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Sun Tzu Notes

Sun Tzu Notes

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SUN TZU NOTES
Al L. Beronque
Employee
includes any individual employed by an employer[art 97c]
one who works for an employer, a person workingfor salary or wages; any person in the service of another under a contract for hire, express orimplied, oral or written [alcantara].
always a natural person [may include Filipinocitizens and foreigners]
Employer-Employee Relationship
it is in personam, involves the rendition of personal service by the employee, and partakesof master and servant relationship.
contractual in character, it arises from theagreement of the parties.
Four-Fold Test
1.The selection and engagement of the employee.2.The payment of wages or salaries for services.3.The power of dismissal or to impose disciplinaryactions.
4.
The employer’s power to control the employeewith respect to the means and methods by whichthe work is to be accomplished. This is alsoknown as the “control test”.Control Test
the most important element
that is, whether the employer controls or hasreserved the right to control the employee notonly as to the result of the work to be done butalso as to the means and methods by which thesame is to be accomplished [investment planningcorp v. sss 11/18/67]
Q:
Why is it important to determine whether therelationship between the parties is that of employerand employee or that of principal and independentcontractor or of principal-agent?
A:
To determine what laws will govern the rightsand liabilities of the parties, and what tribunal orcourt will have jurisdiction over their disputes.
RelationshipGoverningLawsTribunal
Employer-EmployeeLabor lawsLabor tribunalPrincipal-IndependentContractorobligationsand Contracts[CC]Regular courtsPrincipal-AgentCivil CodeRegular courts 
Employer-Employee vs. Principal-Agent
Employer-Employee relationship is governed by the LaborCode whereas Principal-Agent relationship is by Civil Code.
Principal-Agent RelationshipArt 1868 CC:
By the contract of agency, a person bindshimself to render some service or to do something inrepresentation or on behalf of another, with the consent orauthority of the latter. 
It is the principal who selects the agent
An agent is compensated under the contract of agency forservices rendered.
An agent is disciplined by the principal because former isunder the authority of the latter.
The principal controls the means and methods of the workof an agent.[Relate above to the four-fold test]
There is only one party in a principal-agent relationship,the agent is merely an extension of the principal. They areregarded as one. So if there is a contractor relationship, itis not between 3 parties but is between the principal orthe agent as an extension of the principal and the otherparty.
Note:
To make a distinction between a principal-agentrelationship and that of an employer-employee relationship,the four-fold test will not be used because the 1) agent isselected by the principal 2) compensated by the principal 3)and most oftentimes, the principal also substitutes his own judgment for that of the agent.
Employer-Employee vs. Principal-ContractorContractor:
carries on a distinct and independent business andundertakes to perform the job, work or service on its ownaccount and under its own responsibility, according to itsown manner and method, and free from the control anddirection of the principal in all matters connected with theperformance of the work except as to the results thereof [DO 9].
Maybe an individual, corporate or juridical contractor
Principal-Contractor Relationship
principal selects the contractor
contractor is compensated for services rendered.
The contractor is
not
under the discipline of the principal.
the contractor is
not
under the control of the principal.The definition says that aside from engaging in a businessseparately distinct from the principal, to perform job, workor service, according to his own means and methods, freefrom control and direction of the principal except as to theresults thereof.[relate above with four-fold test]
this relationship exists also in situations under art 106-109 LC.
If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle – SUN TZU 
Page 1 of 28 
 
SUN TZU NOTES
Al L. Beronque
3. RIGHT TO HIRERight or Prerogative?
Strictly speaking, the employer has no right tohire a person as his employee. The matter of selecting a person as one’s employee is moreappropriately described as a prerogative. It isnot a right in which you can go to court andenforce the right to hire a person, otherwise itwill violate the constitutional provision againstinvoluntary servitude, if one is compelled to beanother’s employee. No person can be compelledagainst his will to do an act whether legal orillegal. Thus, an employer cannot go to court andget an injunction to compel a person to becomehis employee. If at all, the employee can onlyexercise the prerogative to invite that person andto hire him if he so desires. In that sense, theright to hire is essentially a
managementprerogative.Management Prerogative
An act of the employer according to his own judgment or discretion to regulate his business.This includes hiring, transfer, dismissal, etc.
Exercise of Right or Prerogative Absolute?
No, it is regulated by law.
Legal Limitations/Prohibitions Prior to HiringA. Under the Labor Code1. Prohibition on Stipulation Against MarriageArt 136.
 
Stipulation against marriage
. 
- It shallbe unlawful for an employer to require as a conditionof employment or continuation of employment that awoman employee shall not get married, or tostipulate expressly or tacitly that upon gettingmarried, a woman employee shall be deemedresigned or separated, or to actually dismiss,discharge, discriminate or otherwise prejudice awoman employee merely by reason of her marriage.
Marquez:
It prohibits the employer from imposingas a condition of employment that a womanemployee shall not get married.
Applies to women in ordinary and specialoccupations
It assaults good morals and public policy, tendingto deprive a woman of freedom to choose herstatus, a privilege that by all accounts inheres inthe individual as an intangible and inalienableright [pt&t v. nlrc 272 scra 596]
2. Minimum Employable AgeART. 139.
 
