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GERMONES LLB 2 DISCLAIMER: COMMENTS AT HAND WERE NOT INTENTIONALLY INSERTED TO OFFEND, DISHONOR OR DISRESPECT ANY PERSON. PLEASE BEAR WITH THE GRAMMAR AND SENTENCE CONSTRUCTION DUE TO INADEQUATE TIME FOR EDITING. FEEL FREE TO INSERT YOUR CORRECTIONS. SHOULD THERE BE ANY DOUBT ON THE INFORMATIONS SUPPLIED PLEASE DO NOT RELY SOLELY ON THIS NOTE ON ACCOUNT THAT MINIMAL INACCURACIES MAY EXIST. GOODLUCK AND HAPPY READING! ***(this mark appears on some of the questions just to note that Marquez emphasized the question during orals & might be a possible question in the exam) THE 2011 NLRC RULES OF PROCEDURE: 30% IN THE FINAL EXAMINATION EX: I AM AN EMPLOYEEE OF USC. I WAS NOT PAID MY 13TH MONTH PAY AMOUNTING TO 15K, I WANT TO SUE USC, WHO HAS A JURISDICTION OF MY CASE? ANS: LABOR ARBITER. WHERE IS THE VENUE OF MY COMPLAINT? ANS: REGIONAL ARBITRATION BRANCH OF NLRC IN CEBU CITY, BECAUSE YOUR WORKPLACE IS IN CEBU CITY. REMEMBER: VENUE IS DEFINED BY RULES OF PROCEDURE OF NLRC NOT BY LAW WHILE JURISDICTION IS DEFINED BY THE LABOR CODE/LAW. WHAT ABOUT VENUE OF CLAIMS OF OVERSEAS WORKERS? ANS: AT THE CHOICE OF THE COMPLAINANT EITHER AT THE PLACE WHERE HE RESIDES OR THE PRINCIPAL OFFICE OF THE AGENCY. ***IF YOU FILE A COMPLAINT FOR VIOLATION OF LABOR STANDARDS, DO YOU NEED TO PAY A DOCKET FEE? ANS: NO, IT IS PROHIBITED UNDER THE LABOR CODE.
WHAT IS YOUR BASIS? ART 277(D) OF LABOR CODE: ―NO DOCKET FEE SHALL BE ASSESSED IN LABOR STANDARD DISPUTES. IN ALL OTHER DISPUTES, DOCKET FEES MAY BE ASSESSED AGAINST THE FILING PARTY, PROVIDED THAT IN BARGAINING DEADLOCK, SUCH FEES SHALL BE SHARED EQUALLY BY THE NEGOTIATING PARTIES.‖ WHAT IS THE PURPOSE OF A SUMMON? ANS: TO ACQUIRE JURISDICTION OVER THE PERSON OF THE RESPONDENT. HOW DOES THE COURT ACQUIRE JURISDICTION OVER THE PETITIONER/COMPLAINANT? ANS: PETITIONER HAS ALREADY DEEMED SUBMITTED HIMSELF TO THE JURISDICTION OF THE LABOR ARBITER BY FILING A COMPLAINT. HOW MANY INITIAL CONFERENCES ARE AUTHORIZED UNDER THE RULES OF PROCEDURE? ANS: TWO (2) SETTINGS WHAT IS THE PURPOSE OF CONDUCTING AN INITIAL HEARING / MANDATORY CONFERENCE? The Labor Arbiter shall personally preside over & take full control of the proceedings & may be assisted by the Labor Arbitration Associate. ARA - DAT 1. To amicably settle the case upon a fair compromise; 2. To determine real parties in interest; 3. To determine the necessity of amending the complaint & including all causes of action; 4. To define & simplify the issues in the case; 5. To enter into admissions or stipulations of facts 6. To thresh out all other preliminary matters WHAT LAW AUTHORIZES COMPROMISE AGREEMENT? ANS: NEW CIVIL CODE. ART 2028. REMEMBER: NOT LC DOES THE COMPROMISE AGREEMENT REQUIRE APPROVAL FROM THE LABOR ARBITER? ANS: YES. WHAT IS THE EFFECT OF A COMPROMISE AGREEMENT? ONCE APPROVED BY THE LABOR ARBITER, IT IS CALLED A JUDGMENT BASED ON COMPROMISE & IT BECOMES FINAL &
EXECUTORY. IN CASE OF BREACH OF COMPROMISE AGREEMENT WHAT IS THE REMEDY BY THE AGGRIEVED PARTY? ANS: FILE A MOTION TO ENFORCE THE COMPROMISE AGREEMENT. WHAT ARE THE GROUNDS TO DISMISS A COMPLAINT? ANS: Lack of jurisdiction over the subject matter, improper venue, res judicata, prescription & forum shopping. (LIR-PF) WHAT IS FORUM SHOPPING? INITIATING COMPLAINTS IN DIFFERENT TRIBUNALS INVOKING THE SAME CAUSE OF ACTION, SUBJECT MATTER & ISSUES IN THE HOPE ACQUIRING A FAVORABLE DECISION.. WHAT IS A CERTIFICATE OF NON FORUM SHOPPING? The Certificate of Non-Forum Shopping as provided by Supreme Court Circular 04-94 is mandatory and should accompany pleadings filed before the NLRC. Since the NLRC is a quasi judicial agency hence initiatory pleading filed before it should be accompanied by a certificate of non-forum shopping. Such certification should be signed not by the lawyer but by the party. Except if you are the in-house lawyer of such company.
WHAT IS RES JUDICATA? ANS: BARRED BY PRIOR JUDGMENT. IF THE COMPLAINT IS DISMISSED BY THE LABOR ARBITER, CAN YOU FILE A MOTION FOR RECONSIDERATION? ANS: I CANNOT FILE A MFR OR EVEN MAKE AN APPEAL BEC IT IS PROHIBITED. HOW ABOUT A MOTION FOR POSTPONEMENT? ANS: IT IS ALLOWED BUT MUST BE FILED ATLEAST 3 DAYS BEFORE MEDIATION. WHY? BEC LABOR ARBITER EXPECTS THE PARTIES TO BE PRESENT ON THE PRESCRIBED SCHEDULE. WHAT IS THE EFFECT OF NON APPEARANCE OF
COMPLAINANT IN TWO (2) SETTINGS OF INITIAL HEARING? ANS: IT WILL RESULT TO DISMISSAL OF THE COMPLAINT BY THE LABOR ARBITER. CAN THE COMPLAINANT FILE A MOTION FOR RECONSIDERATION IF THE COMPLAINT WAS DISMISSED DUE TO NON APPEARANCE? ANS: NO. IT IS PROHIBITED. WHAT IS THE REMEDY? ANS: FILE A MOTION TO REOPEN/REVIVE THE CASE ANY TIME. WHAT IS THE PRESCRIPTIVE PERIOD FOR MONEY CLAIMS? ANS: THREE (3) YRS FROM THE TIME THE CAUSE OF ACTION ACCRUES. IF THE RESPONDENT FAILED TO APPEAR IN TWO (2) SETTINGS, WHAT IS THE EFFECT OF NON APPEARANCE? ANS: IT IS DEEMED A WAIVER OF HIS RIGHT TO FILE A POSITION PAPER. WHAT IS THE REMEDY OF RESPONDENT? ANS: HE CAN FILE A MOTION TO SET ASIDE THE ORDER OF WAIVER AND MUST BE MADE UNDER OATH. A PARTY DECLARED TO HAVE WAIVED HIS / HER RIGHT TO FILE A POSITION PAPER MAY AT ANYTIME AFTER NOTICE THEREOF AND BEFORE THE CASE IS SUBMITTED FOR DECISION FILE A MOTION UNDER OATH TO SET ASIDE THE ORDER OF WAIVER UPON PROPER SHOWING THAT HIS/HER FAILURE TO APPEAR WAS DUE TO JUSTIFIABLE AND MERITORIOUS GROUNDS. ***WHO MUST PRESIDE THE INITIAL HEARING? ANS: THE LABOR ARBITER. CAN HE DELEGATE IT? NO. THE LABOR ARBITER MUST PERSONALLY PRESIDE. WHEN CAN A COMPLAINANT AMEND HIS COMPLAINT AS A MATTER OF RIGHT? ANS: BEFORE THE COMPLAINANT FILES HIS POSITION PAPER. THIS CAN BE DONE EVEN WITHOUT PERMISSION FROM THE LABOR ARBITER.
WHAT IS THE PERIOD TO FILE A POSITION PAPER? ANS: TEN (10) CALENDAR DAYS FROM TERMINATION OF CONCILIATION-MEDIATION HEARING. WHAT ARE THE CONTENTS OF A POSITION PAPER? Contents of position paper: ~ SECTION 4 RULE 7, Civil Procedure, as amended by Administrative Matter 00-2-10, May 1, 2000 provides that the affiant has read the pleading and that the allegations therein are true and correct according to his personal knowledge and based on authentic records. ~ Verification is important because the case may be decided based on position papers alone without need of conducting formal hearings. Violation of this requirement would either mean that such pleading would be expunged from the records and the party concerned subjected to sanctions. ~ Position papers should also be accompanied by affidavit of the witnesses which shall take place of the latter‘s testimony. (RULE V SECTION 3)
Purpose of affidavit ~ To take the place of the witnesses‘ direct testimony. ~ Support allegations in the position paper. If the LA decides to conduct hearing, there would be no need of direct examination or Q&A because the position paper would take the place of the direct testimony of the witness. The only requirement would be for the affiant to identify the affidavit and to offer the testimony of the witness. And thereupon, proceed to the cross-examination of such witness.
DOES THE POSITION PAPER NEED TO CONTAIN A CERTIFICATE OF NON FORUM SHOPPING? NO. DOES IT NEED TO BE VERIFIED. ANS: YES. Verification is important because the case may be decided based on position papers alone without need of conducting formal hearings. Violation of this requirement would either mean that such
pleading would be expunged from the records and the party concerned subjected to sanctions. WHEN DO YOU SUBMIT YOUR REPLY POSITION PAPER? ANS: Within 10 CALENDAR days from receipt of position paper of the adverse party a reply may be filed on a date agreed upon & during the schedule set before the Labor Artbiter. WHAT ARE THE CONTENTS OF A REPLY POSITION PAPER? ANS: IT SHALL NOT ALLEGE OR PROVE FACTS AND ANY CAUSES OF ACTION NOT INCLUDED IN THE ORIGINAL COMPLAINT OR PETITION OR RAISED IN THE POSITION PAPER. AFTER FILING OF THE POSITION PAPER DOES THE LABOR ARBITER NEED TO CONDUCT FORMAL HEARING OR JUST DECIDE THE CASE? ANS: HE MAY MOTU PROPIO DECIDE THE CASE IN HIS OWN DISCRETION. IF IN CLARIFICATORY HEARING ONE OF THE PARTIES DID NOT APPEAR, WHAT IS THE EFFECT? ANS: PROCEEDINGS MAY BE CONDUCTED EX PARTE. IN AN ADVERSE DECISION FROM THE LABOR ARBITER, DOES THE AGGRIEVED PARTY HAVE A REMEDY? YES. APPEAL TO NLRC. WHEN CAN YOU MAKE AN APPEAL TO NLRC? ANS: WITHIN 10 CALENDAR DAYS FROM RECEIPT OF THE ORDER OF LABOR ARBITER. IF THE ORDER IS FROM THE REGIONAL DIRECTOR I CAN APPEAL WITHIN 5 CALENDAR DAYS. What are the other requirements to perfect appeal? 1. Proof of payment of appeal fee. 2. Under oath 3. Filed on time 4. File a memorandum of appeal containing: Grounds relied upon and arguments in support thereof. Relief prayed for. Statement of date when decision was received.
Proof of service to other party.
Appeal fee is jurisdictional. ~ Marquez comments that docket fee and appeal fee are not the same! HOW IS THE APPEAL PERFECTED IN MONETARY AWARD? ANS: BY POSTING OF A CASH OR SURETY BOND EQUIVALENT TO THE AMOUNT APPEALED FROM. THE CASH OR SURETY BOND EXCLUDES DAMAGES & ATTORNEY‟S FEES. DO YOU NEED TO PAY AN APPEAL FEE? ANS: YES. IT IS NOT THE SAME AS DOCKET FEE. IS THERE A NEED FOR A MEMORANDUM? YES. STATING 3P‘S. A MERE NOTICE OF APPEAL IS NOT SUFFICIENT. REQUISITES TO PERFECT APPEAL 1. The appeal shall be: WV-MCA 2. Filed within the reglementary period provided in section 1 of this Rule; 3. Verified by the appellant himself 4. In the form of a memorandum of appeal which: GRD 1. state the grounds relied upon & the arguments in support thereof; 2. the relief prayed for 3. date of the appellant appealed decision, award or order; 5. In three legibly typewritten & printed copies; 6. Accompanied by: 3P‘S 1. Proof of payment of the required appeal fee & legal research fee 2. Posting of a cash or surety bond; 3. Proof of service upon the other parties
DOES A MEMORANDUM NEED TO HAVE A CERTIFICATE AGAINST FORUM SHOPPING? YES. DOES A MEMORANDUM HAVE TO BE TAKEN UNDER OATH? YES.
