Professional Documents
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Labor Standards - Azucena
Labor Standards - Azucena
capital & labor, by providing for certain standards of terms & conditions of
EENT or providing a legal framework w/in w/c these terms & conditions &
the EENT relationship may be negotiated, adjusted & administered.
2 Divisions of Labor Legislation
1. Labor Standards sets out the minimum terms, conditions & benefits of
EENT that EERS must provide or comply w/ & to w/c EES are entitled as a
matter of legal right.
- minimum requirements prescribed by existing laws, rules &
regulations relating to wages, hrs of work, cost-of-living allowance and
other monetary & welfare benefits, including occupational safety & health
standards.
- material or substance to be processed
2. Labor Relations defines the status, rights & duties and the institutional
mechanisms, that govern the indiv & collective interactions of EERS, EES,
or their representatives.
- mechanism that processes the substance
Labor physical toil although it does not necessarily exclude the application of
skill (thus skilled & unskilled labor)
Skill the familiar knowledge of any art/science, united w/ readiness &
dexterity in execution/performance or in the application of the art/science
to practical purposes.
Work (broader than labor) covers all forms of physical/mental exertion, or
both combined, for the attainment of some obj other than
recreation/amusement per se.
Worker (broader than EE) may refer to self-employed people & those
working in the service & under the control of another, regardless of rank,
title, or nature of work.
- any member of the labor force whether employed/unemployed
Employee a salaried person working for another who controls or supervises
the means, manner or method of doing the work.
Consti prol-labor, but recognizes the indispensable role of the private sector,
encourages private enterprise and provides incentives to needed
investments
Police Power as the Basis
-
Birth of the LC
Blas Ople - father of the LC
LC designed to be a dynamic & growing body of laws w/c will reflect
continually the lessons of practical application & experience
7 Principles Underlying the code
1. Labor relations must be made both responsive & responsible to
national devt
2. Labor laws/labor relations during a period of national emergency must
substitute rationality for confrontation; strikes or lockouts give way to
a rational process w/c is arbitration
3. Laggard justice in the labor field is injurious to the workers, the EERS &
the public; labor justice can be made expeditious w/o sacrificing due
process.
4. Manpower devt & EENT must be regarded as a major dimension of
labor policy, for there can be no real equality of bargaining power
under conditions of severe mass unemployment.
5. There is a global labor market available to qualified Filipinos, esp those
who are unemployed or whose EENT is tantamount to unemployment
bcoz of their very little earnings.
6. Labor laws must command adequate resources & acquire a capable
machinery for effective & sustained implementation; when labor laws
cannot be enforced, both EERS & the workers are penalized, & only a
corrupt few (those who are in charge of implementation) may get the
reward they dont deserve.
7. There shld be popular participation in national policy-making through
what is now called tripartism.
Concern for the Lowly Worker SC reaffirms its concern for the lowly worker
who, often at his EERs mercy, must look up to the law for his protection.
(Reason: the EER stands on higher footing than the EE: (1,) There is greater
supply than demand for labor; (2) the need for EENT by labor comes from
vital & even desperate necessity.)
Mgt Rights entitled to respect & enforcement in the interest of simple fair
play.
1. R to manage, control, and use his property & conduct business in a
manner satisfactory to himself (just discrimination in the rate of wages
paid to the skillful & to the unskillful, to the efficient & inefficient.)
2. R to prescribe rules (they become part of the contract of EENT)
3. R to select EES & to decide when to engage them, except as restricted
by statute or valid contract, at a wage & under conditions agreeable to
them.
4. R to transfer & discharge EES in order to minimize expenses & to insure
stability of the business & even to close the business, provided it is
done in good faith & due to causes beyond control.
Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the
administration & enforcement of this Code or any of its parts shall
promulgate the necessary IRRs. Such RRs shall become effective 15 days
after announcement of their adoption in the newspapers of gen. circulation.
Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall,
except as may otherwise be provided herein, apply alike to all workers,
whether agricultural or non-agricultural.
-
In all cases, the landowners may retain an area of not more than 7
hectares if such landowner is cultivating such area or will now cultivate it.
Art 9. [Determination of Land Value] For the purpose of determining the cost of
the land to be transferred to the tentant-farmer, the value of the land shall
be equivalent to 2 & times the average harvest of 3 normal crop yrs
immediately preceding the promulgation of PD 27 (OCT 21, 1972).
The total cost of the land, including interest at the rate of 6% per
annum, shall be pd by the tenant in 15 yrs of 15 equal annual
amortizations.
In case of default, the amortizations due shall be pd by the farmers
cooperative in w/c the defaulting tenant-farmer is a member, w/ the coop
having a right of recourse against him.
The govt shall guarantee such amortizations w/ shares of stock in govtowned & -controlled corps.
Art 10. [Conditions of Ownership] No title to the land acquired by the tenantfarmer under PD 27 shall be actually issued to him unless & until he has
become a full-fledged member of a duly recognized farmers coop.
Title to the land acquired pursuant to PD 27 or the Land Reform
Program of the Govt shall not be transferable except by hereditary
succession or to the Govt in accdance w/ the provisions of PD 27, the Code
of Agrarian Reforms & other existing laws & regulations.
Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate
the necessary rules & regulations to implement the provisions of this
Chapter.
*Land for the landless battlecry dramatizing the increasingly urgent demand
of the dispossessed for a plot of earth as their place under the sun.
*CARP Law signed by Cory, declaring full land ownership in favor of the
beneficiaries of the PD 27.
Share tenancy abolished, put the agricultural leasehold sys in its stead,
geared towards eventual ownership of land by its tillers
Consti - State shall undertake an Agrarian Reform Program, and encourage &
undertake the just distribution of all agri lands, subj to such priorities &
reasonable retention limits as the Congress may prescribe,
Compensation scheme: Sec 18 of CARP: Title to all expropriated properties
shall be transferred to the State only upon full payment of compensation of
their respective owners.