Minimum employable age
. 
- (a) No child belowfifteen (15) years of age shall be employed, except when heworks directly under the sole responsibility of his parents orguardian, and his employment does not in any way interferewith his schooling.
[see RA 7610 as amended]
(b) Any person between fifteen (15) and eighteen (18) yearsof age may be employed for such number of hours and suchperiods of the day as determined by the Secretary of Laborand Employment in appropriate regulations.(c) The foregoing provisions shall in no case allow theemployment of a person below eighteen (18) years of age inan undertaking which is hazardous or deleterious in nature asdetermined by the Secretary of Labor and Employment.
3. ART. 248.
Unfair labor practices of employers
.
- Itshall be unlawful for an employer to commit any of thefollowing unfair labor practice:(b) To require as a condition of employment that a person oran employee shall not join a labor organization or shallwithdraw from one to which he belongs
[yellow dogcontract]B. Under Special Laws1. REPUBLIC ACT NO. 7610[Special Protection Against Child Abuse, Exploitationand Discrimination Act]
 
Amended Art 139
Subsequently amended by RA 7658 & 9231
RA 9231 is implemented by DO 65-04
Sec. 12
.
Employment of Children
.
– Children below fifteen(15) years of age may be employed except:(1) When a child works directly under the sole responsibilityof his parents or legal guardian and where only members of the employer’s family are employed:
Provided, however,
Thathis employment neither endangers his life, safety and healthand morals, nor impairs his normal development:
Provided,further,
That the parent or legal guardian shall provide thesaid minor child with the prescribed primary and/or secondaryeducation; or(2) When a child’s employment or participation in public & entertainment or information through cinema, theater, radioor television is essential:
Provided 
, The employment contractconcluded by the child’s parent or guardian, with the expressagreement of the child concerned, if possible, and theapproval of the Department of Labor and Employment:
Provided,
That the following requirements in all instances arestrictly complied with:(a) The employer shall ensure the protection, health, safetyand morals of the child;(b) the employer shall institute measures to prevent thechild’s exploitation or discrimination taking into account the
If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle – SUN TZU 
Page 2 of 28 
 
SUN TZU NOTES
Al L. Beronque
system and level of remuneration, and the durationand arrangement of working time; and© The employer shall formulate and implement,subject to the approval and supervision of competentauthorities, a continuing program for training andskill acquisition of the child.In the above exceptional cases where any such childmay be employed, the employer shall first secure,before engaging such child, a work permit from theDepartment of Labor and Employment which shallensure observance of the above requirement.The Department of Labor and Employment shallpromulgate rules and regulations necessary for theeffective implementation of this Section.
Sec. 14.
Prohibition on the Employment of Children in Certain Advertisements.
– No personshall employ child models in all commercials oradvertisements promoting alcoholic beverages,intoxicating drinks, tobacco and its byproducts andviolence.
RA 7610 amended art 139 LC
REPUBLIC ACT NO. 7658
An act prohibiting the employment of children below15 years of age in public and private undertakings,
amending for this purpose section 12, articleviii of r. a. 7610.
“Sec. 12. Employment of Children
. — Childrenbelow fifteen (15) years of age shall not be employedexcept:(1) When a child works directly under the soleresponsibility of his parents or legal guardian andwhere only members of the employer’s family areemployed:
Provided, however,
That his employmentneither endangers his life, safety, health and morals,nor impairs his normal development;
Provided,further,
That the parent or legal guardian shallprovide the said minor child with the prescribedprimary and/or secondary education; or(2) Where a child’s employment or participationin public entertainment or information throughcinema, theater, radio or television is essential:
Provided,
The employment contract is concluded bythe child’s parents or legal guardian, with theexpress agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and
Provided 
, That thefollowing requirements in all instances are strictlycomplied with:(a) The employer shall ensure the protection, health,safety, morals and normal development of the child;(b) The employer shall institute measures to prevent thechild’s exploitation or discrimination taking into account thesystem and level of remuneration, and the duration andarrangement of working time; and© The employer shall formulate and implement, subjectto the approval and supervision of competent authorities, acontinuing program for training and skills acquisition of thechild.In the above exceptional cases where any such child may beemployed, the employer shall first secure, before engagingsuch child, a work permit from the Department of Labor andEmployment which shall ensure observance of the aboverequirements.The Department of Labor and Employment shall promulgaterules and regulations necessary for the effectiveimplementation of this Section.” 
REPUBLIC ACT NO. 9231
An act providing for the elimination of the worst forms of childlabor and affording stronger protection for the working child,
amending
 
 Section 1. Section 2 of Republic Act No. 7610, as amended, otherwise known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act” , ishereby amended to read as follows:Sec. 2. Section 12 of thesame Act, as amended,is hereby further amended to read as follows: “
Sec. 2. Employment of Children
– Children below fifteen(15) years of age shall not be employed except: “1) When a child works directly under the sole responsibilityof his/her parents or legal guardian and where only membersof his/her family are employed: Provided, however, Thathis/her employment neither endangers his/her life, safety,health, and morals, nor impairs his/her normal development:Provided, further, That the parent or legal guardian shallprovide the said child with the prescribed primary and/orsecondary education; or “2) Where a child’s employment or participation in publicentertainment or information through cinema, theater, radio,television or other forms of media is essential: Provided, Thatthe employment contract is concluded by the child’s parentsor legal guardian, with the express agreement of the childconcerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the followingrequirements in all instances are strictly complied with: “(a) The employer shall ensure the protection, health, safety,morals and normal development of the child; “(b) The employer shall institute measures to prevent thechild’s exploitation or discrimination taking into account the
If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle – SUN TZU 
Page 3 of 28 

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