SHOULD A COPY OF THE APPEAL BE SERVED TO THE ADVERSE PARTY? YES. IF THE 10TH DAY TO FILE AN APPEAL FALLS ON A HOLIDAY OR WEEKEND, WHAT IS THE REMEDY? ANS: IT CAN BE FILED THE NEXT WORKING DAY BECAUSE THE LAW SPEAKS OF 10 CALENDAR DAYS. WHAT IS MEANT BY 10 CALENDAR DAYS? ANS: 10 CALENDAR DAYS INCLUDES SAT SUN & HOLIDAY. ***IF YOU FILE AN APPEAL BEYOND THE 10 DAY PERIOD, WHAT IS THE EFFECT ON THE DECISION OF THE LABOR ARBITER? ANS: IT BECOMES FINAL & EXECUTORY & CANNOT BE REVERSED BECAUSE OF THE DOCTRINE ON “IMMUTABILITY OF JUDGMENT”. HOW MUCH IS THE APPEAL FEE NOW? ANS: P500.OO. ~ Is it possible to file a Motion to Reduce Bond? ~ Yes, see Rule 6, Section 6. However, you must file it within the reglementary period to appeal and the act of filing does not stop the running of the period to appeal. Note that the appeal is perfected once a bond is filed. ~ Once the bond has been reduced, the employer cannot file a Motion for Reconsideration as this would amount to an extension of the period to perfect an appeal. ~ If the NLRC has the authority to entertain a motion to reduce bond, then it can also grant extension to file bond. We, therefore, rule that for petitioner's failure to post the required bond within the reglementary period after it has been ordered reduced, the NLRC committed no grave abuse of discretion in dismissing petitioner's appeal.
The NLRC may grant or dismiss the appeal. Can the aggrieved party file a motion for reconsideration?
YES. It must be filed within 10 calendar days from receipt of the dismissal of the appeal. What if the Motion for Reconsideration is denied? The decision will become final and executory.
If there is no Motion for Reconsideration filed before the NLRC, the decision becomes final and executory and therefore there is no way by which another government body can review the case; the only remedy is a motion for reconsideration. If the decision of the NLRC becomes final and executory due to the denial of the MFR, is there an appeal of the decision of the NLRC? NO. There is no appeal from the decision of the NLRC but there is still a remedy under RULE 65 of the Rules of Court on the ground of grave abuse of discretion. The ground of prima facie evidence of abuse of discretion is a ground for appealing the decision of the LA to the NLRC. Will the filing of a Petition for Certiorari stay the decision of the NLRC? NO. However, to enjoin enforcement of the decision of the NLRC which is final and executory, under Rule 65, you have to apply for the issuance of a TRO and eventually a writ of injunction. There is no way of preventing the decision of the NLRC from becoming final and executory except by the filing of MOTION FOR RECONSIDERATION within the prescribed period of 10 days. Since the motion for reconsideration has been denied, the decision will have to become final and executory and subject to execution. There is no more appeal from that decision but there is a Special Civil Action [Certiorari] on the ground of grave abuse of discretion. To prevent execution of the decision, the aggrieved party can apply for the issuance of a Temporary Restraining Order. If you apply for a TRO, for how many days will it be valid? 60 days. If issued by RTC, 20 days. Can it be extended?
NO. ~ Note that a Special Civil Action is an original action and the RTC, CA and SC have concurrent and original jurisdiction. However, always follow the principle of HIERARCHY OF COURTS. At this stage where the NLRC decision is the subject of the certiorari, the RTC does not have jurisdiction because the RTC is of the same level as the NLRC and the LA is of the same level as the lower courts. From the CA, is there still a Motion For Reconsideration? YES. To be filed within 15 days, which the CA may either grant or deny. From the CA, is there a remedy? YES. Appeal by Certiorari under Rules 45 of the Rules of Court to be filed within 15 days from receipt of the decision of the CA on the ground of pure questions of law. If is involves the application of the rules or the law, it is a ―question of law‖. ~ The SC is not a trier of facts but factual findings of the SC may be reviewed in exceptional cases. Will the Appeal by Certiorari under Rule 45 prevent the decision of the CA from becoming final and executory? It will become final and executory. But if you file an appeal by certiorari under Rule 45 within the prescribed period, the decision of the CA will be stayed. NLRC: COMPOSITION (RA 9347 AMENDING ART 212 TO 216, RATIONALIZING THE COMPOSITION & FUNCTION OF THE NLRC EFFECTIVE AUG. 26, 2006 The Commission shall be composed of a Chairman & 23 Commissioners. COMMISSION EN BANC: The Commission shall sit en banc only for purposes of: 1. promulgating rules & regulations governing the hearing & disposition of cases before its Divisions & Regional Arbitration Branches and 2. formulation of policies affecting its administration & operations. It may, on temporary or emergency basis, allow cases within the
jurisdiction of any division to be heard by any other division whose docket allows the additional workload and such transfer will not expose litigants unnecessary additional expense. The Chairman shall call the Commission to an en banc session atleast twice a year preferably on the 1st week of June & 1st week of December, to deliberate & decide on any matter before it. However, a majority of all the members of the Commission may call a Special en banc session to discuss & decide on urgent & important matters which need immediate action. DIVISIONS: The Commission shall exercise its adjudicatory and all other powers, functions & duties through its 8 division. Each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the worker & employees sectors, respectively. Of the 8 Divisions, the first, second, third, fourth, fifth & sixth divisions shall have exclusive territorial jurisdiction over appealed cases coming from Luzon; the seventh Division appealed cases from the Visayas Region; and the eight Division appealed cases from Mindanao including those from ARMM. The Chairman of the Commission may convene & preside over the session of any Division to consider any case pending before it and participate in its deliberations, if in his/her judgement his/her presence therein will best serve the interest of labor justice. He/ She shall not however participate in the voting by the Division, except when he/she is acting as presiding commissioner of the Division in the absence of the regular Presiding Commissioner. CHAIRMAN – Shall preside over all sessions of the Commission en banc. He is the Presiding Commissioner of the First Division. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the Second Division shall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission shall have administrative supervision over the Commission & its Regional
Arbitration Branches and all its personnel including the Executive Labor Arbiters & Labor Arbiters.
FINALITY OF THE DECISIONS, ORDERS, RESOLUTIONS OF NLRC 1. Except as provided in Sec 9 of Rule X, the decisions, resolutions or orders of the Commission shall become final & executory after 10 calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative. RULE X SEC 9: EFFECTS OF DEFIANCE – The order or resolution enjoining the performance of illegal acts shall be immediately executory in accordance with the terms thereof. In case of non compliance, the Commission shall impose such sanction and shall issue such orders as may be necessary to implement the said order or resolution, including the enlistment of law enforcement agencies having jurisdiction of the area for the purpose of enforcing the same. 1. ENTRY OF JUDGMENT – Upon the expiration of 10 calendar days period, the decision, resolution or order shall be entered in the book of entries of judgment.
In the absence of return cards, certifications from the post office or the courier or other proofs of service to the parties, the Executive Clerk or Deputy Executive Clerk shall consider the decision, resolution or order as final & executor after 60calendar days from the date of mailing. LABOR ARBITER‟S DECISION In the resolution of cases on appeal, the Commission in the exigency of the service shall be assisted by a Labor Arbiter who may be directed to study, review, hear & receive evidence & submit reports thereon. CONTRACTING ARRANGEMENT: 20% IN THE FINAL EXAM WHAT IS LABOR CONTRACTING? ANS: COMPLETION OR PERFORMANCE OF A JOB, WORK, OR SERVICE WITHIN A GIVEN PERIOD. COULD BE EITHER A JOB
CONTRACTING OR LABOR ONLY CONTRACTING. ***WHERE IS IT FOUND? ANS: IT IS FOUND IN THE IMPLEMENTING RULES & REGULATIONS OF NLRC. WHAT LAW GOVERNS LABOR CONTRACTING? ANS: IT IS GOVERNED BY LABOR CODE ART 106-109 NOTE: THE DEPARTMENT ORDER NO 14 APPLIES TO SECURITY GUARDS AND CONSISTENT W/ DEPARTMENT ORDER NO O18-0 BUT THE LATTER DID NOT SUPERSEDE DO 14 INSOFAR AS SECURITY GUARDS ARE CONCERNED. WHAT IS A TRILATERAL RELATIONSHIP? ANS: In legitimate contracting, there exists a trilateral relationship under which there is a contract for a specific job, work or service between the principal and the contractor or subcontractor, and a contract of employment between the contractor or subcontractor and its workers. ▪ The principal, which decides to farm out a job or service to a subcontractor ▪ The subcontractor, which has the capacity to independently undertake the performance of the job or service; and ▪ The employees engaged by the subcontractor to accomplish the job or service
IS THERE A CONTRACTUAL RELATIONSHIP BETWEEN A PRINCIPAL & SUBCONTRACTOR? YES. REMEMBER: IN CONTRACTING ARRANGEMENT- THE SUBJECT MATTER IS PERFORMANCE OF WORK, JOB OR SERVICE. NOT JUST ANY SERVICE BUT A SPECIFIC SERVICE, JOB OR WORK. EXAMPLES OF SPECIFIC JOB, WORK/SERVICE: JANITORS, SECURITY GUARDS. ***EXAMPLE: IF USC HIRED SERVICES OF A SECURITY AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL, IS THAT A CONTRACTING ARRANGEMENT? YES. BECAUSE
USC DECIDED NOT TO HIRE SECURITY GUARDS DIRECTLY, INSTEAD, THEY HIRED THE SERVICES OF AN AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL. WHY IS IT THAT EMPLOYERS ENGAGE IN CONTRACTING ARRANGEMENT RATHER THAN DIRECT HIRING? ANS: BECAUSE OF THE EXPERTISE & EXPERIENCE OF THE AGENCIES & ALSO FOR REASONS OF ECONOMY ( REDUCING COST FOR TRAININGS ETC). IS A CONTRACTING ARRANGEMENT THE SAME AS RECRUITMENT & PLACEMENT? ANS: NO. THE RULES IN CONTRACTING ARRANGEMENT EXCLUDE RECRUITMENT & PLACEMENT. WHO MAY APPLY/REGISTER AS A CONTRACTOR? ANS: ANY PERSON (WHETHER NATURAL OR JURIDICAL INCLUDING UNIONS) AS LONG AS IT COMPLIES WITH THE REQUIREMENTS. WHO ARE THE TWO (2) TYPES OF EMPLOYERS IN CONTRACTING ARRANGEMENT? 1. DIRECT EMPLOYER – E.G. SECURITY AGENCY OF SECUIRTY GUARDS OR ANY PERSON WHO HAVE PERSONS IN ITS EMPLOY. USC IS A DIRECT EMPLOYER REGARDING ITS TEACHERS. 2. INDIRECT EMPLOYER – KNOWN AS STATUTORY EMPLOYER. USC AS TO SEC GUARDS OF SECURITY AGENCY. ***THEREFORE, IF JOHN HAS NO EMPLOYEES & HIRES SERVICES OF A BLDG CONTRACTOR AND THE BLDG CONTRACTOR ALSO HIRES CONSTRUCTION WORKERS. IS JOHN A DIRECT EMPLOYER? ANS: NO. BEC HE HAVE NO EMPLOYEES OF HIS OWN. SO, WHAT IS JOHN‘S RELATION TO THE CONSTRUCTION WORKERS? HE IS AN INDIRECT EMPLOYER. WHAT IF THE CONTRUCTION WORKERS HIRED BY THE BLDG CONTRACTOR WERE NOT PAID THEIR WAGES? ANS: JOHN‟S LIABILITY IS THAT OF A DIRECT EMPLOYER. HE
IS JOINTLY AND SEVERALLY LIABLE WITH THE CONTRACTOR. The principal has limited liability. Should the contractor fail to pay the wages, the principal is liable only to the extent of the work performed and only with respect to the payment of wages The principal is jointly and severally liable with the subcontractor for payment of all employees‘ wages to the extent of the work performed under the contract IS LABOR CONTRACTING ILLEGAL PER SE? ANS: LABOR CONTRACTING IS NOT ILLEGAL PER SE ONLY WHEN IT IS LABOR ONLY CONTRACTING THAT IT BECOMES ILLEGAL. ***WHAT ARE THE THREE (3) CONDITIONS OF A LEGAL CONTRACTOR? TEST OF LEGITIMATE CONTRACTOR: 1ST CONDITION: THE PRINCIPAL CANNOT CONTROL ALL MATTERS CONNECTED W/ THE EXPERTISE OF THE EMPLOYEE OR ITS PERFORMANCE FOR THE CONDITION TO BE SUFFICIENT EXCEPT AS TO THE RESULTS THEREOF. IN THE 1ST PLACE THE PRINCIPAL HAS NO EXPERTISE ON THE SERVICES OF SECURITY GUARD. 2ND CONDITION: IT HAS A SUBSTANTIAL CAPITAL OR INVESTMENT. IT PROVIDES ADEQUATE RESOURCES OR EQUIPMENTS TO EMPLOYEES. (GUNS, UNIFORMS,ACCESSORIES ETC) 3RD CONDITION: THERE IS AN AGREEMENT BETWEEN THE PRINCIPAL & THE CONTRACTOR ▪ The following are requisites of a LEGITIMATE contracting or subcontracting: ▪ The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility; according to its own manner and method, and free from the control and directions of the principal in all matters connected with the performance of the work, except as to the results thereof; (NO EE-ER relations exists)
