serious loss of Perishable goods

d.

Has position of managerial of technical nature, or engaged to provide health and welfare services e. Manual skill and dexterity of woman workers required f. Immediate members of the family operating the establishment or undertaking g. Analogous cases 2. Discrimination: in terms and conditions of employment (A135) a. pay less compensation for work of equal value b. with respect to promotion, training opportunities, study and scholarship grants 3. Marriage: as condition of employment (pre-employment) or continuation of employment (employment proper) 4. Pregnancy: discharge because of pregnancy (on leave or not, upon returning to work on fear that she may be pregnant again) 5. Deny benefits under LC/ discharge woman EE to deny her of LC benefits *Facilities: ensure safety and health, seats, separate toilet rooms, lavatories, dressing room, nursery, determine min. age *Certain Women Workers (A138) -with or without compensation -in night club, cocktail lounge, massage clinic, bar or similar establishments -under effective control or supervision of the ER for a substantial period of time as determined by SOLE -considered as EE *Entitled to Maternity leave, husband to paternity leave Sexual Harassment (RA 7877) Requisites: 1. authority/influence/moral ascendancy 2. in work/training/educational environment Work related environment: -condition for employment -impair rights, privileges -IHO (intimidating, hostile, offensive) environment Education/training-related environment: -under care/supervision -entrusted to offender -condition for school… -IHO environment 3. demands sexual favor

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr.

4. regardless if accepted or not -ER has duty to prevent it, provide procedures for settlement -ER liable if failed to act/no immediate action done even if informed of the act XI. Minors (RA 7610) *children: below 18/ above 18 but can’t fully take care of themselves *Child abuse: -maltreatment -habitual/not *working children: if BELOW 15: Can’t be employed unless: -works directly under sole responsibility of parents, only ER’s family employed -works in publicentertainment/onfo *Work permit should be first secured from DOLE *Nonformal education program should be provided *Can’t employ child models for: -alcoholic beverages -intoxicating drinks -tobacco and by-products -violence XII. Househelpers *Coverage (A141): -service in ER’s home (if works in corporation’s resthouse and recreational facilites for use of top executives and clients of the corporation, not domestic employees Apex Mining Co. Inc vs. NLRC, 196 SCRA 251 (1991) -usually necessary/desirable for MAINTENANCE/ENJOYMENT thereof -includes MINISTERING TO THE PERSONAL COMFORT AND CONVENIENCE of members of ER’s household -includes services of family drivers *Period of Contract: 2 years, renewable *Minimum Wage (A143), minimum cash wage = basic cash wage + lodging, food and medical attendance (A144) *non-household work (commercial/industrial/agricultural): should be paid higher salary rate than agricultural/nonagricultural workers (A145) *Opportunity for education (A145): -below 18 years -opportunity for at least elementary education -cost of education: part of compensation, unless contrary stipulation *Treatment of Househelpers: -just and humane manner, no physical violence (A147) -furnish with free suitable and sanitary living quarters + adequate food + medical attendance (A148) *domestic househelpers EXPRESSLY EXCLUDED from coverage of OT, holiday pay, premium pay, SIL (A82) XIII. Homeworkers ER (155): 1. delivers/cause to be delivered any goods to be processed/fabricated, returned to be disposed/distributed 2. sell goods, articles, have same processed/fabricated/rebuys Industrial Homeworker: work for an ER/contractor is carried out by a Homeworker at his/her home -materials may/may not be furnished XIV. Termination of Employment Coverage (A278): -all establishment -for profit or not *for contract employees: security of tenure only to a limited extent: during period of time their respective contract of employment remained in effect :Labajo v. Alejandro, 165 SCRA 747 (1988)