Retention Limits provided for by RA 6657 : as otherwise provided.. no
person may own/retain directly/indirectly, any public/private agri land, the
size of w/c shall vary accdg to factors governing a viable family-sized farm,
such as commodity produced, terrain, infrastructure, & soil fertility as
determined by the Presidential Agrarian Reform Council (PARC).
an increased output invariably gives more work to more men, & never
in the history of the world has it more than temporarily, and then for
only a very short time, diminished by the number of men at work in
any trade
2 kinds of funds: (1) the Revenue w/c is over & above what is
necessary for the maintenance; and (2) the Stock w/c is over & above
shat is necessary for the EENT of their masters.
The demand for those who live by wages necessarily increases w/
the increase of the revenue & stock of every country and cannot
increase w/o it. The increase of revenue & stock is the increase of
national wealth.
shall respect the R of small landowners & shall provide incentives for
voluntary land-sharing
shall recognize the R of farmers, farm workers & landowners, as well as
cooperatives & other independent farmers org, to participate in the
planning, org, & mgt of the program & shall provide support to
agriculture though tech & research & financial, production, marketing &
other support services
may resettle landless farmers & farm workers in its own agricultural
estates
shall encourage the formation & maintenance of economic-sized family
farms to be constituted by indiv beneficiaries & small landowners
shall protect the Rs of subsistence fishermen to the preferential use of
communal marine & fishing resources both inland & offshore
shall provide support to such fishermen thru appropriate tech &
research, adequate financial, production & marketing assistance
shall protect offshore fishing grounds of subsistence fishermen against
foreign intrusion. Fisherworkers shall redeive a just share from their
labor in the utilization of marine & fishing resources
owners of agri land have the oblig to cultivate directly or thru labor
admin the lands they own & thereby make the land productive.
Shall provide incentives to landowners to invest the proceeds of the
agrarian reform prog to promote industrialization, EENT & privatization
of pub sector enterprises
May lease undeveloped lands of pub domain to qualified entities for the
devt of capital-intensive farms, traditional & pioneering crops esp those
for export (subj. to Rs of beneficiaries)
Definitions
1. Agrarian Reform the redistribution of lands, regardless of crops/fruits
produced, to farmers & regular farm workers who are landless,
irrespective of tenurial arrangemt, to include the totality of factors &
support services designed to lift the economic status of the
beneficiaries and all other arrangemts alternative to the physical
redistribution of lands (production or profit-sharing, labor admin,
distribution of shares of stock)
2. Agriculture, Agricultural Enterprise or Agricultural Activity the
cultivation of the soil, planting of crops, growing of fruit trees, incl. the
harvesting of such farm products, & other farm activities
3. Agricultural land land devoted to agricultural activity, and NOT
classified as mineral, forest, residential, commercial or industrial land
4. Agrarian Dispute any controversy relating to tenurial arrangements,
whether leasehold, tenancy, stewardship or otherwise, over lands
devoted to agri
- including disputes concerning farm workers
assocs, or representation of persons in negotiating, fixing, maintaining,
changing or seeking to arrange terms of conditions of such tenurial
arrangements
- including controversy relating to compensation of
lands acquired under this Act & other terms & conditions of transfer of
ownership from landowners to farm workers, tenants & other agrarian
reform beneficiaries
5. Idle / Abandoned Land any agricultural land not cultivated, tilled or
developed to produce any crop nor devoted to any specific economic
purpose continuously for a period of 3 yrs immediately prior to the receipt
of notice of acquisition by the govt
Multinational Corps all lands of the pub domain leased, held, or possessed by
multi corps or assocs, and other lands owned by the govt, or govt-owned/controlled corps, assocs, institutions or entities, devoted to existing &
operational agribusiness or agro-industrial enterprises, operated by
multicorps shall be programmed for acquisition & distribution immediately
upon effictivity
Ancestral Lands shall include, but not limited to, lands in the actual,
continuous & open possession & occupation of the community and its
members, provided that the Torrens System shall be respected
-
colonies & penal farms actually worked by inmates, got & private
research & quarantine centers and all lands w/ 18% slope and over,
except those already developed
Procedure for Acquisition of Private Lands
1. After having identified the land, the landowners & beneficiaries, DAR
shall send its notice to acquire the land to the owners;
2. w/in 30 days from date of receipt, landowners shall inform the DAR of
his acceptance/rejection of the offer;
a. if landowner accepts the offer, the LBP shall pay the landowner
of the purchase price of the land w/in 30 days after he executes
& delivers a deed of transfer in favor of the Govt and surrenders
the Cert of Title
b. in case of rejection or failure to reply, DAR shall conduct
summary admin proceedings to determine compensation of the
land
3. upon receipt of the landowner of the payment, or in case of rejection or
no response fr the landowner, upon the deposit w/ an accessible bank
or the compensation, the DAR shall take immediate possession of the
land & shall request the Register of Deeds to issue a TCT in the name
of the RP.
4. Any party who disagrees w/ the decision may bring the matter to the
court
Corporate Farms
-
State shall recognize & enforce the Rs of rural women to own & control
land
State shall provide incentives to landowners to invest the proceeds of
the agrarian reform prog to promote industrialization, EENT &
privatization of the pub sector enterprises
Added Definition
1. Rural women women who are engaged directly/indirectly in farming
and/or fishing as their source of livelihood, whether paid or unpaid,
regular or seasonal, or in food preparation, managing the household,
caring for the children, & other similar activities
2. Landless beneficiary one who owns less than 3 hectares of agri land
Landicho v Sia
Facts:
2)
3)
4)
5)
6)
PRE-EMPLOYMENT
Art 12. It is the policy of the State:
1. to promote and maintain a state of full employment through improved
manpower training, allocation and utilization;
2. to protect every citizen desiring to work locally/overseas by securing
for him the best possible terms and condition of employment;
3. to facilitate a free choice of available employment by persons seeking
work in conformity with the national interest;
4. to facilitate & regulate the movement of workers in conformity w/ the
national interest;
5. to regulate the employment of aliens, including the establishment of a
registration and/or work permit system;
6. to strengthen the network of public employment offices and rationalize
the participation of the private sector in the recruitment and placement
of workers, locally and overseas, to serve national development
objectives;
7. to insure careful selection of Filipino workers for overseas employment
in order to protect the good name of the PH abroad.