▪ ▪ ▪ ▪ ▪ ▪
The contractor or subcontractor has substantial capital or investment shown by: Adequacy of resources actually and directly used May refer to subscribed capital stocks for corporations Tools, equipments, implements, machineries, uniforms, protective gear or safety devises Operating costs such as training and overhead costs The agreement between the principal and contractor or subcontractor assures the contractual employees to entitlement to all labor and occupational safety standards, free exercise of the right to selforganization, security of tenure, and social welfare benefits
FROM THE EXAMPLE GIVEN: USC HAS THE OBLIGATION TO PAY THE SECURITY AGENCY FOR THE PAYMENT OF SECURITY SERVICES. IN RETURN, THE SECURITY AGENCY HAS THE OBLIGATION TO USC TO PERFORM THE SERVICES. WHAT IF USC DEFAULTS THE PAYMENT OF SERVICES OF SECURITY AGENCY, IS THERE A CAUSE OF ACTION. ANS: YES DUE TO BREACH OF DUTY. WHAT IS THE ACTION? FILE A CIVIL DISPUTE (NOTE: IT MUST BE RAISED IN A REGULAR COURT) ***WHAT IS THE OBLIGATION OF USC TO THE SECURITY GUARDS: 1. AS AN INDIRECT EMPLOYER - THERE IS A LIABLITY OF USC IF THE SECURITY AGENCY DEFAULTS ITS PAYMENT OF WAGES ONLY TO THE EXTENT OF WORK PERFORMED BY THE SECURITY GUARDS. 2. AS A PRINCIPAL – AS A RULE, USC AS AN INDIRECT EMPLOYER OF SECURITY GUARDS HAS NO OBLIGATION TO THEM. BUT, IN CASE THE SECURITY AGENCY DEFAULTED PAYMENT OF SALARY OF THE SECURITY GUARDS, THEN, THE PRINCIPAL(USC) HAS THE OBLIGATION TO PAY THE WAGES BEC HE BECOMES A DIRECT EMPLOYER ONLY FOR A LIMITED PURPOSE OF
PAYING WAGES AS IF THE PRINCIPAL(USC) EMPLOYED THE GUARDS HIMSELF. WHAT IS THE CONSTITUTIONAL BASIS FOR THIS RULE OF HOLDING THE PRINCIPAL JOINTLY & SEVERALLY LIABLE WITH THE CONTRACTOR? ANS: THE PROTECTION TO LABOR CLAUSE. IS IT NOT UNFAIR THAT THE PRINCIPAL WILL ALSO BE HELD LIABLE FOR DEFAULTS IMPUTABLE TO THE CONTRACTOR? ANS: NO. IT IS NOT BECAUSE THE PRINCIPAL IS ALLOWED REIMBURSEMENT WITH WHATEVER HE HAS PAID TO THE SECURITY GUARDS. WHO IS AN INDIVIDUAL INDEPENDENT CONTRACTOR? ANS: Individuals with special skills, expertise or talent enjoy the freedom to offer their services as independent contractors. WHAT IS THE MEANING OF WAGES IN CONTRACTING AGREEMENT: ANS: IT IS NOT LIMITED TO A MINIMUM WAGE BUT IT ALSO COVERS LABOR STANDARD BENEFITS (HOLIDAY, 13TH MONTH, PREMIUM PAY). ***DOES IT INCLUDE RETIREMENT PAY? NO. DOES IT INCLUDE SEPARATION PAY? NO. IT IS THE SOLE OBLIGATION OF THE CONTRACTOR. IT IS NOT FOUND IN LABOR CODE. WHAT IS THE LIABILITY OF AN INDIRECT EMPLOYER(USC) IF THERE IS AN INCREASE IN WAGE RATES? ANS: THE CONTRACT IS DEEMED AMENDED, THEREFORE USC WILL AUTOMATICALLY INCLUDE THE INCREMENT ON THE MINIMUM WAGE. WHO SHOULD PAY THE INCREASE IN WAGE RATES? ANS:SEC AGENCY SHOULD PAY THE SEC GUARDS AS THEIR EMPLOYER. THE GUARDS SHOULD NOT GO AFTER UNLESS THE CONTRACTOR REFUSES TO PAY. WHAT IF CONTRACTOR REFUSES TO PAY THE EE‘S ON THE
INCREASE WAGE RATE? ANS: EMPLOYEES CAN DEMAND FROM THE PRINCIPAL. WHAT IF THE PRINCIPAL REFUSES TO PAY THE EMPLOYEES ON THE INCREASE WAGE RATE, IS THE PRINCIPAL JUSTIFIED? ANS: IT IS NOT ALLOWED BEC HE IS JOINTLY & SEVERALLY LIABLE W/ THE CONTRACTOR. IF THE PRINCIPAL PAYS, IS HE ENTITLED TO REIMBURSEMENT BY THE CONTRACTOR? NO. THE LAW IS CLEAR THAT IF THERE IS AN INCREASE IN WAGE RATE IT SHALL BE BORNE BY THE PRINCIPAL. Note: This is a different liability of the principal from the unpayment of wages of the employees by the contractor because in the latter the principal is entitled to reimbursement. WHAT IS THE PREVAILING WAGE RATE NOW IN CEBU? WAGE RATE IS P305.00 WHAT ARE THE ELEMENTS TO CONSTITUTE LABOR ONLY CONTRACTING? 1.The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or 2.The contractor does not exercise the right to control over the performance of the work of the contractual employee WHAT ARE THE ELEMENTS OF LABOR ONLY CONTRACTING UNDER THE IMPLEMENTING RULES? (i) The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or (ii) the contractor does not exercise the right to control over the performance of the work of the contractual employee.
The foregoing provisions shall be without prejudice to the application of Article 248 (C ) of the Labor Code, as amended. IF THERE IS LABOR ONLY CONTRACTING WHAT IS THE LIABILITY OF THE PRINCIPAL? Under a Labor-only contracting arrangement The following are the effects: ▪ The subcontractor will be treated as the agent of the principal. Since the act of an agent is the act of the principal, representations made by the subcontractor to the employees will bind the principal ▪ The principal will become the employer as if it directly employed the workers engaged to undertake the subcontracted job or service. It will be responsible to the for all their entitlements and benefits under the labor laws ▪ The principal and the subcontractor will be solidarily treated as the employer ▪ The employees will become employees of the principal, subject to the classifications of employees under Art. 28 of the Labor Code If the labor-only contracting activity is undertake by a legitimate labor organization, a petition for cancellation of union registration may be filed against it, pursuant to Art. 239 (e). IN LABOR ONLY CONTRACTING, CAN THE PRINCIPAL CLAIM REIMBURSEMENT FROM THE CONTRACTOR? ANS: NO. BEC THE CONTRACTOR IS DEEMED HIS AGENT. ACCESSORY FOLLOWS THE PRINCIPAL. ***WORKER‟S PREFERENCE: MARQUEZ: I OWN A COMPANY ENGAGED IN MANUFACTURING BUSINESS. I AM THE PRES & YOU ARE ALL MY EMPLOYEES & MS. AGOT IS MY GEN MANAGER WHO OVERSEES MY EMPLOYEES & I PAY HER 500K A MONTH. I GET WATER FROM MAYNILAD & ELECTRIC FROM VECO. I WANTED TO BORROW MONEY FROM A BANK, BUT THE BANK ASKED FOR A COLLATERAL, I GUARANTEED MY PROPERTY. BANK AGREED FOR A REAL ESTATE MORTGAGE. AFTER RELEASE OF MONEY, I WENT TO CASINO & LOST SUBSTANTIAL MONEY. I HAVE NO
MORE MONEY TO PAY THE EMPLOYEES. WORSE, BANK NOTIFIED FORECLOSURE OF THE MORTGAGE. I FAILED TO REDEEM & I WAS EVICTED & WAS FORCED TO CLOSE MY BUSINESS. I OWE VECO, I OWE MAYNILAD, I OWE THE GOVERNMENT, I OWE MY EMPLOYEES. QUESTIONS RELATED TO FACTS: WOULD YOU CONSIDER YOURSELF AS WORKERS UNDER ART 110? YES. ART. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employer‘s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. SCOPE: ▪ Unpaid wages ▪ Other monetary claims DO YOU HAVE WORKER‘S PREFERENCE IN THIS CASE? YES. IS YOUR WORKER‘S PREFERENCE LIMITED TO UNPAID WAGES? ANS: NO. IT ALSO INCLUDES OTHER MONETARY CLAIMS. CAN YOU SUE YOUR EMPLOYER IN THE LABOR ARBITER? ANS: YES, BECAUSE I HAVE A CAUSE OF ACTION. WHAT WILL YOU DO IN ORDER TO ASSERT YOUR WORKER‘S PREFERENCE? ANS: I WILL FILE A PETITION TO DECLARE MY COMPANY BANKCRUPT IN THE REGULAR COURT. ONCE THE COURT HAS DECLARED THE COMPANY BANKCRUPT THAT IS THE TIME I CAN EXERCISE MY PREFERENCE. I WILL FILE IN REGULAR COURTS. WHY DOES THE LAW REQUIRE JUDICIAL DECLARATION OF
BANKRUPTCY OR LIQUIDATION? ANS: INORDER TO GIVE CREDITORS THE OPPORTUNITY TO PRESENT THEIR CLAIMS. WOULD THE WORKER‘S PREFERENCE BE SUPERIOR AGAINST BANK MORTGAGE CREDIT? ANS: NO. BEC THE MORTGAGE IN THE BANK IS A SPECIAL PREFERENCE CREDIT WHILE THE WORKERS PREFERENCE IS AN ORDINARY PREFERENCE CREDIT. HOW ABOUT BETWEEN THE OTHER CREDITORS (VECO,MAYNILAD) AND WORKER‘S PREFERENCE, WHICH ONE WILL ENJOY FIRST PREFERENCE? ANS: WORKERS‟ PREFERENCE PREVAILS, PROVIDED THERE HAS BEEN A JUDICIAL DECLARATION OF BANKCRUTCY. WHAT IS THE LAW GOVERNING BANKCRUPTCY? ANS: FRIA – FINANCIAL REHABILITATION & INSOVENCY ACT WHAT ARE THE TWO CONCEPT OF ATTY‘S FEE? 1.) Ordinary – claims for services rendered by an attorney (goes to the attorney‟s pocket) 2.) Extraodrinary (Art. 111) – attorney‟s fees in the concept of damages awarded to the party-litigant DOES THE LABOR CODE AUTHORIZE RECOVERY OF ATTY‘S FEES? ANS: YES, UNDER ARTICLE 111. ART. 111. Attorney‟s fees. - (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney‘s fees equivalent to ten percent of the amount of wages recovered. (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney‘s fees which exceed ten percent of the amount of wages recovered. ▪ Unlawful withholding of wages is prohibited except when there is consent or debt due to the employee.
DOES IT REFER TO ORDINARY OR EXTRAORDINARY ATTY‘S FEE? ANS: ART 111 REFERS TO EXTRAORDINARY CONCEPT OF ATTY‟S FEE. WHEN IS WITHHOLDING OF WAGES LAWFUL / UNLAWFUL? ANS: UNLAWFUL – IF THERE IS NO CONSENT FROM THE EMPLOYEE OR WITH VITIATED CONSENT. LAWFUL – IF W/ CONSENT; CONTRIBUTION TO SSS, PAG-IBIG, TAX, PHILHEALTH OR OTHER LEGALLY DEDUCTABLE CONTRIBUTION. ASIDE FROM ART 111 OF LABOR CODE IS THERE ANY INSTANCE OR LAW THAT AUTHORIZES RECOVERY OF ATTY‘S FEES? ANS: YES, ARTICLE 2208 OF THE NEW CIVIL CODE. Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious prosecution against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws; (9) In a separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. In all cases, the attorney's fees and expenses of litigation must be reasonable. DOES THE NEW CIVIL CODE PUT A CEILING OF RECOVERY FOR ATTY‘S FEE? ANS: NO. IT DEPENDS ON THE DISCRETION OF THE COURT. ARE NON- LAWYERS ALLOWED TO APPEAR BEFORE LABOR ARBITER AS A GEN RULE? ANS: AS A GENERAL RULE, NO. WHAT IS THE EXCEPTION IN THE LC? YES. UNDER ART 222. ART. 222. Appearances and Fees. - (a) Non-lawyers may appear before the Commission or any Labor Arbiter only: 1. If they represent themselves; or 2. If they represent their organization or members thereof.
***HOW ABOUT THE EXCEPTIONS UNDER THE IMPLEMENTING RULES IN THE NON-APPEARANCE OF NON LAWYERS? RULE III, SECS. 8 & 9, 2005 NLRC RULES NON LAWYERS – MAY APPEAR BEFORE THE LABOR ARBITER OR COMMISSION IN ANY OF THE FF CONDITIONS: PLM - AO 1. HE REPRESENTS HIMSELF AS PARTY TO THE CASE; 2. HE REPRESENTS A LEGITIMATE LABOR ORGANIZATION WHICH IS A PARTY TO THE CASE, PROVIDED, HE
PRESENTS TO THE COMMISSION OR LABOR ARBITER DURING THE MANDATORY CONFERENCE OR INITIAL HEARING: LAR CERTIFICATIONS FROM BLR OR REGIONAL OFFICE OF DOLE ATTESTING THAT THE ORGANIZATION IS LISTED IN THE ROSTER OF LEGITIMATE LABOR ORGANIZATION; A VERIFIED CERTIFICATION ISSUED BY THE SECRETARY AND ATTESTED TO BY THE PRESIDENT OF THE SAID ORGANIZATION STATING THAT HE IS AUTHORIZED TO REPRESENT THE SAID ORGANIZATION; A COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAID ORGANIZATION GRANTING HIM SUCH AUTHORITY. HE REPRESENTS MEMBERS OF A LEGITIMATE LABOR ORGANIZATION THAT IS EXISTING WITHIN THE EMPLOYER‘S ESTABLISHMENT WHO ARE PARTIES TO THE CASE, PROVIDED THAT HE PRESENTS: AM A VERIFIED CERTIFICATION ATTESTING THAT HE IS AUTHORIZED BY SUCH MEMBERS TO REPRESENT THEM; A VERIFIED CERTIFICATION ISSUED BY THE SECRETARY & ATTESTED TO BY THE PRESIDENT OF THE SAID ORGANIZATION STATING THAT A PERSON OR PERSONS HE/SHE IS REPRESENTING ARE MEMBERS IN THEIR ORGANIZATION WHICH IS EXISTING IN THE EMPLOYER‘S ESTABLISHMENT. HE IS A DULY ACCREDITED MEMBER OF ANY LEGAL AID OFFICE RECOGNIZED BY DOJ OR IBP: PROVIDED, HE PRESENTS PROOF OF HIS ACCREDITATION & REPRESENTS A PARTY TO THE CASE. HE IS THE OWNER OR PRESIDENT OF A CORPORATION OR ESTABLISHMENT WHICH IS A PARTY TO THE CASE: PROVIDED HE PRESENTS: AR A VERIFIED CERTIFICATION ATTESTING THAT HE IS AUTHORIZED TO REPRESENT SAID CORPORATION OR ESTABLISHMENT; A COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS OF SAID CORPORATION OR OTHER
SIMILAR RESOLUTION OR INSTRUMENT ISSUED BY SAID ESTABLISHMENT GRANTING HIM SUCH AUTHORITY. WHO ARE THE SPECIAL TYPES OF WORKERS? ANS: APPRENTICE – a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter. WHAT IS THE DIFFERENCE BETWEEN APPRENTICE & APPRENTICESHIP? ANS: "Apprenticeship" means practical training on the job supplemented by related theoretical instruction. An "apprentice" is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter. WHAT IS APPRENTICESHIP AGREEMENT & APPRENTICEABLE OCCUPATION? An "apprenticeable occupation" means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction. "Apprenticeship agreement" is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training.