*Probationary employees: enjoys security of tenure (Skillworld Management and Marketing Corporation v. NLRC 186 SCRA 465 (1990): -during the probationary period -before the contract expires A. Termination of Employment by the EE Causes: a. just cause (285b): -without serving notice: 1. serious insult by employer of honor and person of employee 2. inhuman and unbearable treatment 3. commission of a crime/offense 4. analogous causes b. w/o just cause (288a) -serve written notice at least 1month in advance, or else ER may hold EE liable for damages Resignation -voluntary act of an employee who finds himself in a situation where he believes that PERSONAL REASONS cannot be sacrificed in favor of the exigency of the service + no other choice but to disassociate himself from employment Habana v. NLRC, 298 SCRA 537 (1998) -requisites: 1. unconditional 2. with intent to relinquish a portion of term or of office 3. act of relinquishment *4. voluntary (for voluntary resignation) *Floating Status: should last only for a legally prescribed period of time. When that status of an EE exceeds 6m, he may be considered to have been illegally dismissed from the service. Valdez v. NLRC, 286 SCRA 87 (1998) When no termination of employment(A286): -bonafide suspension of business or undertaking for a period not exceeding 6 months -fulfillment by the EE of a military or civic duty B. Termination of Employment by ER Requirements: 1. Based on the grounds in A282,283 or 284

2.

observance of due process requirements (A277b)

I. Substantial Due Process Requirements: based on grounds in LC A283 Just causes: a. SERIOUS MISCONDUCT/WILLFUL DISOBEDIENCE of the lawful orders of ER in connection with work b. GROSS AND HABITUAL NEGLECT c. FRAUD/WILLFUL BREACH of trust reposed in EE d. COMMISSION OF A CRIME/OFFENSE by EE against e. Analogous causes a. SERIOUS MISCONDUCT requisites (Premiere Dev’t Bank v. Mantal, 485 SCRA 234 (2006)) i. serious ii. must relate to the performance of EE’s duty iii. EE must be unfit to continue work WILLFUL DISOBEDIENCE i. assailed conduct WILLFUL/INTENTIONAL, willfulness characterized by wrongful or perverse attitude ii. order violated: reasonable, lawful, made known to employee, must pertain to duties which the EE has been engaged to discharge b. GROSS AND HABITUAL NEGLIGENCE

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. defined (Chua v. NLRC, 453 SCRA 244 (2005) GROSS NEGLIGENCE: want of care in the performance of one’s duties HABITUAL NEGLIGENCE: repeated failure to perform one’s duties for a period of time

-on Residency training: promotion to the next post-graduate year is based on merit and performance determined by periodic evaluations and exam of knowledge, skills and bedside manner. If did not make the grade, can be terminated. Felix v. Buenaseda (1995), supra

c. FRAUD/WILLFUL BREACH OF TRUST (LOSS OF CONFIDENCE) i. employee concerned holds a position of trust and confidence – entrusted with confidence in handling delicate matters (managerial EE) ii. act work-related: would show EE unfit to continue working iii. there is some basis for such loss of confidence when ER has REASONABLE GROUND TO BELIEVE that EE concerned is responsible for purported misconduct and nature of participation renders him unworthy of trust iii.a loss of confidence should not be simulated iii.b should not be used as Subterfuge for causes which are improper/illegal/unjustified iii.c should not be arbitrarily asserted in face of overwhelming evidence to the contrary iii.d must be genuine, not a mere afterthought to justify earlier action taken in BF *lack of material or pecuniary damages would not in any way mitigate a person’s liability or obliterate the loss of trust and confidence Cadiz v. CA, 474 SCRAS 232 (2005)

*Love and Morals -immorality: the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. For teachers, they must abide with standard of personal conduct which not only proscribes the commission of immoral acts, but also prohibits behavior creating suspicion of immorality because of the harmful impression it may have on the students. Santos v. NLRC, 287 SCRA 117 (1998) -however, if teacher and student fell in love, and there is no substantial evidence that the teacher took advantage of position as a teacher to court the student, their relationship is not a ground for dismissal. Yielding to this gentle and universal emotion is not to be so casually equated with immorality. Chua-Qua v. Clave, 189 SCRA 117 (1990) *In the Manual of Regulations for Private Schools, Disgraceful or immoral conduct is a ground for termination of a teacher

d. COMMISSION OF A CRIME -against: i. the person of his ER ii. person of any immediate member of ER’s family iii. person of duly authorized reps of ER