The DOLE
-
The decisions of the regional offices of the BES if so authorized by the Sec
of DOLE shall be appealable to the NLRC upon the same grounds provided
in Art 233 hereof.
The decisions of the NLRC shall be final & unappealable.
Minister of Labor has the power to impose & collect fees, based on rates
recommended by the BES. Such fees shall be deposited in the National
Treasury as a special acct of the General Fund, for the promotion of the
objectives of the BES, subj to the provisions of Sec 40 of PD 1177.
Jurisdiction of POEA
1. all cases w/c are administrative in character, involving or arising out of
violations of rules & regulations relating to licensing & registration of
recruitment and employment agencies/entities; and
2. disciplinary action cases and other special cases w/c are administrative
in character, involving EERS, principals, contracting partners and
Filipino migrant workers
3. NO jurisdiction to enforce foreign judgment (must be brought before
the regular courts). POEA is an administrative (not a court), exercising
adjudicatory or quasi-judicial functions
4. NO jurisdiction over torts
Grounds for Disciplinary Action
1. Commission of a felony punishable by Ph laws or by the laws of the
host country;
2. Drug addiction/possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
4. Drunkenness, esp where the laws of the host country prohibit
intoxicating drinks;
5. Gambling, esp where the laws of the host country prohibits the same;
6. Initiating/joining a strike or work stoppage where thelaws of the host
country prohibit strikes or similar actions;
7. Creating trouble at the worksite or in the vessel;
8. Embezzlement of company funds or of moneys and properties of a
fellow worker entrusted for delivery to kins or relatives in the PH;
9. Theft/robbery;
10. Prostitution;
11. Vandalism or destroying company property;
12. Gunrunning or possession of deadly weapons;
13. Unjust refusal to depart for the worksite after all employment and
travel documents have been duly approved by the approp govt
agency/ies; and
14. Violation/s of the laws and sacred practices of the host country and
unjustified breach of govt-approved EENT contract by a worker
COMPROMISE AGREEMENT
-consistent w/ the policy encouraging amicable settlement of labor disputes
Sec 10 of RA 8042 allows resolution by compromise of cases filed w/ the NLRC
- any compromise agreement on money claims inclusive of damages shall be
paid w/in 4 months from the approval of the settlement
Penalties for Non-compliance of the mandatory period for resolution of
cases
1. The salary of such official who fails to render his decision/resolution
w/in the prescribed pd shall be, or caused to be, withheld until such
official complies therewith;
2. Suspension for not more than 90 days; or
3. Dismissal w/ disqualification to hold any appointive public office for
5 yrs
a. Filipino citizens; or
b. Corporations, partnerships or entities at least 75% of the
authorized and voting capital stock of w/c is owned & controlled
by Filipino citizens.
2. Capitalization
a. Private EENT agency for local EENT
i. For single proprietorship or partnership minimum net
worth of 200k pesos
ii. For corporations a minimum paid up capital of 5ook
pesos
b. Private recruitment or manning agency for overseas EENT
i. For single proprietorship or partnership P2M minimum
capital
ii. For corps P2M minimum paid up capital, Provided, that
those w/ existing licenses shall, w/in 4 yrs from
effectivity hereof, increase their capitalization or paid-up
capital, as the case may be, to P2M at the rate of 250K
every yr.
3. Those not otherwise disqualified by law or other govt regulations to
engage in the recruitment & placement of workers for overseas EENT
Disqualified from Recruitment & Placement of Workers for Overseas EEnt
whether for profit or not
1. Travel agencies & sales agencies of airline companies;
2. Officers/members of the board of any corp or members in a partnership
engaged in the business of a travel agency;
3. Corps & partnerships, when any of its officers, members of the board or
partners, is also an officer, member of the board or partner of a corp or
partnership engaged in the business of a travel agency (interlocking
officers)
4. Persons, partnerships or corps which have derogatory records, such as
but not limited to:
a. Those certified to have derogatory record/info by the NBI or by
the Anti-illegal Recruitment Branch of the POEA;
b. Those against whom probable cause or prima facie finding of
guilt for illegal recruitment or other related cases exists;
c. Those convicted of cases and/or crimes involving moral
turpitude;
d. Those agencies whose licenses have been previously cancelled
or revoked by POEA for violation of RA 8042, PD 442 as
amended and their IRR as well as the Labor Codes IRR
e. Officials/EES of the DOLE or other govt agencies directly
involved in overseas EENT program and their relatives w/in the
4th degree of consanguinity or affinity; and
f. Those whose License have been previously cancelled o revoked
Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY
1. It may be used only b the one in whose favor it was issued; hence, it
cannot be assigned, conveyed or transferred to any other
person/entity.
2. It must be used only in the place stated in the license. Thus, could only
undertake recruitment & placement activities in the region where the
license was granted.