WHAT TYPE INDUSTRY MAY ALLOWS APPRENTICESHIP? ANS: ART. 60. Employment of apprentices. - Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. WHAT AGENCY APPROVES APPRENTICESHIP PROGRAM? ANS: TESDA (TECHNICAL EDUCATION SKILLS DEVT CENTER) INORDER TO REMOVE AN EMPLOYEE (APPRENTICE) FROM THE PROVISIONS OF THE LABOR CODE, THE INDUSTRY MUST BE REGISTERED W/ TESDA. OTHERWISE, THEY WILL BE CONSIDERED REGULAR EMPLOYEES.
WHAT AGE IS ALLOWED FOR APPRENTICESHIP? ANS: LABOR CODE-14 YRS OLD (MALE OR FEMALE); IN THE IMPLEMENTING RULES – 15 YRS OLD (MALE AND FEMALE). BUT LABOR CODE PREVAILS. WHY DOES THE LAW ALLOW APPRENTICESHIP AS EARLY AS 14Y/O? ANS: TO TRAIN THEM BECAUSE THIS AGE IS HIGHLY TRAINABLE. WHAT IS THE PURPOSE OF APPRENTICESHIP? IS IT GOOD FOR THE ECONOMY? ANS: YES. BECAUSE THE GOVERNMENT HAS NO RESOURCES FOR TRAINING INSTEAD THEY ENCOURAGE APPRENTICESHIP PROGRAM BUT SUBJECT TO SOME CONDITION. IS THE ESTABLISHMENT OF AN APPRENTICESHIP PROGRAM MANDATORY IN PRIVATE ESTABLISHMENTS? ANS: NO. WHAT IS THE EXCEPTION? ANS: SECTION 41. Compulsory apprenticeship. — (a) When grave national emergencies, particularly those involving the security of the state, arise or particular requirements of economic development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory training of apprentices required in a certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical; (b) Where services of foreign technicians are utilized by private companies in apprenticeable trades said companies are required to set up appropriate apprenticeship programs. ***WHAT IS THE OTHER EXCEPTION???FINALS QUESTION( paki post sa FB,hehe) HOW DO THE GOVERNMENT ENCOURAGE APPRENTICESHIP? ANS: THEY GIVE INCENTIVES TO EMPLOYER WHICH
INCLUDES: 1. DEDUCTABILITY OF TRADING COSTS. 2. PAYMENT OF ONLY 1/2 OF THE TOTAL VALUE OF THE LABOR TRAINING EXPENSES. HOW LONG IS THE PERIOD OF APPRENTICESHIP? ANS: NOT LESS THAN 3 MONTHS BUT LESS THAN 6 MONTHS. IF THE PERIOD IS LESS THAN 3 MONTHS WOULD IT STILL BE APPRENTICESHIP? ANS: NO. THEY ARE CONSIDERED LEARNERS. ARE APPRENTICES ALSO ENTITLED TO REMUNERATION? ANS: YES. BUT NOT LESS THAN 75% OF THE MINIMUM WAGE. WHY ONLY 75%? BECAUSE THEY ARE NOT FULL BLOWN EMPLOYEES YET. CAN AN EMPLOYER ASK APPRENTICES RENDER OVERTIME AS A RULE? ANS: NO, BUT W/ EXCEPTION, IF THE EMPLOYER LACKS MANPOWER TO DO THE WORK. SUPPLEMENTAL NOTES ABOUT APPRENTICESHIP: ▪ They are trainees ▪ No ER-EE relationship – no right to labor standards (SPECIAL TYPES OF WORKERS) ▪ Benefits derived by an employer for apprenticeship programs: ▪ Entitled to apply for tax deduction ▪ Employer can pay substandard rates ▪ No commitment to hire after termination of apprenticeship program TRAINING PERIODS CREDITED SECTION 20. Hours of work. — Hours of work of the apprentice shall not exceed the maximum number of hours of work prescribed by law, if any, for a worker of his age and sex. Time spent in related theoretical instructions shall be considered as hours of work and shall be reckoned jointly with on-the-job training time in computing in the agreement the appropriate periods for giving wage increases to the
apprentice. An apprentice not otherwise barred by law from working eight hours a day may be requested by his employer to work overtime and paid accordingly, provided there are no available regular workers to do the job, and the overtime work thus rendered is duly credited toward his training time. WHEN CAN AN EMPLOYER NOT PAY THE REMUNERATION OF APPRENTICESHIP? ANS: THE GENERAL RULE: APPRENTICES ARE ENTITLED TO REMUNERATION. HOWEVER, IF THE APPRENTICESHIP IS PART OF THE SCHOOL CURRICULUM ( A REQUIREMENT FOR GRADUATION, TRAINING IN THE COURSE; THE DISCRETION HERE IS W/ THE EMPLOYER) THEY ARE NOT ENTITLED TO WAGES. ONCE APPRENTICESHIP IS COMPLETED, IS THE EMPLOYER REQUIRED TO HIRE THE APPRENTICE AS A REGULAR WORKER? ANS: NO. IT IS DISCRETIONARY ON THE ER BECAUSE THE APPRENTICE HAS EARNED ENOUGH SKILLS SO HE CAN APPLY ANYWHERE. DURING APPRENTICESHIP, CAN AN ER VALIDLY TERMINATE APPRENTICESHIP AGREEMENT? ANS: YES, PROVIDED UNDER THESE SIX (6) INSTANCES (HABITUAL ABSENTEEISM, WILLFUL DISOBEDIENCE OF THE RULES & REGULATIONS, PHYSICAL CONDITION- NOT ABLE TO WORK, THEFT, DESTRUCTION OF PROPERTY, ENGAGING IN VIOLENCE) CAN THE APPRENTICE TERMINATE HIS APPRENTICESHIP WITHIN SIX(6) MONTHS? ANS: YES BUT FOR THE FOLLOWING REASONS: SUBSTANDARD WORKING CONDITIONS; REPEATED VIOLATIONS BY THE ER OF THE APPRENTICESHIP AGREEMENT; CRUEL OR INHUMAN TREATMENT OF THE EMPLOYER OR HIS SUBORDINATES; PERSONAL PROBLEM; BAD HEALTH OF THE APPRENTICE.
WHAT WILL HAPPEN IF THE APPRENTICE ABANDONS THE WORK W/O JUST CAUSE? ANS: NO CERTIFICATE OF COMPLETION SHALL BE GIVEN. WHO ARE LEARNERS? ANS: Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. WHAT IS THE EMPLOYABLE AGE OF LEARNERS? ANS: Employment of minors as learners. — A minor below fifteen (15) years of age shall not be eligible for employment as a learner. Those below eighteen (18) years of age may only be employed in non-hazardous occupations. WHEN CAN THE EMPLOYER HIRE LEARNERS? ANS: When learners may be hired. - Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards. HOW LONG IS THE LEARNERSHIP? ANS: IT MUST NOT EXCEED THREE (3) MONTHS. WHAT TYPE OF INDUSTRY CAN ACCOMMODATE LEARNERS? ANS: SEMI-SKILLED INDUSTRY. IF A LEARNER IS ABLE TO COMPLETE LEARNERSHIP, IS THE ER OBLIGED TO EMPLOY THE LEARNER? YES. LEARNERS ARE ENTITLED TO SECURITY OF TENURE AND CANNOT BE DISMISSED W/O VALID & JUST CAUSE. CAN THE LEARNER REFUSE EMPLOYMENT? ANS: YES. HE CANNOT BE COMPELLED TO WORK IF DO NOT DESIRE TO. WHAT ARE THE CONTENTS OF LEARNERSHIP AGREEMENT?
ANS: Contents of learnership agreement. — A learnership agreement, shall include: (a) The names and addresses of the employer and the learner; (b) The occupation to be learned and the duration of the training period which shall not exceed three (3) months; (c) The wage of learner which shall be at least 75 percent of the applicable minimum wage; and (d) A commitment to employ the learner, if he so desires, as a regular employee upon completion of training. A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by the employer before the end of the stipulated period through no fault of the learner. IF A LEARNER TERMINATES LEARNERSHIP W/O JUST CAUSE, WHAT IS THE EFFECT? ANS: HE IS NOT ENTITLED TO REGULAR EMPLOYMENT. HANDICAPPED WORKERS WHO ARE HANDICAPPED WORKERS? ANS: They are those whose earning capacity is impaired by age or physical or mental deficiency or injury. Note: ***THE EARNING CAPACITY MUST BE IMPAIRED. WHAT ADVANTAGE WILL THE EMPLOYER GET IN EMPLOYING HANDICAPPED WORKERS? ANS: ER CAN PAY BELOW THE MINIMUM WAGE (75%); THEY ARE HIRED ON THE CONTRACTUAL BASIS W/O OBLIGATION TO HIRE THEM AS REGULAR EE‟S. SECTION 8.Incentives for Employer Entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons: Provided, however, that such entities present proof as certified by the Department of Labor
and Employment that disabled person are under their employ. Provided, further that the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications. Private entities that improved or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. ARE THE EMPLOYER‘S REQUIRED TO HIRE THEM AS REGULAR WORKERS? ANS: NO. BUT IN ONE CASE DEAF-MUTE WORKERS IN ONE BANK WERE CONSIDERED BY THE SC AS REGULAR EMPLOYEES BECAUSE THEIR CONTRACTS WERE RENEWED AFTER SIX(6) MONTHS OF SERVICE. SUPPLEMENTAL NOTES ▪ Handicapped workers – earning capacity is impaired by reason of age, physical disability or mental deficiency ▪ They are contractual workers ***REMEMBER: HANDICAPPED WORKERS ARE NOT EMPLOYEES; THEY ARE TRAINEES AND THE PROVISIONS IN THE LABOR CODE DOES NOT APPLY TO THEM. NOTE: HANDICAPPED WORKERS HAVE NO FIXED DURATION OF EMPLOYMENT. Which is a broader term, handicapped or disabled workers? Disabled (not sure) When you hire a disabled person, it is always contractual. They do not enjoy security of tenure because they are not employees they are special workers. EMPLOYMENT OF WOMEN NOTE: WOMEN BELONG TO VULNERABLE TYPE OF WORKERS.
THAT‘S WHY THERE IS A SPECIAL LAW FOR EMPLOYMENT OF WOMEN. WHAT SPECIFIC PROVISION IN THE CONSTITUTION THAT PROTECTS WOMEN IN THE WORKPLACE? ANS: THE ROLE OF WOMEN IN NATION BUILDING. NOTE: MEN & WOMEN ARE EQUAL BEFORE THE LAW. IF WOMEN‘S RIGHTS ARE VIOLATED IT IS AGAINST EQUAL PROTECTION CLAUSE. WHAT IS THE TREATY AGAINST DISCRIMINATION OF WOMEN? ANS: INTERNATIONAL CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION OF WOMEN. WHAT IS THE OBJECTIVE OF THE MAGNA CARTA FOR WOMEN (RA 9710)? ANS: The Magna Carta of Women ensures the equitable participation and representation of women in government, political parties, the civil service and the private sector. WHAT ARE THE FACILITIES FOR WOMEN IN THE WORKPLACE? 1. PROVIDE SEATS 2. SEPARATE TOILET ROOMS 3. DRESSING ROOM 4. NURSERY ROOM 5. DETERMINE STANDARDS FOR MINIMUM AGE NOTE: MATERNITY LEAVE BENEFIT IS THE ONE CONTEMPLATED IN SSS LAW. THE EMPLOYER MUST ADVANCE THE CASH ALLOWANCE OF THE EMPLOYEE SUBJECT TO REIMBURSEMENT FROM SSS. IS MATERNITY LEAVE BENEFIT ONLY AVAILABLE TO LAWFULLY MARRIED WOMEN? ANS: NO. ANY PREGNANT WOMAN EMPLOYEE WHETHER MARIED OR NOT IS ELIGIBLE UNDER THIS PROVISION. A female member who has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily
maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarean delivery, subject to the following conditions: (a) That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide; (b) The full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application; (c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received; (d) That the maternity benefits provided under this section shall be paid only for the first four (4) deliveries or miscarriages; (e) That the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and (f) That if an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. WHAT TYPE OF EMPLOYER WOULD NEED TO PROVIDE FAMILY PLANNING SERVICES IN THE WORKPLACE? ANS: NIGHTCLUBS, KARAOKE, SAUNA BATH PARLORS ETC. PROHIBITED DISCRIMINATION FOR WOMEN: ANS: Discrimination prohibited. - It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. NOTE: A HOMOSEXUAL CANNOT CLAIM THE PRIVILEGES UNDER ART 135 (PROHIBITED DISCRIMINATION FOR WOMEN) BECAUSE THE LAW IS ONLY APPLIED FOR WOMEN. ( KIBER!!! BABAE PO AKO!) THERE IS NO LAW IN PROTECTION AGAINST DISCRIMINATION OF ONE‘S GENDER (GAY, LESBIAN, MALE, FEMALE); ONLY DISCRIMINATION BETWEEN SEXES (MALE & FEMALE) ( KAILANGAN PAULIT-ULIT? WALA AKONG PAKI! BASTA MAGANDA AKO AT TAO!HEHE) CAN AN EMPLOYER DISMISS AN EMPLOYEE ON ACCOUNT OF PREGNANCY? ANS: NO. BECAUSE, PREGNANCY IS A MATERNAL FUNCTION OF WOMEN. (nagmamaganda talaga ang mga mga babaeng to! Grrrrr) WOMEN WORKING IN NIGHTCLUBS MARQUEZ: I AM A WOMAN (Sir feel na feel mo talaga? Feel ko rin!), AND YOU ARE AN OWNER OF A BAR. MY COMPENSATION IS BASED ON PURCHASE OF LADY‘S DRINKS (malamang babae ka nga eh), AM I AN EMPLOYEE? ANS: NO. MAYBE AN INDEPENDENT CONTRACTOR (kasi special talent mo pambobola…hehe J) SO, WHAT WILL MAKE ME AN EMPLOYEE THEN? ANS: YOUR EMPLOYER SHOULD HAVE SUPERVISION & CONTROL OF YOU.