*Criminal Case -guilt or innocence in a criminal case is not determinative of existence of a just or authorized cause for dismissal. It follows from the principle that the quantum and weight of evidence necessary to sustain a conviction in a criminal case are quite different from the quantum of evidence necessary for affirmance of a decision of labor arbiter and NLRC

e. ANALOGOUS CASES -susceptible of comparison with the causes enumerated either in general or in some specific detail, or has a close relationship with the latter Lim v. NLRC, 259 SCRA 485 (1996) -examples: *quarrelsome/bossy, sheer disrespect and defiance of authority = serious misconduct/insubordination Cathedral School of Technology v. NLRC, 214 SCRA 551 (1992) *Abandonment: Requisites (Leonardo v. NLRC, 333 SCRA 589 (2000)) i. failure to report for work/absence without valid or justifiable reason ii. clear intention, as manifested by some overt acts, to sever EER -not inferred or presumed Had. Dapdap v. NLRC, 285 SCRA 9 (1998) *borrowing money = serious misconduct -used trust relationship as a leverage for borrowing money *Habitual Absenteeism = gross and habitual neglect i. w/o leave ii. violated company rules and regulations iii. repeated for a period of time *end of term in Term Employment -upon expiration of period stipulated, appointment deemed terminated, no need for notice requirements Brent School v. Zamora, 181 SCRA 702 (1990) *Past Infractions Requisites (La Carlota Planters Assn v. NLRC, 298 SCRA 252 (1998)) i. the past infractions are related to the subsequent offense ii. the past infractions has a bearing to the proximate offense warranting dismissal *End of Professional Training

*Violation of company rules -deemed analogous to SERIOUS MISCONDUCT

*Moonlighting -subcontracting for another company clearly showing intention to sever the EER with the EE. Agabon v. NLRC, 442 SCRA 573 (2004) *Suspicion -never been a valid ground for dismissal and EE’s fate cannot, in justice, be hinged upon conjectures and surmises Eastern Telecommunications Phils. Inc. v. Diane, 491 SCRA 239 (2006) *Resignation and Effectivity -when the EE has already voluntarily resigned, employment deemed terminated *Abolition of Position Requisites (Benguet Electric Cooperative v. Verzosa, 425 SCRA 41 (2004)) i. position no longer necessary ii. no findings of malice and arbitrariness on part of management/ER Transfers – Discharge and Suspension -security of tenure not a vested right in a position as would deprive the company of its prerogative to change the EE’s assignment/transfer them where they will be useful -not unreasonable, inconvenient, nor prejudicial to an employee -no demotion in rank, diminution of pay, benefits, privileges and management prerogative to transfer/assign employees Constructive Discharge Defined (Philippine-Japan Active Carbon Corp. v. NLRC, 171 SCRA 164 (1989) - involuntary resignation resorted to when a. continued employment is renderd …impossible …unreasonable