Prescriptive Period
5 yrs
20 yrs
Imprisonment Fine
12-20 yrs
P1-2M
Life
P2-5M
Note: Max penalty if the person illegally recruited is less than 18 y/o or
committed by a non-licensee or non-holder of authority
Absence of receipts evidencing payment, not fatal to prosecutions case for
illegal recruitment as long as the witnesses can positively show through
their respective testimonies that the accused is the one involved in
prohibited recruitment
Liability of Local EEnt agency solidarily liable w/ the foreigh principal for
unpaid salaries of a worker recruited. Before recruiting, the agency is
required to submit a doc containing its power to sue and be sued jointly
and solidarily w/ the principal or foreign-based EER for any of the violations
of the recruitment agreement and the contracts of EEnt
Liability of Company Engaged in Illegal Recruitment may be held as
principal, together his EER, if it is shown that he actively & consciously
participated in illegal recruitment
Issuance of search warrant/warrant of arrest
Art 38 is unconstitutional inasmuch as it gives the Sec of Labor the
power to issue search or arrest warrants
The exception is in cases of deportation whom the President or the
Commissioner of Immigration may order arrested, following a final
roder of deportation
Note: the Sec of Labor may order closure of illegal recruitment
establishments because it is only administrative & regulatory in nature
TITLE 2: EMPLOYMENT OF NON-RESIDENT ALIENS
Alien Employment Permit (AEP) required for entry into the country for
employment purposes and is issued after determination of the nonavailability of a person in the pH who is competent, able and willing at the
time of application to perform the services for w/c the alien is desired
All foreign nationals who intend to engage in gainful EENT in the PH
shall apply for AEP
Employment Permit Required
1. all foreign nationals seeking admission to the PH for the purpose of
EENT;
2. all non-resident foreign nationals already working in the PH;
3. non-resident foreign nationals admitted to the PH on non-working visas
and who wish to seek EENT; and
4. missionaries or religious workers who intend to engage in gainful EENT.
Note: AEP should be secured regardless of the source of compensation and
duration of the EENT, whether the EENT is part-time or temp
An AEP is issued based on the ff:
1. Compliance by the applicant EER or the foreign national w/ the
substantive & documentary requirements;
2. Determination of DOLE Sec that there is no available Filipino national
who is competent, able and willing to do the job for the EER; and
3. Assessment of the DOLE Sec that the EENT of the foreign national will
redound to national benefit
particularly the recruitment and deployment of OFWs, with the noble end in
view of ensuring respect for the dignity and well-being of OFWs wherever they
may be employed.
On the second issue.
The answer is in the affirmative.
To Filipino workers, the rights guaranteed under the foregoing constitutional
provisions translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies
to all OFWs. However, a closer examination reveals that the subject clause has
a discriminatory intent against, and an invidious impact on, OFWs at two
levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs
with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis--vis local workers with fixed-period employment;
The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is
violative of the right of petitioner and other OFWs to equal protection.
The subject clause or for three months for every year of the unexpired term,
whichever is less in the 5th paragraph of Section 10 of Republic Act No. 8042
is DECLARED UNCONSTITUTIONAL.
People of the Philippines (petitioner) v Jamilosa (repondent)
GR No. 169076 January 23, 2007
Callejo, Sr.,:
FACTS:
Sometime in the months of January to February, 1996, representing to
have the capacity, authority or license to contract, enlist and deploy or
transport workers for overseas employment, did then and there, willfully,
unlawfully and criminally recruit, contract and promise to deploy, for a fee the
herein complainants, namely, Imelda D. Bamba, Geraldine M. Lagman and
Alma E. Singh, for work or employment in Los Angeles, California, U.S.A. in
Nursing Home and Care Center.
or abroad, whether for profit or not. Provided, That any person or entity which,
in any manner, offers or promises for a fee employment to two or more
persons shall be deemed engaged in recruitment and placement.
Illegal recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers and includes
referring, contract services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by a non-licensee or non-holder of
authority. Provided, That any such non-licensee or non-holder who, in any
manner, offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged.
To prove illegal recruitment in large scale, the prosecution is burdened
to prove three (3) essential elements, to wit: (1) the person charged undertook
a recruitment activity under Article 13(b) or any prohibited practice under
Article 34 of the Labor Code; (2) accused did not have the license or the
authority to lawfully engage in the recruitment and placement of workers; and
(3) accused committed the same against three or more persons individually or
as a group. As gleaned from the collective testimonies of the complaining
witnesses which the trial court and the appellate court found to be credible
and deserving of full probative weight, the prosecution mustered the requisite
quantum of evidence to prove the guilt of accused beyond reasonable doubt
for the crime charged. Indeed, the findings of the trial court, affirmed on
appeal by the CA, are conclusive on this Court absent evidence that the
tribunals ignored, misunderstood, or misapplied substantial fact or other
circumstance.
The failure of the prosecution to adduce in evidence any receipt or
document signed by appellant where he acknowledged to have received
money and liquor does not free him from criminal liability. Even in the
absence of money or other valuables given as consideration for the
"services" of appellant, the latter is considered as being engaged in
recruitment activities.
It can be gleaned
from the language of Article 13(b) of the Labor Code that the act of
recruitment may be for profit or not. It is sufficient that the accused
promises or offers for a fee employment to warrant conviction for illegal
recruit
CONDITIONS OF EMPLOYMENT
WORKING CONDITIONS & REST PERIODS
Art 82. COVERAGE
a. ALL employees in all establishments & undertakings whether for
profit or not
b. Such standards apply only if there exists EER-EE relationship
EXCEPTIONS on Conditions of EEnt
i.
Government employees EES of govt agencies &
govt corps
ii.
Managerial employees those whose primary duty
consists of the mgt of the establishment in w/c they are
employed or of a dept/subd thereof, and to other
officers/members of the managerial staff
- under the direct supervision of the EER, and assist in the planning,
organizing, staffing, directing controlling, communicating and in
making decisions in attaining the companys set goals & objectives
Employee any person who performs services for an EER in w/c either or both
mental & physical efforts are used and who receives compensation for such
services, where there is an EER-EE relationship
TESTS OF EENT Relship:
i.
Right of Control Test where the person for whim the
services are performed reserves a right to control not
only the end to be achieved but also the means to be
sued in reaching such end.
Plus: the courts added the existing economic conditions prevailing bet the
parties (like payrolls) in determining the existence of EER-EE Relship.
ELEMENTS OF EE-EER
i.
ii.
iii.
iv.