ART. 138. Classification of certain women workers . - Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation. BUT, IF I AM A MAN WORKING IN A BAR (MACHO DANCER – sarap!), I AM NOT PROTECTED UNDER THE CLASSIFICATION BECAUSE THE PROTECTION ONLY APPLIES TO WOMEN WORKING IN NIGHTCLUBS. VIOLENCE AGAINST WOMEN AND CHILDREN (VAWC) NURSING WOMEN (hindi nursing student…hehe) ARE INCLUDED UNDER THE LAW. TAKE NOTE OF SEC 12 OF BREASTFEEDING ACT: RA 10028 SEC. 12 ―NURSING EMPLOYEES SHALL BE GRANTED NURSING INTERVALS IN ADDITION TO THE REGULAR TIME-OFF FOR MEALS TO BREASTFEED OR EXPRESS MILK. THESE INTERVALS WHICH SHALL INCLUDE THE TIME IT TAKES AN EMPLOYEE TO GET TO AND FROM THE WORKPLACE LACTATION STATION SHALL BE COUNTED AS COMPENSABLE HOURS WORKED. THE DOLE MAY ADJUST THE SAME PROVIDED THAT THE INTERVALS SHALL NOT BE LESS THAN 40 MINS FOR EVERY EIGHT (8) HR WORKING PERIOD.” LEAVE BENEFITS WITH GYNECOLOGICAL DISORDER ANS: In the workplace, women employees would be allowed to avail of a special leave benefit of two (2) months with full pay after undergoing surgery caused by gynecological disorders, provided that she has rendered at least six (6) months of continuous aggregate employment. NOTE: THIS IS AVAILED ONLY AFTER SURGERY W/O PREJUDICE TO THE ER OF CHOOSING WHETHER TO GIVE THE BENEFIT BEFORE OR AFTER THE SURGERY.
WHAT ARE THE SALIENT FEATURES ON EMPLOYMENT OF NIGHT WORKERS ? ANS: • The review and, if necessary, amendment or repeal of laws that are discriminatory to women. • Ensures women‟s equitable participation and representation in government, political parties, international bodies, civil service, and the private sector. • Affords equal opportunities to women in relation to education, employment, livelihood, social protection, and others, and including women in the military. • Mandates access to information and services pertaining to women‟s health. NIGHT WORKERS: WHO ARE NIGHT WORKERS? ANS: THOSE WHOSE WORK REQUIRES PERFORMANCE OF A SUBSTANTIAL NUMBER OF HOURS OF NIGHT WORK. HEALTH ASSESSMENT FOR NIGHT WORKERS: AT THEIR REQUEST, WORKERS SHALL HAVE THE RIGHT TO UNDERGO ASSESSMENT WITHOUT CHARGE AND TO RECEIVE ADVICE ON HOW TO REDUCE OR AVOID HEALTH PROBLEMS ASSOCIATED WITH THEIR WORK: BEFORE TAKING UP AN ASSIGNMENT AS A NIGHT WORKER; AT REGULAR INTERVALS DURING SUCH ASSIGNMENTS IF THEY EXPERIENCE HEALTH PROBLEMS DURING SUCH AN ASSIGNMENT WHICH ARE NOT CAUSED BY FACTORS OTHER THAN THE PERFORMANCE OF NIGHT WORK. TRANSFER FOR NIGHT WORKERS: NIGHTWORKERS WHO ARE CERTIFIED AS PERMANENTLY UNFIT TO WORK DUE TO HEALTH REASONS SHALL BE TRANSFERRED WHENEVER PRACTICABLE TO A SIMILAR JOB TO WHICH THEY ARE FIT TO WORK. IF SUCH TRANSFER TO A SIMILAR JOB IS NOT PRACTICABLE, THESE WORKERS SHALL BE GRANTED THE SAME BENEFITS AS OTHER WORKERS WHO ARE UNABLE TO WORK OR TO SECURE EMPLOYMENT DURING
SUCH PERIOD. A NIGHT WORKER CERTIFIED AS TEMPORARILY UNFIT FOR NIGHT WORK SHALL BE GIVEN THE SAME PROTECTION AGAINST DISMISSAL OR NOTICE OF DISMISSAL AS OTHER WORKERS WHO ARE PREVENTED FROM WORKING FOR REASONS OF HEALTH.
MANDATORY FACILITIES FOR NIGHT WORKERS: FIRST AID QUARTERS; SLEEPING QUARTERS; TRANSPORTATION SOCIAL SERVICES FOR NIGHT WORKERS – FOOD ALLOWANCE; TRANSPORTATION (SHUTTLE SERVICE) ETC. WHAT IS THE EXCEPTION TO THE COVERAGE NIGHT WORKERS? ANS:THOSE EMPLOYED IN THE AGRICULTURE, STOCK RAISING, FISHING, MARITIME TRANSPORT, AND INLAND NAVIGATION. EMPLOYMENT OF CHILDREN WHAT IS THE MINIMUM EMPLOYABLE AGE FORCHILDREN? ANS: Children below fifteen (15) years of age may be allowed to work under the direct responsibility of their parents or guardians in any non-hazardous undertaking where the work will not in any way interfere with their schooling. In such cases, the children shall not be considered as employees of the employers or their parents or guardians. Any person of either sex, between 15 and 18 years of age, may be employed in any non-hazardous work. No employer shall discriminate against such person in regard to terms and conditions of employment on account of his age. For purposes of this Rule, a non-hazardous work or undertaking shall mean any work or activity in which the employee is not exposed to any risk which constitutes an imminent danger to his safety and health. The Secretary of Labor and Employment shall from time to time publish a list of hazardous work and activities in which persons
18 years of age and below cannot be employed. CITE THE HOURS OF WORK ALLOWED IN THE EMPLOYMENT OF CHILDREN? (1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: provided, that the work shall not be more than four (4) hours at any given day; "(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week; "(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day."
NATURE OF WORK ALLOWED IN THE EMPLOYMENT OF CHILDREN? ANS: NON-HAZARDOUS WORK. WHAT ABOUT 18 Y/O, IS IT COVERED WITHIN THE PROHIBITION? ANS: NO. THE RESTRICTION APPLIES ONLY TO THOSE BELOW 18. EMPLOYMENT OF HOUSEHELPER WHAT IS A DOMESTIC OR HOUSEHOLD SERVICE? ANS: Service in the employer„s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer„s household, including services of family drivers. NOTA: HOUSEHELPER INCLUDES FAMILY DRIVERS BUT NOT COMPANY DRIVERS. WHO MAY QUALIFY AS A HOUSEHELPER?
ANS: ANY PERSON MALE OR FEMALE. WHAT IS THE MINIMUM EMPLOYABLE AGE OF A HOUSEHELPER? ANS: ATLEAST 15 Y/O. ARE THEY ALSO ENTITLED TO THE PROHIBITED HRS OF WORK SINCE THEY ARE MINORS? ANS: YES, THE RULES ON HOURS OF WORK FOR MINORS APPLY TO THEM. WHAT ARE THE THREE DISTINCTIVE FEATURES OF HOUSEHELPER? ANS: ▪ Employer is the head of the family ▪ Services are performed in and about employer‘s home ▪ Services are exclusively rendered for the personal comfort and convenience of the employer and members of his family WHERE DO YOU RENDER SERVICES AS A HOUSEHELPER? ANS: SERVICES ARE PERFORMED IN THE EMPLOYER‟S HOME. WHAT IS THE PURPOSE OF THE SERVICES OF A HOUSEHELPER? ANS: IT IS EXCLUSIVELY RENDERED FOR THE PERSONAL COMFORT & CONVENIENCE OF THE EMPLOYER (THIS IS EXCLUSIVE). CAN AN EMPLOYER DEFER PAYMENT OF SALARY THROUGH A STIPULATION OR AGREEMENT IF AN EMPLOYER OFFERS TO SEND THE HOUSEHELPER TO SCHOOL? ANS: NO. IT IS VOID. THE HOUSEHELPER SHOULD BE PAID FOR THE SERVICES RENDERED BECAUSE THE OFFER WAS INITIATED BY THE EMPLOYER. COMPENSATION OF HOUSEHELPERS: ANS: (1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;
(2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and (3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. EXCLUDING LODGING FOODS, & MEDICAL ATTENDANCE W/C SHALL BE PAID BY THE EMPLOYER. REMEMBER: THESE ADDITIONAL BENEFITS CANNOT BE DEDUCTED FROM THE HOUSEHELPER‟S WAGES. WHAT IS THE PERIOD FOR THE INITIAL CONTRACT OF HOUSEHELPERS? ANS: SERVICES SHOULD NOT EXCEED FOR 2 YRS. HOWEVER, UPON EXPIRATION OF THE INITIAL CONTRACT, IT CAN BE RENEWED FOR A PERIOD AT THE DISCRETION OF BOTH PARTIES. WHAT IS THE HOURS OF WORK OF A HOUSEHELPER? ANS: IT SHOULD NOT EXCEED 1O HRS A DAY WITH FOUR (4) DAYS PAID LEAVE IN ONE YEAR. AT ANY DAY A HOUSEHELPER CAN ENJOY THE VACATION LEAVE BECAUSE THERE IS NO SPECIFIC DAY PROVIDED BY LAW. ARE HOUSEHELPERS ENTITLED TO SICKLEAVE? ANS. NO. THERE IS NO SICK LEAVE. DO HOUSEHELPERS HAVE THE RIGHT TO EDUCATION? NO. THEY ONLY HAVE THE RIGHT TO THE OPPORTUNITY TO ELEMENTARY EDUCATION TO THOSE BELOW 18 Y/O. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the
contrary. WHO PAYS FOR THE ELEMENTARY EDUCATION OF A HOUSEHELPER? ANS: THE HOUSEHELPER PAYS BECAUSE IT FORMS PART OF HIS COMPENSATION UNLESS THERE IS A CONTRARY STIPULATION. NOTA: HOUSEHELPERS HAVE THE RIGHT TO ADEQUATE FOODS, NOT JUST FOODS. THEY MUST ALSO BE TREATED IN JUST & HUMANE MANNER WITHOUT PHYSICAL VIOLENCE. IF A HOUSEHELPER REACHES THE AGE OF 62 AND HE IS EARNING 1OOO A MONTH, IS HIS EMPLOYER REQUIRED TO REPORT TO THE SSS FOR COVERAGE? ANS: NO. HE WILL NOT BE COVERED WITH SSS BECAUSE SSS COVERAGE APPLIES ONLY TO THOSE BELOW 60 Y/O. IF A HOUSEHELPER REACHES THE RETIREMENT AGE, IS HE ENTITLED TO RETIREMENT BENEFITS? ANS: YES. BECAUSE THEY ARE NOT EXCLUDED IN THE LAW. The Retirement Pay Law shall apply to all employees in the private sector, regardless of their position, designation or status, and irrespective of the method by which their wages are paid. They shall include part-time employees, employees of service and other job contractors and domestic helpers or persons in the [personal service and agricultural establishment or operations employing not more than 10 employees or workers and employees of the National Government and its political subdivisions including government-owned and controlled corporations, if they are covered by the Civil Service Law and regulations. IF A HOUSEHELPER ENTERS INTO A CONTRACT OF EMPLOYMENT, CAN AN EMPLOYER JUST TERMINATE IT? ANS: NO. ONLY FOR A VALID AND JUST CAUSE. WHAT IF THE CONTRACT HAS A PERIOD LIKE FOR TWO (2) YRS? ANS: THE PARTIES MUST FOLLOW THE CONTRACT.