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. …unlikely b. offer involving demotion in rank c. diminution in pay Preventive Suspension -continued employment poses SERIOUS & IMMINENT THREAT to LIFE & PROPERTY of the ER or the co-workers GlobeMackay Cable and Radio Corp v. NLRC, 206 SCRA 702 (1992) -resorted to for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by EE PAL v. NLRC, 292 SCRA 40 (1998) A283. Business related causes a. installation of labor-saving devices b. redundancy c. retrenchment to prevent losses d. closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing LC a. INSTALLATION OF LABOR SAVING DEVICE -installs machines in lieu of EEs for efficient production b. REDUNDANCY *Lopez Sugar Corp v. Franco Doctrine, 458 SCRA 515 (2005): -where services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Position is redundant when it is superfluous, and superfluity of a position may be an outcome of a number of factors: i. over-hiring of workers ii. dropping a product line/service activity iii. decrease in volume of business *requirements to be valid (Asian Alcohol v. NLRC, supra): i. written notice served on EE and DOLE 1 month before ii. payment of separation pay iii. GF in abolishing redundant positions iv. fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. *Fair and Reasonable Criteria for selecting EEs to be terminated (Panlilio v. NLRC, 281 SCRA 53 (1997) i. preferred status ii. efficiency iii.seniority *its wisdom/soundness not subject to discretionary review so long as i. no violation of law ii. not merely arbitrary iii. not malicious action *hiring of Independent contractor allowed as long as the latter is undertaken in order to effectuate more economic and efficient methods of production. Asian Alcohol Corp v. NLRC, 305 SCRA 416 (1999) c. RETRENCHMENT TO PREVENT LOSSES -the termination of employment initiated through no fault of the EEs and without prejudice to the latter -resorted to by the management during periods of business recession, industrial depression or seasonal fluctuations or during lulls occasioned by lack of orders, shortage of materials, conversion of the plant for a new production program or the introduction of new materials Requirements (Lopez Sugar Corp v. Franco Doctrine (2005), supra: i. losses expected should be substantial, not merely de minimis in extent -does not include Sliding income: decreasing gross revenues. Not every asserted possibility of loss is sufficient

legal warrant for reduction of personnel San Miguel Jeepney Service v. NLRC, 265 SCRA 35 (1996) ii. substantial loss must be reasonably imminent – certain degree of urgency iii. retrenchment reasonably necessary and likely to effectively prevent expected losses

iv.

alleged losses, loss or expected, should be proven by SUFFICIENT and CONVINCING EVIDENCE: 1. audited financial statements, financial condition 2. specify cost-reduction measure actually undertaken in GF 3. audited by independent external auditors

*Temporary Retrenchment = floating status -apply by analogy A286: could only last up to 6 months -after 6 months, ER should either: i. recall the EEs to work ii. permanently retrench, following the requirements of law *Redundancy v. Retrenchment (AG&P United Rank and File Assn v. NLRC, 265 SCRA 159 (1996) Redundancy: services of an employee are in excess of what is required by an enterprise Retrenchment: resorted to primarily to avoid or minimize business losses *Closure v. Retrenchment (Alabang Country Club v. NLRC, 466 SCRA 329 (2005) Closure: reversal of fortune of ER, complete cessation of business operations, actual locking-up to prevent further financial drain Retrenchment: reduction of personnel usually due to poor financial returns; downsizing d. CLOSURE OF BUSINESS Cattista v. NLRC, 247 SCRA 46 (1995) -employer may close or cease his business operations or undertaking even if he is ot suffering from serious business losses or financial reverses AS LONG AS he pays termination pay -management prerogative -as long as in GF to advance its interest and not for the purpose of defeating or circumventing the rights of the EEs -PARTIAL CLOSURE: allowed to minimize expenses and reduce capitalization A284 Disease -EE found suffering from any disease -EE’s continued employment is prohibited by law/prejudicial to his health as well as to the health of his co-employees A286 Temporary Cessation of Operations (San Pedro Hospital of Digos v. SOLE, 263 SCRA 98 (1996) -valid exercise of management prerogative provided that it is NOT CARRIED OUT in order to circumvent the provisions of the LC or to defeat the rights of EEs under the LC -determination: management prerogative. Not required that a business continue operating at a loss simply to maintain the workers in employment, which is tantamount to taking of property without due process -should not be motivated by BF *SPECIAL CASE: Business Transfers -Transferee company not required to recognize the validity of contracts between EE and former ER (employment contracts, CBA). Sundowner Development v. Drilon, 180 SCRA 14 (1989) II. Procedural Due Process A277b.

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. 1. 2.

3. 4. 5.