Pre/Postliminary Activities
j. Preliminary (before work) and postliminary (after actual work)
activities are deemed performed during working hrs, where such
activities are controlled/required by the ER and are pursued
necessarily & primarily for the ERs benefit
Waiting Time
k. whether waiting time constitutes working time depends on the
circumstances on each particular case
l. controlling factor is WON time spent in idleness is so spent
predominantly for the ERs benefit or for the EEs
1. Engaged to Wait waiting time spent by EE shall
be considered as working time if waiting is
considered an integral part of his work or if the EE
is required/engaged by an ER to wait
2. Waiting to Engage idle time is not work time
Working While Eating
GR: EE must be completely relieved from duty for the purpose of eating
regular meals. The meal time is not compensable if he is completely free
from duties during his meal period even though he remains in the
workplace.
EE is not relieved if he is required to perform his duties whether
active/inactive, while eating (ex. Stand-by for emergency work)
Working While Sleeping
2.Agreed legal wage rate and OT pay computed separately are equal or
higher than the separate amounts legally due
FLEXIBLE WORK ARRANGEMENTS
- alternative work arrangements or schedules other than the traditional or
standard work hrs, workdays or workweek. ERs may adopt them after
due consultation w/ EEs, taking into acct the adverse consequence of
the situation on the performance and financial condition of the
company.
- Its effectivity and implementation shall be temporary.
- Should be threshed out by the ER and EE
- DOLE Reg Ofc must be notified prior to implementation
- In addition to CWW, the FWAs include:
1. Reduction of workdays where normal workdays per week are
reduced but should not last for more than 6 months
2. Rotation of workers where the EEs are rotated/alternately
provided work w/in the workweek
3. Forced leave EEs are required to go on leave for several days
or weeks, utilizing their leave credits if there are any
4. Broken-time schedule the work schedule is not continuous but
the number of hrs w/in the day or week is not reduced
5. Flexi-holiday schedule Ees agree to avail themselves of the
holidays at some other days, provided that there is no
diminution of existing benefits as a result of such arrangement
Art 88. UNDERTIME NOT OFFSET BY OVERTIME
- Whether on the same day or any other day is prohibited by law
- Permission given to the EE to go on leave o some other day of the week
shall not exempt ER from paying the addtl compensation
Reason: EEs hourly rate is not equivalent to OT rate
Proper method: Deduct the UT from the accrued leave, if any
Art 89. EMERGENCY OT WORK
GR: EEs cannot be compelled to render OT work against their will
Exceptions:
1.In times of war or any national or local emergency declared by
Congress/Chief Exec;
2.To prevent loss or damage to life or property due to emergencies and
force majeure;
3.When there is urgent work needed on machines & equipment;
4.When work is necessary to preserve perishable goods;
5.To prevent serious obstruction or prejudice to the business or operations
of the ER; and
6.When it is necessary to avail of favorable weather or environmental
conditions where performance or quality f work is dependent thereon.
Art 90. COMPUTATION OF ADDTL COMPENSATION
cash wage excludes noncash value of facilities
- if only cash wage is the basis of OT rate, it is unfair to the worker
because as defined in Art 97, wage includes the value of facilities,
hence the value of facilities should not be excluded when computing
OT pay
Regular Holiday
Compensable even if
unworked subj to
certain conditions
Limited to the list
enumeration
Rate is 200% of the
regular rate if worked
Special Day
Not compensable if
unworked
Not exclusive since a
law or ordinance may
provide for other
special holidays
Rate is 130% of the
regular wage if worked
GR: for a company w/ a 5-day working schedule, the divisor 261 means that
the holiday pay is already included in the montly salary of the EE
Holiday pay of Teaching Personnel Paid per Lecture Hr
- not entitled to payment of holiday pay since they are paid by the hrs
worked; and no class days means no work for them
- entitled to their regular hourly rate on days declared as special holidays
or when classes are called off or shortened on acct of typhoons, floods
rallies, and the like
Double Holiday Pay (Araw ng Kagitingan & Good Friday on the same day)
1.200% of the basic wage
a. entitled even if said holiday is unworked
b. to give EE only 100% would reduce the number of holidays
under the law
2.400% if he worked on 2 regular holidays falling on the same day
3.520% if he worked on 2 regular holidays falling on the same day and at
the same time falling on a scheduled rest day
Single Holiday Rule: provided that the EE
1.worked;
2.was on leave w/ pay; or
3.was on authorized absence on the day prior to the regular holiday.
Successive Regular Holidays: to be entitled to 2 successive holidays, the EE
must:
1.be present on the day immediately preceding the first holiday; or
2.be on leave w/ pay.
Otherwise, he must work on the first holiday to be entitled to holiday
pay on the second regular holiday
Effects of Business Closure on Holiday Pay
If regular holiday occurs during:
1.Temporary or periodic shutdown and temporary cessation of work of an
establishment the regular holidays falling w/in the period shall be
compensated.
2.Cessation of operation of an enterprise due to business reverses as
authorized by the Sec of Labor the regular holiday may not be paid
by ER
Ch 95. RIGHT TO SERVICE INCENTIVE LEAVE (SIL)
Concept: 5 days leave w/ pay for every EE who has rendered at least 1 yr of
service
1 yr of service service w/in 12 months, whether continuous or broken,
reckoned from the date the EE started working including authorized
absences and paid regular holidays unless the number of working days in
the establishment as a matter of practice/policy is less than 12 months
SIL is N/A to the ff:
1.EEs of the Govt
2.Domestic helpers and persons in the personal service of another;
3.Managerial EEs
4.Field personnel whose performance is unsupervised or those who are
paid a fixed amt for performing work irrespective of the time consumed
in the performance thereof
5.Those already enjoying the said benefits
6.Those already enjoying vacation leave w/ pay for at least 5 days;
7.Those employed in establishments regularly employing less than 10 EEs
* EEs engaged on task/contract basis or paid purely commission basis are
not automatically exempted from the SEL unless they fall under the
classification of field personnel.