WHAT IF THE CONTRACT HAS NO PERIOD, CAN AN EMPLOYER JUST TERMINATE THE CONTRACT? ANS: THE EMPLOYER MUST NOTIFY 5 DAYS PRIOR TO THE TERMINATION OF THE CONTRACT. OTHERWISE, HE WILL BE LIABLE FOR UNJUST DISMISSAL. WHAT ARE THE REMEDIES OF AN EMPLOYEE UNJUSTLY DISMISSED? ANS: DAMAGES PLUS UNPAID SALARIES. NOTE: IN THE CASE OF ULRA VILLA FOODHOUSE… Chapter III, Title III, Book III, however, is silent on the grant of overtime pay, holiday pay, premium pay and service incentive leave to those engaged in the domestic or household service. Moreover, the specific provisions mandating these benefits are found in Book III, Title I of the Labor Code, and Article 82, which defines the scope of the application of these provisions, expressly excludes domestic helpers from its coverage: Art. 82. Coverage. - The provision of this title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. IN CASE OF DEATH OF THE HOUSHELPER, WHO BEARS THE EXPENSES FOR THE FUNERAL? ANS: THE EMPLOYER BEARS THE EXPENSES OF THE FUNERAL IF THE HOUSEHELPER HAS NO RELATIVES WITHIN THE PLACE. BUT, IF THERE ARE RELATIVES, THEY WILL BEAR THE EXPENSES OF FUNERAL. IF THE HOUSEHELPER RESIGNS, DOES SHE HAVE THE RIGHT TO CERTIFICATE OF EMPLOYMENT? ANS: YES.
HOMEWORKERS: ARE HOUSEHELPERS THE SAME AS HOMEWORKERS?
ANS: NO. HOUSEHELPER WORKS AT ER‟S HOME WHILE HOMEWORKERS WORK AT EE‟S HOME; HOMEWORKER IS ENGAGED IN INDUSTRIAL WORK, THE MATERIALS ARE GIVEN BY THE ER WHILE HOUSEHELPER RENDERS SERVICES PERSONALLY IN THE HOUSE OF THE ER. NOTA: IF A PERSON IS ENGAGED IN NEEDLE WORK THEY ARE EXEMPTED FROM THE MINIMUM WAGE. EMPLOYMENT OF ALIENS: DISTINGUISH A NON RESIDENT ALIEN FROM RESIDENT ALIEN? ANS: ***DOLE ISSUES ALIEN EMPLOYMENT PERMIT: ART. 40. Employment permit of non-resident aliens. - Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the 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. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. NOTA: RESIDENT ALIENS ARE ALLOWED BY LAW TO STAY OR RESIDE INDEFINITELY IN THE PHILS. RULE: ALL FOREIGN NATIONALS WHO INTEND TO ENGAGE IN GAINFUL EMPLOYMENT IN THE PHILS SHALL APPLY FPOR ALIEN EMPLOYMENT PERMIT. EXCLUSIONS FOR ALIEN EMPLOYMENAT PERMIT: DOG - EPTR
MEMBERS OF THE DIPLOMATIC SERVICE & FOREIGN GOVERNMENT OFFICIALS ACCREDITED BY AND WITH RECIPROCITY WITH THE PHILS. OFFICERS & STAFF OF INTERNATIONAL ORGANIZATION OF WHICH THE PHILIPPINE GOVERNMENT IS A MEMBER INCLUDING THEIR LEGITIMATE SPOUSES DESIRING TO WORK IN THE PHILS. FOREIGN NATIONALS ELECTED AS MEMBERS OF THE GOVERNING BOARD, WHO DO NOT OCCUPY ANY OTHER POSITION, BUT HAVE ONLY VOTING RIGHTS IN THE CORPORATION. ALL FOREIGN NATIONAL GRANTED EXEMPTION BY LAW. OWNERS & REPRESENTATIVES OF FOREIGN PRINCIPALS WHOSE COMPANIES ARE ACCREDITED BY THE POEA WHO COME FOR A LIMITED PERIOD SOLELY FOR INTERVIEWING FILIPINO APPLICANTS FOR EMPLOYMENT ABROAD. FOREIGN NATIONALS WHO COME TO THE PHILIPPINES TO TEACH OR CONDUCT RESEARCH STUDIES IN UNIVERSITIES, EXCHANGE PROFESSORS UNDER AGREEMENT WITH SCHOOLS IN THE PHILS, PROVIDED THE EXEMPTION IS ON RECIPROCAL BASIS. RESIDENT FOREIGN NATIONALS.
DURATION OF AEP: 1 YEAR, UNLESS THE CONTRACT PROVIDES OTHERWISE, BUT IN NO CASE SHALL IT EXCEED 5 YRS. THIS IS RENEWABLE. NOTE: APPLICATIONS FOR AEP SHALL BE FILED WITH THE REGIONAL OFFICE HAVING JURISDICTION ON THE INTENDED PLACE OF WORK. PEZA – FOREIGN NATLS GRANTED EXEMPTION BY LAW. GENERALLY, PHILS DOES NOT ENCOURAGE EMPLOYMENT OF ALIENS D/T COMPETITION IN SOME SITUATION. OPPOSITION MAY BE FILED W/ DOLE FOR THE APPLICATION OF A FOREIGN NATIONAL. (EMPLOYMENT OF NONRESIDENT ALIENS) NOTA: NONRESIDENT ALIENS ARE ALLOWED TO WORK IF
THEY ARE QUALIFIED & NO FILIPINO WORKER IS BETTER QUALIFIED. THE LABOR SECRETARY IS EMPOWERED TO DETERMINE AS TO THE AVAILABILITY OF THE SERVICES OF A PERSON IN THE PHILIPPINES WHO IS COMPETENT, ABLE AND WILLING AT THE TIME OF THE APPLICATION TO PERFORM THE SERVICES FOR WHICH AN ALIEN IS DESIRED. THE LABOR DEPARTMENT IS THE AGENCY VESTED WITH JURISDICTION TO DETERMINE THE QUESTION OF AVAILABILITY OF WORKERS. WORKING SCHOLARS: WHO ARE WORKING SCHOLARS? ANS: ARE STUDENTS WHO WORK FOR THE SCHOOL IN EXCHANGE FOR THE PRIVILEGE TO STUDY PREE este FREE OF CHARGE PROVIDED THEY ARE GIVEN THE REASONABLE OPPORTUNITY TO FINISH THE COURSE. (isipin mo lang si Lorie J) Q: ARE YOU ALSO ENTITLED TO COMPENSATION AS A WORKING SCHOLAR? A: NO. IT IS ONLY THE PRIVILEGE TO STUDY THAT I AM ENTITLED TO. Q: IF YOU WORK FOR THE SCHOOL FROM 8AM - 8PM W/ THE OPPORTUNITY TO FINISH YOUR COURSE IN NURSING AT 5 UNITS PER SEM, ARE YOU A WORKING SCHOLAR? A: NO. I AM A REGULAR WORKER. I CAN SUE MY SCHOOL & CLAIM BENEFITS THAT I AM ENTITLED TO. SPECIAL PROGRAM FOR EMPLOYMENTOF STUDENTS: ***WHAT TYPE OF ESTABLISHMENTS ARE QUALIFIED TO HIRE UNDER SPECIALPROGRAM FOR EMPLOYMENT OF STUDENTS (SPES)? ANS: THE ESTABLISHMENT MUST BE EMPLOYING 10 OR MORE WORKERS. ***WHAT IS THE AGE QUALIFICATION OF A STUDENT TO BE HIRED UNDER THE LAW? ANS: THE STUDENT MUST NOT BE BELOW 15Y/O NOR MORE
THAN 25Y/O. 20-52 DAYS OF WORK ONLY. SUNTZU P 163 Q:WHO AMONG THE WORKING STUDENTS MAY BE HIRED DURING SUMMER OR XMAS VACATION ONLY? A: SECONDARY STUDENTS. DURING CHRISTMAS THEY ARE ONLY ALLOWED TO WORK FOR 10-15 DAYS. HOW ABOUT THE TERTIARY SUDENTS? A:THEY MAY BE HIRED ANYTIME. NOTA: THEIR period of employment shall be from twenty (20) to fiftytwo (52) working days only, except that during Christmas vacation, employment shall be from ten (10) to fifteen (15) days which may be counted as part of the students' probationary period should they apply in the same company or agency after graduation: Provided, That students employed in activities related to their course may earn equivalent academic credits as may be determined by the appropriate government agencies. The LAW: ―Any provision of law to the contrary notwithstanding, any person or entity employing at least ten (10) persons may employ poor but deserving students fifteen (15) years of age but not more than twentyfive (25) years old, paying them a salary or wage not lower than the minimum wage for private employers and the applicable hiring rate for the national and local government agencies: Provided, that student enrolled in the secondary level shall only be employed during summer and/or christmas vacations, while those enrolled in the tertiary, vocational or technical education may be employed at any time of the year: Provided, further, That their period of employment shall be from twenty (20) to fifty-two (52) working days only, except that during Christmas vacation, employment shall be from ten (10) to fifteen (15) days which may be counted as part of the students' probationary period should they apply in the same company or agency after graduation: Provided, finally, That students employed in activities related to their course may earn equivalent academic credits as may be determined by the appropriate government agencies. "For purposes of this Act, poor but deserving students refer to those
whose parents' combined income, together with their own, if any, does not exceed the annual regional poverty threshold level for a family of six (6) for the preceding year as may be determined by the National Economic and Development Authority (NEDA). Employment facilitation services for applicants to the program shall be done by the Public Employment Service Office (PESO). "Participating employers in coordination with the PESO, must inform their SPES employees of their rights, benefits, and privileges under existing laws, company policies, and employment contracts." Section 2. Section 2 of the same Act is hereby amended to read as follows: "SEC. 2. Sixty per centum (60%) of the said salary or wage shall be paid by the employers in cash and forty per centum (40%) by the government in the form of a voucher which shall be applicable in the payment for the students' tuition fees and books in any educational institution for secondary, tertiary, vocational or technical education: Provided, That local government units (LGUs) may assume responsibility for paying in full his salary or wages. The amount of the education vouchers shall be paid by the government to the educational institutions concerned within thirty (30) days from its presentation to the officer or agency designated by the Secretary of Finance. "The vouchers shall not be transferable except when the payees thereof dies or for a justifiable cause stops in his duties, in which case it can be transferred to his brothers or sisters. If there be none, the amount thereof shall be paid his heirs or to the payee himself, as the case may be." WHAT IS DUAL TRAINING SYSTEM? A: Refers to a delivery system of quality technical and vocational education which requires training to be carried out alternately in two venues: in-school and in the production plant. In- school training provides the trainee the theoretical foundation, basic training, guidance and human formation, while in-plant training develops his skills and proficiency in actual work conditions as it continues to inculcate personal discipline and work values;
EMPLOYMENT OF ACADEMIC AND NON-ACADEMIC PERSONNEL IN PRIVATE EDUCATIONAL INSTITUTION ―Academic personnel‖ includes all school personnel who are formally engaged in actual teaching service or research assignments, either on full-time or part-time basis, as well as those who possess certain prescribed academic functions, such as registrars, librarians, guidance councilors, researchers and other similar persons (Sec. 4, par.c). [note: manual of regulations for private educational institution applies here and not labor code] ―Non-academic personnel‖ means school personnel usually engaged in ADMINISTRATIVE functions, who are not covered under the definition of academic personnel. They may include school officials. [Note: labor code applies here] In Private Educational Institutions (Manual of Regulations for Private School) * as simply classified by Marquez a. Academic Personnel a.1. Academic teaching a.2. Academic non-teaching (ex. The librarian) b. Non-Academic Personnel – those staff who perform administrative functions but are not involved in academic work * Their employment is NOT covered by the MRPS or by the TVET Manual but by the Labor Code. Section 45 of the 1992 Manual of Regulations for Private Schools provides that full-time academic personnel are those meeting all the following requirements: a. Who possess at least the minimum academic qualifications prescribed by the Department under this Manual for all academic personnel;
b. Who are paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the Department and the school; c. Whose total working day of not more than eight hours a day is devoted to the school; d. Who have no other remunerative occupation elsewhere requiring regular hours of work that will conflict with the working hours in the school; and e. Who are not teaching full-time in any other educational institution. All teaching personnel who do not meet the foregoing qualifications are considered part-time. ACADEMIC PERSONNEL– MANUAL GOVERNS NON ACADEMIC PERSONNEL– LABOR CODE GOVERNS HIRING OF SENIOR CITIZENS RA 994 WHAT IS THE ROLE OF DOLE IN HIRING SENIOR CITIZENS? ***MEDICAL, DENTAL & OCCUPATIONAL SAFETY OF EMPLOYEES WHAT ARE THE REQUIREMENTS TO EMPLOYERS FOR THE MEDICAL, DENTAL & OCCUPATIONAL SAFETY OF ITS EMPLOYEES? ANS: No. of Employees Nature of Undertaking Requirement 1.) From 10 to 50 - a graduate first-aider who may be one of the workers in the workplace and who has immediate access to the first-aid medicines in the workplace (Rule 1, Sec. 4(a), Bk IV, IRR)
2.) More than 50 but not more than 200 *Hazardous
*Non-hazardous - Full-time registered nurse - Graduate first-aider, if no registered nurse available 3.) More than 200 but not more than 300 *Hazardous & Non-hazardous a. Full-time registered nurse b. Part-time physician and part-time dentist *Hazardous workplace – shoud stay in the premises for at least two (2) hours *Non-hazardous workplace – physician and dentist may be engaged on retained basis subject to regulations by the SOLE (Art. 157, LC) *Additional requirements under the Implementing Rules for Workplaces with more than one workshift a day: - The physician and dentist shall be at the workplace during the workshift which has the biggest number of workers and shall be subject to call at anytime during the other workshifts to attend to emergency cases - A full-time first-aider must be provided for each workshift, (Sec. 4 (d) & (e), Bk IV, Rule 1, IRR) c. An emergency clinic 4.) More than 300 *Hazardous and Non-hazardous a. Full-time physician and full-time dentist *Hazardous workplace – full-time physician and full-time dentist should stay in the premises for at least 8 hours
*Non-hazardous workplace – physician and dentist may be engaged on retained basis subject to regulations by the SOLE (Art. 157, LC) - employer may engage the services of a part-time physician and a part-time dentist who shall have the same responsibilities as those provided under number 3(b) above. (Sec. 4 (d), Rule I, Bk IV, IRR) * Additional requirements under the Implementing Rules for Workplaces with moe than one workshift a day: - The physician and dentist shall be at the workplace during the workshift which has the biggest number of workers and shall be subject to cal at anytime during the other workshifts to attend to emergency cases. - A full-time first-aider must be provided for each workshift. (Sec. 4 (d) & (e), Bk IV, Rule I, IRR) b. Full-time registered nurse c. Dental clinic d. Infirmary or emergency hospital with one bed capacity for every 100 employees. Exceptions (IRR, Sec. 5, Bk IV, Rule 1): *In urban area – where there is a hospital or dental clinic which is not more than 5 km. away from the workplace *In rural area – where a hospital or dental clinic can be reached by motor vehicle in 25 mins. In both cases, the employer should have readily available facilities for transporting a worker to the hospital or clinic in case of emergency. Provided further, that the employer shall enter into a written contract with the hospital or dental clinic for the use thereof in the treatment of workers in case of emergency. WHAT ARE THE EXCEPTIONS: *In urban area – where there is a hospital or dental clinic which is not more than 5 km. away from the workplace