ER shall furnish EE to be terminated with a written notice containing statement of causes for termination ER shall affort the EE ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires EE could contest the validity/legality of dismissal by filing a complaint with regional branch of NLRC burden of proof on ER if prima facie finding that the termination may cause a serious labor dispute or is in implementation a mass lay-off, SOLE may suspend the effects of the termination pending resolution of the dispute

*Essence of Due Process: ample opportunity to be heard and to defend himself *Right to counsel -constitutional right -contemplates right to counsel in Administrative and Quasijudicial bodies NOT during investigation of ER Salaw v. NLRC, 202 SCRA 7 (1991) *Notice requirements To EE: cannot be substituted, give some time to prepare for eventual loss of job To DOLE: enable proper authorities to determine after hearing WON the termination was done in GF + opportunity to ascertain and verify alleged cause of termination *2-notice rule 1st notice: apprises EE of particular acts or omissions for which dismissal is sought 2nd notice: informs ER’s decision to dismiss EE *Hearing -a formal/trial type of hearing is not at all times and in all instances essential to due process, requirements of which is satisfied where the parties are accorded fair and reasonable opportunity to explain side of controversy National SemiConductor Distribution Ltd v. NLRC, 291 SCRA 348 (1998) -Labor Arbiter cannot be required to hold a formal hearing. He can ask for position papers in lieu of hearings (New Rules of Procedure of NLRC, Sec. 5 Rule V) -no hearing necessary if the EE already admitted responsibility for act he was accused of Maagos v. NLRC, 300 SCRA 484 (1998) -due process not violated where a person is given the opportunity to be heard BUT chooses not to give his side of the case Caurdenetan Piece Workers Union v. Laguesma, 285 SCRA 291 (1998) *Failure of Due Process Wenphil: valid cause for dismissal – due process = valid dismissal but pay damages Serrano: valid cause for dismissal – due process = valid dismissal but pay FULL BACKWAGES Agabon: just cause – due process = ineffectual dismissal Other procedural matters: *burden of proof: on the employer *weight of evidence: substantial evidence *prescription period: based on an injury so 4 years from the time of dismissal *offer to reinstate: liability for illegal termination not abated. Wrong has been committed, harm has been done. Ranara v. NLRC, 212 SCRA 631 (1992) Santions and Remedies

*twin remedies: 1. reinstatement -restore the situation as nearly as possible to the status quo ante the unfair labor practice. -illegally dismissed EE entitled to it as a matter of right: would be granted even if EE failed to state it in his complaint General Baptist Bible College v. NLRC, 219 SCRA 549 (1993) *exceptions: i. when the former position is already occupied: reinstate EE to a substantially equivalent position without loss of seniority rights as provided for under LC IRR PNOC v. Abella, 448 SCRA 549 (2005) ii. when EE already reached retirement age at time of filing of complaint: only entitled to backwages, not separation pay Espejo v. NLRC, 255 SCRA 430 (1996) iii.strained relations doctrine: Globe Mackay v. NLRC -no strained relations: should arise from a valid and legal act of asserting one’s rights, for otherwise an employee who shall assert his or her right could be easily separated from the service by merely paying his/her separation pay on the pretext that his/her relationship with his/her ER had already become strained -strained relations: in order that order that may justify the award of separation pay in lieu of reinstatement with backwages … so compelling and so serious in character …continued employment of an EE is so obvious to the person or business of the ER …the continuation of such employment has become inconsistent with peace and tranquility which is an ideal atmosphere in every workplace *Implementation -reinstatement pending appeal: ancillary relief granted to a dismissed EE to cushion him and his family against the impact of economic dislocation or abrupt loss of income/earnings. It is immediately executory pending appeal. - Payroll reinstatement: a form of reinstatement which an employer may opt to exercise in lieu of an actual reinstatement. Here, the illegally dismissed employee is to receive his basic pay without the obligation of rendering any service to the employer. This occurs when a Labor Arbiter decides that an employee was illegally dismissed and as a consequence awards a reinstatement, pursuant to Article 279 of the Labor Code. Such award of reinstatement, according to Article 223 of the Code, is immediately executory even pending appeal. 2. backwages -generally granted on grounds of equity; payment thereof is a form of relief that restores the income lost by reason of such unlawful dismissal -not private compensation or damages: awarded in furtherance and effectuation of the public objectives of the LC -not a redress of a private right, but, rather, in the nature of a command to the ER to make public reparation for dismissing an employee, either due to the former’s unlawful act or BF St. Theresa’s School of Novaliches Foundatin v. NLRC, 289 SCRA 110 (1998) -Failure to claim: since it is a substantial right, failure to claim in the complaint is a mere procedural lapse which cannot defeat a right granted under substantive law De la Cruz v. NLRC, 299 SCRA 1 (1998) -period: computation: a. deduct from the backwages TOTAL amount of earnings obtained from other employment from date of dismissal to date of reinstatement – EEs not permitted to enrich themselves at the expense of ER b. take into account whether in the exercise of due diligence EEs might have obtained income from suitable remunerative employment