Conversion to Monetary Equivalent
SIL is COMMUTABLE or convertible to cash if not used or exhausted at the end
of the yr
Basis of conversion: the salary rate at the date of commutation
ALSO Entitled to SIL
1.EE illegally dismissed
2.Part-time workers
3.Piece-rate workers:
a. Working inside the premises of ER & thus are under direct
supervision of the ER entitled
b. Working outside the premises of the ER whose hours of work
cannot be ascertained w/ reasonable certainty and thus are not
under the direct supervision of the ERnot entitiled
EEs w/ salaries above Min Wage: the difference bet the min wage and the
actual salary received by the EEs cannot be deemed as their 13th month
pay and SIL pay
Vacation & Sick Leave
- not statutorily required but is a matter of management discretion or CBA
GR: Benefits are non-cumulative and non-commutative; must be enjoyed
by the EE w/in 1yr otherwise forfeited
: when the labor law contract or the established practice of the ER
provides otherwise
SIL
Mandatory Art 95
Intended to alleviate
the economic condition
of the workers for it
acts as replacement for
regular income that
would not be earned
during such instance
Cannot be waived
VL/SL
Voluntary grant (ERs
policy or CBA)
Intended to afford a
laborer a chance to get
a much needed rest to
replenish his energy
and renew his
efficiency
Must be demanded in
its opportune time;
silence is waiver
Commutable
Not commutable
Title 2 WAGES
Ch 1
Art 97. Definitions
Person an individual, partnership, assoc, corp, business trust, legal rep, or
any organized group of persons
Employer any person acting directly/indirectly in the interest of an ER in
relation to an EE & shall include the Govt & all its branches, subd, &
instrumentalities, all govt-owned/-controlled corps & institutions, as well as
non-profit private institutions/orgs.
Employee - any indiv employed by an ER
Agriculture includes farming in all its branches, and among other things,
includes the cultivation & tillage of soil, dairying, the production,
cultivation, growing & harvesting of any agricultural & horticultural
commodities, the raising of livestock or poultry, and any practices
performed by a famer on a farm as an incident to or in conjunction with
such farming operations, but does not include the manufacturing or
processing of sugar, coconuts, abaca, tobacco, pineapples or other farm
products.
Employ includes to suffer or permit to work
Wage paid to any EE; shall mean the renumeration or earnings, however
designated, capable of being expressed in terms of money, whether fixed
or ascertained on a time, task, piece, or commission basis, or other method
of calculating the same, w/c is payable by and ER to an EE under a
written/unwritten contract of ENT for work done or to be done, or for
services rendered and includes the fair and reasonable value, as
Fair & reasonable value shall NOT include any profit to the ER or to any
person affiliated w/ the ER
WAGES
SALARY
Compensation for
Denotes a higher
manual labor,
degree of ENT, or a
skilled/unskilled, paid
superior grade of
at stated times, and
services, and implies a
measured by the day,
position or office
week, month, or season
Indicates considerable
Suggestive of a larger
pay for a lower and less and more permanent or
responsible character
fixed compensation for
of ENT
more important service
Has a less extensive
Compensation of
meaning than salary;
clerks, officers of pub
being ordinarily
corps, and pub offices
restricted to sums paid
as hire or reward to
domestic or menial
servants and to sums
paid to artisans,
mechanics, laborers,
and other EEs of like
class
In many situations, however, and as the SC
states, they are in essence synonymous
FACILITIES
Include articles or
services for the benefit
of the EE or his family
but shall NOT include
tools of the trade or
articles or service
primarily for the benefit
of the ER or necessary
to the conduct of the
ERs business
Wage-deductible
Benefit/privilege part of
the laborers basic
wages,
SUPPLEMENTS
Not wage-deductible
Benefit/privilege given
to the EE w/c
constitutes an extra
renumeration above &
over his basic or
ordinary earning or
wage
The distinction bet a facility & a supplement is in
the purpose, (not the kind) of the item.
State Marine Corp & Royal Line, Inc. v Cebu Seamens Assoc, inc: The vessel
crew were provided w/ free meals by the ship owners (petitioner), not part
Industrial Work
When the harvests are
processed into finished
product or transformed
to another product
Higher rate
(industrial EEs)
Agricultural Activities
Preparation of the soil, planting of ramie stalks and transporting
them to the stripping sheds, stripping the fibers w/ the use of
decorticating machines run by electricity, drying the wet fibers,
passing them through the brusher to cleanse them of impurities and
baling the fiers for the market
Planting & harvesting sugar cane & other chores incidental to
ordinary farming operations
Tillage of the soil, raising of crops including discovery of plant pests
and their eradication by means of insecticides
Fishpond business
farmhands employed to cultivate the vegetable garden of a nonagricultural corp are not agricultural workers
Art 98. This title shall NOT apply to:
1. Farm tenancy or leasehold;
2. Domestic service
3. Persons working in their respective homes in needle work or
4. In any cottage industry duly registered in accordance w/ law.
Ch 2 MINIMUM WAGE RATES
Art 99. The minimum wage rates for agricultural and non-agricultural
EEs and workers in each and every region of the country shall be
those prescribed by the Regional Tripartite Wages and Productivity
Boards
Statutory Minimum Wage the lowest wage rate fixed by law that an ER
can pay his workers. Compensation w/c is less than such minimum rate is
considered an underpayment that violates the law.
- determined for each region by the regional wage boards
- provided w/ margin to take care of contingencies, such as increase of
prices of commodities and increase in wants and to provide means for a
desirable improvement in EEs mode of living (A persons needs
increase as his means increase.)
Effects:
1. benefits all wage earners by setting a floor below w/c their pay
cannot fall
Food/Meal Allowance
Cebu Autobus Co v United Cebu Autobus EEs Assoc: the company used
to pay its drivers and conductors, aside from their regular salary, a
certain percentage of their daily wage, as allowance for food.
Discontinued by ER upon effectivity of Minimum Wage Law. CIR:
company practice
Nonconributory Retirement Plan
Nestle PH Inc. v NLRC: The fact that the retirement plan is
noncontributory, does not make it a nonissue in the CBA negotiations.
The EEs have a vested right over the existing benefits voluntarily
granted to them by their ER. The latter may not unilaterally withdraw,
eliminate or diminish such benefits.