*In rural area – where a hospital or dental clinic can be reached by motor vehicle in 25 mins. In both cases, the employer should have readily available facilities for transporting a worker to the hospital or clinic in case of emergency. Provided further, that the employer shall enter into a written contract with the hospital or dental clinic for the use thereof in the treatment of workers in case of emergency. IS THE ER MANDATED TO HIRE & EMPLOY THESE MEDICAL PERSONNEL? ANS: NO. THE EMPLOYER JUST NEEDS TO FURNISH THEIR SERVICES. Case: ― As correctly observed by the petitioner, while it is true that the provision requires employers to engage the services of medical practitioners in certain establishments depending on the number of their employees, nothing is there in the law which says that medical practitioners so engaged be actually hired as employees, adding that the law, as written, only requires the employer "to retain", not employ, a part-time physician who needed to stay in the premises of the nonhazardous workplace for two (2) hours.‖-Phil Global VS NLRC ART. 161. ASSISTANCE OF EMPLOYER It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency. HOW DO YOU APPLY THIS RULE? Petitioner argues that her cause of action is not predicated on a quasi delict or tort, but on the failure of private respondents -- as employers of her husband (Captain Tolosa) -- to provide him with timely, adequate and competent medical services under Article 161 of the Labor Code: "ART 161. Assistance of employer. -- It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency." Likewise, she contends that Article 217 (a) (4)7 of the Labor Code
vests labor arbiters and the NLRC with jurisdiction to award all kinds of damages in cases arising from employer-employee relations. Petitioner also alleges that the "reasonable causal connection" rule should be applied in her favor. Citing San Miguel Corporation v. Etcuban,8 she insists that a reasonable causal connection between the claim asserted and the employer-employee relation confers jurisdiction upon labor tribunals. She adds that she has satisfied the required conditions: 1) the dispute arose from an employer-employee relation, considering that the claim was for damages based on the failure of private respondents to comply with their obligation under Article 161 of the Labor Code; and 2) the dispute can be resolved by reference to the Labor Code, because the material issue is whether private respondents complied with their legal obligation to provide timely, adequate and competent medical services to guarantee Captain Tolosa's occupational safety.9 We disagree. We affirm the CA's ruling that the NLRC and the labor arbiter had no jurisdiction over petitioner's claim for damages, because that ruling was based on a quasi delict or tort per Article 2176 of the Civil Code.10 Time and time again, we have held that the allegations in the complaint determine the nature of the action and, consequently, the jurisdiction of the courts.11 After carefully examining the complaint/position paper of petitioner, we are convinced that the allegations therein are in the nature of an action based on a quasi delict or tort. It is evident that she sued Pedro Garate and Mario Asis for gross negligence. Petitioner's complaint/position paper refers to and extensively discusses the negligent acts of shipmates Garate and Asis, who had no employer-employee relation with Captain Tolosa. Specifically, the paper alleges the following tortious acts: "x x x [R]espondent Asis was the medical officer of the Vessel, who failed to regularly monitor Capt. Tolosa's condition, and who needed the USCG to prod him to take the latter's vital signs. In fact, he failed to keep a medical record, like a patient's card or folder, of Capt. Tolosa's illness."12 "Respondents, however, failed Capt. Tolosa because Garate never initiated actions to save him. x x x In fact, Garate rarely checked personally on Capt. Tolosa's condition, to wit:"13 "x x x Noticeably, the History (Annex "D") fails to mention any instance when Garate consulted the other officers, much less Capt.
Tolosa, regarding the possibility of deviation. To save Capt. Tolosa's life was surely a just cause for the change in course, which the other officers would have concurred in had they been consulted by respondent Garate – which he grossly neglected to do. "Garate's poor judgement, since he was the officer effectively in command of the vessel, prevented him from undertaking these emergency measures, the neglect of which resulted in Capt. Tolosa's untimely demise."14 The labor arbiter himself classified petitioner's case as "a complaint for damages, blacklisting and watchlisting (pending inquiry) for gross negligence resulting in the death of complainant's husband, Capt. Virgilio Tolosa."15 We stress that the case does not involve the adjudication of a labor dispute, but the recovery of damages based on a quasi delict. The jurisdiction of labor tribunals is limited to disputes arising from employer-employee relations, as we ruled in Georg Grotjahn GMBH & Co. v. Isnani:16 "Not every dispute between an employer and employee involves matters that only labor arbiters and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes, or their collective bargaining agreement."17 The pivotal question is whether the Labor Code has any relevance to the relief sought by petitioner. From her paper, it is evident that the primary reliefs she seeks are as follows: (a) loss of earning capacity denominated therein as "actual damages" or "lost income" and (b) blacklisting. The loss she claims does not refer to the actual earnings of the deceased, but to his earning capacity based on a life expectancy of 65 years. This amount is recoverable if the action is based on a quasi delict as provided for in Article 2206 of the Civil Code,18 but not in the Labor Code. While it is true that labor arbiters and the NLRC have jurisdiction to award not only reliefs provided by labor laws, but also damages governed by the Civil Code,19 these reliefs must still he based on an action that has a reasonable causal connection with the Labor Code, other labor statutes, or collective bargaining agreements.20 The central issue is determined essentially from the relief sought in the complaint. In San Miguel Corporation v. NLRC,21 this Court held:
"It is the character of the principal relief sought that appears essential in this connection. Where such principal relief is to be granted under labor legislation or a collective bargaining agreement, the case should fall within the jurisdiction of the Labor Arbiter and the NLRC, even though a claim for damages might be asserted as an incident to such claim."22 The labor arbiter found private respondents to be grossly negligent. He ruled that Captain Tolosa, who died at age 58, could expect to live up to 65 years and to have an earning capacity of US$176,400. It must be noted that a worker's loss of earning capacity and blacklisting are not to be equated with wages, overtime compensation or separation pay, and other labor benefits that are generally cognized in labor disputes. The loss of earning capacity is a relief or claim resulting from a quasi delict or a similar cause within the realm of civil law. "Claims for damages under paragraph 4 of Article 217 must have a reasonable causal connection with any of the claims provided for in the article in order to be cognizable by the labor arbiter. Only if there is such a connection with the other claims can the claim for damages be considered as arising from employer-employee relations."23 In the present case, petitioner's claim for damages is not related to any other claim under Article 217, other labor statutes, or collective bargaining agreements. Petitioner cannot anchor her claim for damages to Article 161 of the Labor Code, which does not grant or specify a claim or relief. This provision is only a safety and health standard under Book IV of the same Code. The enforcement of this labor standard rests with the labor secretary.24 Thus, claims for an employer's violation thereof are beyond the jurisdiction of the labor arbiter. In other words, petitioner cannot enforce the labor standard provided for in Article 161 by suing for damages before the labor arbiter. It is not the NLRC but the regular courts that have jurisdiction over actions for damages, in which the employer-employee relation is merely incidental, and in which the cause of action proceeds from a different source of obligation such as a tort.25 Since petitioner's claim for damages is predicated on a quasi delict or tort that has no reasonable causal connection with any of the claims provided for in Article 217, other labor statutes, or collective bargaining agreements, jurisdiction over the action lies with the regular courts26 -- not with the NLRC or the labor arbiters.
IF DURING AN EMERGENCY AN EMPLOYEE WAS NOT GIVEN ADEQUATE & IMMEDIATE ASSISTANCE, CAN HE CLAIM AN ACTION UNDER ART 161? *** ANS: THERE WILL BE CIVIL LIABILITY UNDER TORTS & DAMAGES. IF UNDER LC THEN THE STATE INSURANCE FUND SHALL BE LIABLE. WHAT IS A STATE INSURANCE FUND? LIABILITY OF STATE INSURANCE FUND ART. 172 (LC). LIMITATIONS OF LIABILITY The State Insurance Fund shall be liable for compensation to the employee or his dependents, EXCEPT when the disability or death was occasioned by the employee‗s: a. Intoxication b. Willful intention to injure or kill himself or another, c. Notorious negligence, or otherwise provided under this Title. -―Intoxication or Drunkennes - under this Article consists in being under the influence of intoxicating liquor to the extent that one is not entirely himself or so that his judgment is impaired and his act, words, or conduct is visibly impaired. -―Self-inflicted Injuries - must be intentionally self-inflicted, that is, there must be a deliberate intent on the part of the employee, not a failure on his part to realize the probable consequences to himself of his foolish act. -―Notorious Negligence - is something more than simple contributory negligence. It signifies a deliberate act of the employee to disregard his own personal safety. ART. 173 (LC). EXTENT OF LIABILITY. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, RA No. 1161, as amended, Commonwealth Act No. 186, as amended, Republic Act No. 610, as amended, and other laws whose benefits are administered by the System, or by other agencies of the government. RULE AGAINST DOUBLE RECOVERY: OPTIONS AVAILABLE: Benefits under the Compensation Law OR Under the Civil Code. [ Ysmael Maritime Corporation vs. Avelino, G.R. No. 43674, June 30, 1987 ] HELD: The action is selective and the employee or his heirs have a choice of availing themselves of the benefits under the WCA or of suing in the regular courts under the Civil Code for higher damages from the employer by reason of his negligence. BUT once the election has been exercised, the employee or his heirs are no longer free to opt for the other remedy, i.e., THE EMPLOYEE CANNOT PURSUE BOTH ACTIONS SIMULTANEOUSLY. Thus, the employee‗s parents cannot be allowed to maintain their present action to recover additional damages under the Civil Code. They had previously filed and had received the compensation payable to them under the WCA. They not only opted to recover under this Act but had also been duly paid. A sense of fair play demands that if a person entitled to a choice of remedies made a first selection and accepted the benefits thereof, he should no longer be allowed to exercise the second option. NOTE: * RULES Re Employer‗s Liability for Death or Personal Injuries of Employees a. Employer LIABLE - if the cause of death or personal injury arose
out of and in the course of Employment, even if the event was purely accidental or fortuitous. b. Employer NOT LIABLE – if the cause of death or personal injury was due to the employee‗s own notorious negligence, or voluntary act or drunkenness. c. Compensation EQUITABLY REDUCED – if the cause was partly due to the employee‗s lack of due care. d. Employer SOLIDARILY LIABLE with guilty fellow worker – if the cause was due to the negligence of a fellow worker e. Employer LIABLE - if the cause was due to the intentional or malicious act of a fellow worker, UNLESS the employer can prove that he exercised due diligence in selecting and supervising said fellow worker, in which case, only said fellow worker will be held liable. NOTA: THERE SHOULD BE NO REDUCTION FROM EMPLOYEE‘S WAGES AS HIS CONTRIBUTION FOR ECC ON ACCOUNT THAT THE CONTRIBUTION MUST BE GIVEN BY HIS EMPLOYER. EMPLOYEE„S COMPENSATION ACT ART. 166 (LC). POLICY. The State shall promote and develop a tax-exempt employee‗s compensation program whereby employees and their dependents, in the event of work-connected diability or death, may promptly secure adequate income benefit, and medical or related benefits. ― Workmen‗s Compensation - is a general and comprehensive term applied to those laws providing for compensation for loss resulting from the injury, disablement, or death of workmen through industrial accident, casualty, or disease. (Azucena, p.353). ― Compensation, under the workmen‗s compensation statute, means the money relief afforded according to the scale established under the statute, as differentiated from ―compensatory damages recoverable in an action at law for breach of contract or for a tort.
(Azucena, p. 353). ECC RULES, Rule I. COVERAGE (a.) Every employer shall be covered. (b.) Every employee not over 60 years of age shall be covered. (c.) An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both Systems. ART. 167 (k), (LC). ―Injury means any harmful change in the human organism from any accident arising out of and in the course of employment. Under Bk IV, Rule III, Sec. 1 (a), Implementing Rules: (a.) For the injury and the resulting disability or death to be compensable, the injury must be the result of an employment accident satisfying all of the following grounds: 1. The employee must have been injured at the place where his work requires him to be; 2. The employee must have been performing his official functions; and 3. If the injury is sustained elsewhere, the employee must have been executing an order for the employer. NOTE: ECC IS GIVEN ON TOP OF THE SSS BENEFITS. WHAT AGENCY REGULATES ECC? ANS: SSS. Q:WHERE MUST AN EMPLOYEE GO IF DENIED CLAIMS FROM ECC? A: ECC COMMISSION MIGRANT WORKERS Q: IS IT THE POLICY OF THE STATE TO PROMOTE EMPLOYMENT OVERSEAS?