UP Portia Bar Mental Jugger Labor Standards Based on the outline of Professor D.P. Disini, Jr. c. backwages to be awarded should not be diminished or reduced by earnings derived by the illegally dismissed employees elsewhere during the term of his dismissal d. worker entitled to backwages only up to the time he reached 65 under law: only give backwages for the period he could have worked had he not been illegally dismissed Financial Assistance When allowed: where the EE is validly dismissed for causes other than those reflecting his moral character When not allowed: when dismissed for just and lawful cause, has something to do with serious misconduct on part of EE or other causes reflecting adversely on employees moral character Separation Pay -paid after terminated from work due to Authorized causes, when reinstatement no longer reasonable -not required when termination is due to closure or cessation of operation of business establishments due to losses -computation: wage = pay (includes facilities) -effect of acceptance: employee not estopped from challenging the validity of his dismissal; it doesn’t relieve the employer of legal obligation. Authorized cause (under A284) Installation of labor-saving devices Redundancy Retrenchment to prevent losses Closures or cessation of operations of establishment Undertakings not due to serious business losses or financial reverses *6 months = considered 1 year

*Separation pay At least 1 month pay or at least 1 month pay for every year of service, whichever is higher 1 month pay or at least ½ month pay for every year of service, whichever is higher

Damages MD/ED: proper where EE had been harassed and arbitrarily terminated by ER; dismissal attended by BF, constituted an act oppressive to labor -claims for damages must have reasonable causal connection with any of the claims provided for in A217(a) in order to be cognizable by the Labor arbiter -ND: granted in sound discretion of the court and relevant circumstances; given when violation of petitioner’s right to statutory due process by ER warrants payment of indemnity XV. Retirement A287 *Any employee MAY BE RETIRED upon reaching the RETIREMENT AGE ESTABLIHSED in the -CBA -other applicable employment contract *In case of retirement, the EE shall be entitled to receive such RETIREMENT BENEFITS as he may have earned under: -existing laws -any CBA -other agreementsw …Which shall not be less than what is provided *In the ABSENCE of a retirement plan or agreement providing for RETIREMENT BENEFITS: upon reaching 60-65 (compulsory retirement age) years + served at least 5yers in said establishment *If Underground mining EE: 50-60 compulsory retirement age + at least served 5 years *RETIREMENT PAY: at least ½ month salary pay for every year in service (1year=6m)

½ month salary = 15 days + 1/12 of 13th month pay + SIL cash equivalent -in retail, service, agricultural establishments/operations + no more than 10 EEs/workers = exempted from coverage Types (Gerlach v. Reuters, Ltd., 448 SCRA 335) 1. compulsory and contributory retirement 2. one setup by agreement between the ER and EEs in CBA and other agreement 3. Voluntarily given by employer -expressly: announced company policy -impliedly: failure to contest EE’s claim for retirement benefits