Monthly Emergency Allowance
R. Tiangco & V. Tiangco v Hon. Leogardo: ERs, fishing operator and
fishbroker, discontinued paying the batillos (who work by unloading
the fish from the vessels dependent on arrival of the vessels, hence
they work only a few days a month averaging 4 hrs a day) a fixed
monthly emergency allowance (which they had been paid as a matter
of practice/verbal agreement) illegal.
Full 13th month pay
Arco Metal Products v Samahan ng Manggagawa: ER cannot shrink
away from its responsibility by merely claiming that its acts of giving
full 13th month pay to EEs who have not worked for the full year is a
mistake. It has become practice.
4.
5.
6.
7.
WON bonus forms part of wages: depends on the circs and conditions for its
payment.
a. If it is an addtl compensation w/c the ER promised and agreed to
give w/o any conditions imposed for its payment, such as success of
business or greater production or output, then it is part of the wage.
b. If it is paid only if profits are realized on a certain amt of productivity
achieved, it cannot be considered part of the wages.
c. Where it is not payable to all but only to laborers and only when the
laborer becomes more efficient or more productive, it is only an
inducement for efficiency, a prize therefor, not a part of the wage.
Luzon Stevedoring Corp case: An ER cannot be forced to distribute
bonuses w/c it can no longer afford to pay. To hold otherwise would
be to penalize the ER for his past generosity.
American Wire & Cable Daily Rated EEs Union v AWC Co Inc & the CA:
For a bonus to be enforceable, it must have been promised by the ER and
expressly agreed by the parties, or it must have had a fixed amt and had
been a long and regular practice on the part of the ER.
the bonus, if the EE has served during the stipulated time, on the
ground that it was a promise of mere gratuity.
Services Rendered as Basis of Bonus
- EEs whose ENT has been terminated may still demand paymt of service
under company policy and of the bonuses. The R is not defeated by a
release & quitclaim
- LG Marcos v NLRC & Insular Life: The fact that an EE has signed a
satisfaction receipt for his claims does not necessarily result in the
waiver thereof. The law does not consider as valid any agreement
whereby a worker agrees to receive less compensation than what he is
entitled to recover. A deed of release or quitclaim cannot bar an EE from
demanding benefits to w/c he is legally entitled.
No Profit, No Bonus
-
Traders Royal Bank v NLRC: The matter of giving the EEs bonuses
over & above their lawful salaries & allowances is entirely dependent on
the profits, if any, realized by the bank from its operations during the
past year. Since the fiscal condition having declined, the bank may not
be forced to distribute bonuses w/c it can no longer afford to pay and, in
effect, be penalized for its past generosity to its EEs.
Productivity Incentives - bonus that comes from productivity gain, or
improved output without increasing input
- RA 6971: EEs share is in the nature of salary bonus proportionate to
increases in current productivity over the average for the preceding 3
consecutive yrs
- Not gratuitous; it is a benefit claimable only on the basis of predefined
output level
- Contingent/conditional; if they are not given because the preconditions
are absent, Art 100 is not violated except perhaps if there is
contractual commitment to the contrary.
Fringe benefits all allowances & monetary benefits w/c are not
considered/integrated as part of the basic salary
The items excluded by the decree may be included through established
practice or agreement binding on the ER
Q: Are commissions included in the computation?
A: It depends.
1. If the commissions may properly be considered part of the basic
salary, they should be included in computing the 13THMP
Ph Duplicators Inc v NLRC: the sales commission earned by the
sales men constitute part of their compensation, considering that
the ER pays them a small fixed/guaranteed wage; the greater part
being composed of the sales/incentive commissions earned on
actual sales closed by them
Sales commissions are intimately related or directly proportional to
the extent or energy of an EEs endeavors; paid upon the specific results
achieved by a salesman-EE; it is a percentage of the sales closed by a
salesman & operates as an integral part of such salesmans bsic pay.
2. If they are NOT integral part of the basic salary, then they shld be
excluded.
Boie-Takeda Case: the commissions paid to medreps were excluded
from the term basic salary because these were paid to them as
productivity bonuses. They are generally tied to the productivity or
capacity for revenue production of a corp; such bonuses closely
resemble profit-sharing payments and have no clear direct or
necessary relation to the amt of work actually done by each indiv
EE.
The commissions pd by Boie to its medreps could not have been
sales commissions. Medreps are not salesmen; they do not effect
any sale of any article at all. They are EEs engaged in the promotion
of pharmaceutical products or med devices manufactured by their
ER. They promote such products by visiting identified physicians &
inform such physicians orally/w/ the aid of brochures, of the
existence & chem composition of the pharma product. The addts
payments given to them were not in fact commissions but rather in
the nature of profit-sharing bonuses.
commission basis) are entitled to 13thMP on both their fixed & guaranteed
wage and commission
in the case of a bus conductor paid on commission only as supported by
his pay slips w/c indicated the varying amount of commissions he received
each trip not included in 13THMP
Q: Is Teachers Overload Pay Included?
A: Yes. It is considered part of their basic pay for the purposes of computing
13thMP
GR: Payments for overload work w/in 8 hrs form part of the basic wage, &
therefore are to be included in the computation of 13thMP.
Overload the load in excess of the normal load of private school teachers as
prescribed by the DECS or the policies, rules & standard of particular private
schools.
Normal load- 8hrs per working day
Overload work Overtime work
Overtime work
Overload work
Work rendered in
May be performed
excess of the normal
either w/in or outside 8
working hrs of 8 in a
hrs in a day
day
Proportionate 13thMP
- an EE who has resigned or was dismissed at any time before the time
for payment of the 13thMP is entitled to this monetary benefit in
proportion to the length of time he worked during the year. unless
otherwise stipulated in the CBA
Distressed Employer exempted from paying 13thMP upon prior
authorization from the Sec of DOLE
Difference of opinion in the computation of 13thMP is a nonstrikeable issue. a
strike held on this ground is illegal.