A: NO. THE LAW ONLY PROVIDES PROTECTION FOR THE EE‟S OVERSEAS. Q: WHAT GOVERNMENT AGENCIES ARE INVOLED FOR REGULATION OF MIGRANT WORKERS? Section 23. Role of Government Agencies. - The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and, as far as applicable, all overseas Filipinos: (a) Department of Foreign Affairs - The Department, through its home office or foreign posts, shall take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos; (b) Department of Labor and Employment - The Department of Labor and Employment shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos including the grant of legal assistance and the referral to proper medical centers or hospitals: (b.1) Philippine Overseas Employment Administration - Subject to deregulation and phase-out as provided under Sections 29 and 30 herein, the Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. (b.2) Overseas Workers Welfare Administration - The Welfare officer or in his absence, the coordinating officer shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or by their principals. In the performance of this function, he shall make representation and may call on the agencies or entities
concerned to conferences or conciliation meetings for the purpose of settling the complaints or problems brought to his attention. WHO IS A MIGRANT WORKER? A: A person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a legal resident; to be used interchangeably with overseas Filipino worker. WHAT IS ILLEGAL RECRUITMENT & PLACEMENT? WHAT IS THE DIFFERENCE BETWEEN LICENSE & AUTHORITY? A: Illegal recruitment is deemed committed by a SYNDICATE when it is carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in LARGE SCALE if committed against three (3) or more persons individually or as a group. A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency, while an authority is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. However, it appears that even licensees or holders of authority can be held liable for illegal recruitment should they commit any of the above-enumerated acts. BAN ON DIRECT HIRING; TRAVEL AGENCIES ART. 18. Ban on direct-hiring. - No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. ART. 26. Travel agencies prohibited to recruit. - Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not. IF THRU FB A FRIEND OFFERED YOU A JOB IN CANADA, CAN I BE EMPLOYED THIS WAY? A: YES, AS A NAME HIRE. THEREFORE, I AM NOT PROTECTED BY FOREIGN EMPLOYMENT LAW BEC IT ONLY APPLIES TO
EMPLOYMENT COURSED THROUGH POEA. CAN ILLEGAL RECRUITMENT BE COMMITTED AGAINST AN INDIVIDUAL? YES ACTS OF ILLEGAL RECRUITMENT:
DOES THE LAW REQUIRE NATIONALITY IN THE RECRUITMENT 1. A FILIPINO CITIZEN 2. IF CORP – MUST BE EMPLOYING 75% FILIPINO 3. BLOCKLISTING 4. IMMORAL EMPLOYMENT 5. ACTS THAT OBSTRUCT THE GOV AGENCIES IS THERE A PROVISION OF LAW ON MANDATORY REMITTANCES OF FOREIGN EXCHANGE EARNINGS? ANS: YES. ART 22 OF LC ARE TRAVEL AGENCIES QUALIFIED IN RECRUITMENT & PLACEMENT BUSINESS? ANS: NO. THEY ARE PRONE TO ABUSE BEC THEY TEND TO PROMISE EMPLOYMENT ABROAD. WHAT COULD BE A VALID REASON OF FAILURE TO DEPLOY AN APPLICANT? WAR WHAT IS THE UNAUTHORIZED INTEREST ON LOANS? MORE THAN 8% MR SAYSON WAS GIVEN 2YRS CONTRACT IN CANADA, AFTER 6 MOS THE ER TERMINATED HIS EMPLOYMENT. HE WAS REPATRIATED. Q: WAS HE ILLEGALLY DIMISSED? YES. WHAT ARE HIS RELIEFS? A: MONEY CLAIMS REPRESENTING FULL REIMBURSEMENT OF PLACEMENT PAY AT 12% PER ANNUM, PLUS HIS SALARIES FOR THE UNEXPIRED PORTION OF HIS EMPLOYMENT CONTRACT.
NOTE: The Overseas Workers Welfare Administration (OWWA), in coordination with appropriate international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disaster or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the OWWA. CAN CONGRESS PASS A LAW WHICH HAS BEEN DECLARED BY THE SUPREME COURT TO BE UNCONSTITUTIONAL? The legislature has no power to overrule the interpretation or construction of a statute or the Constitution by the the Supreme Court, for interpretation is a judicial function assigned to the latter by the fundamental law. While the legislature may indicate its construction of a statute in the form of a resolutory or declaratory act, it cannot preclude the courts from giving the statute a different interpretation. ---Endencia vs. David, 93 Phil 696.; Chinese Flour Importers' Assn. vs. Price Stabilization Board, 89 Phil. 439
The Supreme Court ruled that the legislature cannot override its interpretation of the constitutional provision. Explains the Court: "Under our system of constitutional government, the legislative department is assigned the power to make and enact laws. The executive department is charged with the execution or carrying out the provisions of said laws. But the interpretation and application of said laws belong exclusively to the judicial department. And this authority to interpret and apply the laws extend to the Constitution. Before the court can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because of there is, then the law will have to give way and has to be declared invalid and unconstituional. If the legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion. Under such system, a final court determination of a case based on a judicial interpretation of the law or of the
constitution may be undermined or even annulled by a subsequent and different interpretation of the law or the consitution by the legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers. SPECIAL CASES FOR REVIEW: A. scope of liability of ― indirect employer‖ for ― unpaid wages ― , & for ― wages increases‖ under RA 6727, limited to statutory wage , excluding increase in overtime pay , premium pay etc. , as held in 2005 National Food Authority B. rules on holiday pay & special day : (a) regular holiday falling on employee‘s rest day ; (b) two regular holidays falling on employee‘s rest day ;(c) two regular holidays falling on the same day ; see also 2002 San Miguel Corp. on applicability of muslim holidays ti bibmuslims in muslim regions; see also DOLE Explanatory Bulletin dated March 11, 1993 affirmed as valid on two (2) regular holidays falling on the same day , as held in 2004 Asian Transmission Corp . case , as there is no reduction of number of holidays C. Drivers paid on ― boundary basis excluded from 13th month pay , held in 2004 R&E Transport ; prorating of 13th month pay of workers for period while they were on strike , held in 2005 Honda Phils. Was illegal due to company CBA making no such qualification, citing 1993 Davao Fruits D. Commission included in ― basic salary ― ,held in 1995 Phil. Duplicator ; however excluded in 1993 Boie Takeda Chemicals ; but see 2007 Reyes , citing the 1993 case of Boie Tkeda Chemicals & 1995 case of Phil. Duplicators , commissions received by a unit manager cannot be considered in the computation of the retirement pay and the 13th month pays as they are in the form of profit sharing payment s and had no clear , direct or necessary relation to the amount of work he actually performed . Here the unit manager does not enter into actual sale transactions , and the commissions were not regularly received by him .; and see also 2008 Letran Calamba Faculty & Employees Association, where overload pay should be excluded from the 13th month pay ; as it is paid for additional work in
excess of the regular teaching load , similar to overtime pay ; this rule applies regardless whether the overload is an additional or extra teaching load has been completed . Hence, any pay given as compensation for such additional work should be considered as extra and not deemed as part of the regular or basic salary. E. employment of ―apprentice‖,‖learner‖ & ―handicapped worker‖; handicapped worker distinguished from disabled person under Magna Carta for disabled Persons; see also concept of ―working scholar ―under omnibus rules where no employer-employee relationship & ―resident physicians undergoing training in hospitals F. right of helpers against illegal dismissal & effect of illegal dismissal , held in 1999 Ultra Villa Food Haus ; rights of househelper G. see 2005 Barrayoga , where workers preference under Art.110 is considered an ordinary preferred credit ; it is first priority in order of preference under Art. 2244 of Civil Code but not over special preferred credits under Art. 2241 & 2242 , like mortgage credit . It cannot apply outside a bankruptcy or judicial liquidation proceeding. H. Entitlement to retirement pay on top of separation pay in case of retrenchment depends on retirement plan , held in 2004 Cruz I. In the absence of age of retirement in the CBA , ( or employment contract or retirement plan ) , the age of retirement under the law will apply , retirement being a bilateral act, requires an agreement between the employer and the employee J. 2007 Intercontinental Broadcasting Corp., which uses Art. 1155 of Civil Code on the interruption of prescriptive period for money claims of workers K. 2008 Atty. Ortiz , involving a petition with the Supreme Court to recover attorney‘s fees from the employer bases on NLRC‘s decision after the lawyer‘s clients agreed to accept settlement of their cases without the lawyer‘s conformity; since award pertains to the employees and not to the lawyer as indemnity for damages, the former can waive the same and the lawyer has no legal standing (not the real party in interest) to prosecute the same against the employer;
even if the lawyer‘s clients agreed to treat the award of attorney‘s fees as lawyer‘s fees, the 10 % should be based on the amount that his clients have agreed to accept as settlement , as this is considered the ―amount of wages recovered‖; remedy of lawyer who is aggrieved is to sue his clients; quit claim executed by client does not require conformity of his counsel to be valid , citing 2005 Danzas Intercontinental , Inc.; award of attorney‘s fees under Art. 111 does not require proof that employer acted maliciously or in bad faith L. motion to enforce attorney‘s lien filed with labor arbiter during execution stage , to recover contingent fee as agreed in writing with client is valid , held in 2009 Masmud; Art. 111 on 10 % limitation applies only to extraordinary attorney‘s fees and to ordinary attorney‘s fees M. legal reliefs of OFW under Migrant Worker‘s & Overseas Filipino Act ; see 2009 Serrano En Banc , declaring par 5 , Sec. 10 RA 8042 unconstitutional insofar as it limits the award to ― three months for every year of unexpired term, whichever is less ―, stating that an OFW who is unjustly dismissed is entitled to his salaries for the unexpired portion of his employment contract; it violates the equal protection clause : it creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year : those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause and their monetary benefits limited to their salaries for three months only (The three (3) months salary cap applies when the term of the contract is fixed at one (1) year of longer) N. see 2007 Sim , where the claim of an Italian remittance marketing consultant hired by the bank overseas is governed by Philippine laws , applying Sec.10 , RA No. 8042 otherwise known as the ―Migrant Workers and Overseas Filipino Act of 1995‖ and thus her claim is withing the jurisdiction of the labor arbiter ; see also 2007 EDI-Staff Builders International , under the international law ―doctrine of presumed-identity approach or processual presumption,‖ when a foreign law is not pleaded or , even if pleaded , is not proved, the presumption is that the foreign law is the same as ours , Thus ,
we apply Philippine Labor Laws in determining the issues presented . O. dismissal of a female worker by reason of pregnancy considered violative of Art. 137, held in 2007 Del Monte Phil. P. two methods of determining wages under RA 6727 , held in 2007 Metropolitan Bank & Trust Co., a) floor wage method-fixing of determining amount to be added to the prevailing statutory minimum wage rates, e.g. setting P10.00 to be added ; and b) salary –ceiling method-wage adjustment is applied to employees receiving a certain denominated salary ceiling , e.g. wage order setting a specific salary , say , P250.00 , where only those earning below it shall be entitled to the salary increase ; when it issues a wage order, the RTWPB exercises quasi-legislative power , and not quasi-judicial power. The decision of the RTWPB is appealable to the NWPC and not to the Court of Appeals Q. waiver of overtime pay under a compressed workweek is valid, held in 2008 Bisig Manggagawa sa Tryco R. Suspension of Labor proceedings when employer is placed under rehabilitation , held in 2007 Phil. Airlines , citing Rubberworld S. 2006 Aboitiz Haulers, Inc., ― labor –only ―contracting exists when the following criteria are present: (a) where the person supplying workers to an employer does not have substantial capital or investment , (b) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer; and (c) the contractor does not exercise the right of control the performance of the work of the contractual employee. All three aforementioned criteria need not to be present. If the contractor enters into an arrangement characterized by any one of the criteria provided, this is ―labor-only‖ contracting.; see also 2007 Government Service & Insurance System , where the GSIS cannot evade liability by claiming it had fully paid the workers‘ salaries by incorporating in the security service contract the salary increases mandated by the wage orders by increasing the contract price of per guard . There is no double burden of paying twice for the worker‘s services, since under Art. 1217 of the Civil Code, if the GSIS should pay the monetary claims, it has the right to recover from the
contractor whatever amount it has paid , citing 1998 case of Rosewood Processing , Inc; T. Illegal contracting out of job of salesmen , the contractor having no substantial capital, only P625th paid up, held in 2009 CCBPI; the sales job is indispensable to business of CCBPI ; contractor is merely recruiter and supplier of workers ; DOLE registration as contractor not conclusive since registration of for janitorial service and not for selling ; contract failed to state what specific job subject of contracting ; CCBPI prescribed the criteria that contractor needs to follow ; workers used the tools of CCBPI ; contractor did not exercise control , and element of control is exercised by CCBPI based on the terms of the contract U. Cross-claim of contractor against the principal for reimbursement after being held jointly and severally liable is not a labor dispute and not within the jurisdiction of the labor arbiter , held in 2008 Jaguar Security and Investigation Agency , as there exists no employeremployee relationship , citing 2000 Lapanday Agricultural Development Corp., V. there is no law providing for commutation of unused or accrued sick leave credits in the private sector; it is allowed by way of voluntary endowment by and employer through a company policy or by a CBA, held in 2008 Phil. Airlines; E.O. No. 1077 on the computation of creditable vacation and sick leaves of government officers and employees, not applicable to PAL even if subsequently it was privatized. W. Art. 157 of the Code does not require employment of doctor as a regular employee , held in 2009 Escasinas where a doctor retained by hotel was not an employee but an independent contractor , cited 2005 Phil. Global Communication ; Note 2008 Calamba Medical Center, where a resident physician was considered and employee of hospital, applying the 4 fold test, as he was classified as non-training general practitioners , different from training resident physicians; see also 2006 Nogales, where a visiting physician or consultant of hospital considered an independent contractor-physician, and not an employee , citing 1999 Ramos case
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