Govt Employees not covered by 13thMP
Seafarers not covered by 13thMP; because they are contractual, not
regular EEs. Their ENT is governed by their Contract of Enlistment w/c was
approved by the POEA. It does not provide for 13thMP.
Workers paid by results workers whose pay is calculated not on the basis of
time spent on the job but of the quantity & quality or the kind of work they
turn out. (nontime work).
- stress is placed on the unit of work produced or the quantity thereof
- a uniform amount is paid per unit accomplished
Categories of Piece-rate workers
A. As to presence of control
1. those whose time & performance is supervised by the ER;
piece-rate workers, esp when they work in company premises
(shoes, handicraft, garment)
2. those whose time & performance is unsupervised by the ER.
Pakyaw & takay basis commonly practiced in the agricultural
industry (planting, harvesting per hectare of land)
Pakyaw
Piece-rate
More aptly used when
Common where the
the job/work to be
output may easily be
performed is in
counted or measured
bulk/volumes w/c are
difficult to quantify
*Payment by result is not determinative of EE-ER Relship. It is merely a
method of compensation and does not define the essence of the relation.
Basis of Output Rate; Process to set the Standard
1. On petition of any interested party, or upon its initiative, the DOLE shall
use all available reps of ERs & workers orgs, to determine whether the
EEs in any industry/enterprise are being compensated in accordance w/
the min wage reqmts
2. The basis for the establishment of rates per pc, output or contract work
shall be the performance of an ordinary worker of min skill/ability.
3. An ordinary worker of min skill/ability is the average worker of the
lowest producing group representing 50% of the total # of EEs engaged
in similar ENT in a particular establishment, excluding learners,
apprentices & handicapped workers employed therein.
4. Where the output rates established by the ER do not conform w/ the
standards prescribed herein, or w/ the rates prescribed by the DOLE in
an approp order, the EEs shall be entitled to the diff bet the amt to w/c
they are entitled to receive under such prescribed standards/rates and
that actually paid them by the ER.
B. As to Rate of Payment
1. Those who are paid piece rates w/c are prescribed in Piece Rate Orders
issued by DOLE
# of pieces x rate per pc
- these workers are not covered by the Rule on Hours of Work (no
premium & OT pay)
2. Those who are paid output rates w/c are prescribed by the ER and are
not yet approved by the DOLE.
3. Paid on pakyaw
4. Paid on task basis if their output rates are in accordance w/ the
standards under Sec 8 Rule 7 Book 3, or where such rates have been
fixed by the Sec of Labor
Benefits Payable to Piece-Rate Workers
1. Statutory minimum wage (MW)
2. Yearly service incentive leave of 5 days w/ pay (SIL)
3. Night shift differential (ND)
4. Holiday pay (HP)
5. Meal & rest periods (Meal/rest)
6. Overtime pay (conditional) (OT)
7. Premium pay (conditional) (PP)
8. 13thMonth pay (13th)
9. other benefits granted by law, by indiv/CBA or company policy/practice
(CBA)
BWC Guidelines Summary
The rate-per-pc to be paid to a worker should be submitted to DOLE for
approval.
DOLE decides whether the outpu-and-pay proposal of the ER fairly &
reasonably meets the legal MW, based on the output of ave. workers
doing same products under comparable conditions.
If DOLE approves the proposal it becomes the standard (quota).
Because the DOLE-approved standard is presumed fair & reasonable, a
piece-rater who does not reach the quota will earn less than the legal
MW and not w/ the pay formula. In such case the ER need not make up
the diff bet the legal MW and the wage actually earned.
On the other hand, if the outpu-and-pay scheme has not been
approved by DOLE, or does not conform w/ DOLE-issued orders, then
the ER may be required to pay the shortfall bet the actual earning and
the prescribed MW.
The piece-rate pay formula needs DOLEs approval so ast to protect the
workers right to be paid or to earn at least the MW, and at the same
time, to help the ER obtain the corresponding work ouput.
Ch 3 PAYMENT OF WAGES
Art 102. FORMS OF PAYMENT
Proof of Wage payment ER has burden of proof
The IRs require every ER to keep a payroll. Among other things, it must show
the length of time to be paid, the pay rate, the amt actually paid, and so
on. AND the EE should sign the payroll.
ER cannot pay his workers by means of:
1. Promissory notes
2. Vouchers
3. Coupons
4. Tokens
5. Tickets
6. Chits
7. Any obj other than legal tender
Even when expressly requested by the EE.
Procedure
1) Claimants shall execute an affidavit attesting their relshp to the
deceased and the fact that they are his heirs, to the exclusion of
all others (Affidavit of Next of Kin);
2) In case of a minor heir, affidavit shall be executed on his behalf
by his natural guardian or next of kin;
3) Affidavit shall be presented to the ER who shall make paymt
through the Sec of Labor or his rep;
4) The rep shall act as referee in dividing the amt paid among the
heirs; and
5) Payment of wages under this Art shall absolve the ER of any
further liability w/ respect to the amt paid.
3. Payment through a family member of the workers family
- where the ER is authorized in writing by the EE to pay his wages to a
member of his family
Summary of Legal Prohibitions on Wages
1) Payment of wages in non-cash form;
2) Payment of wages in night and day clubs, bars & other similar places;
3) Non-diminution of wages; and
1. Labor-only contracting;
2. Contracting that terminates the ENT of regular EEs, or reduces their
work hrs, or reduces/splits a bargaining unit, if such contracting out is
not done in GF & not justified by business exigencies;
3. Contracting w/ a Cabo person/s or labor group w/c, in the guise of a
labor org, supplies workers to an ER w/ or w/o any monetary or other
consideration whether in the capacity of an agent of the ER or as an
ostensible independent contractor;
4. Contracting w/ in-house agency;
5. Contracting because of a strike/lockout;
6. Contracting that constitutes ULP under Art 248.
JOB CONTRACTING
The ER/principal is
merely an indirect ER,
by operation of law, of
his contractors EEs
The law creates an EREE relshp for a limited
purpose, i.e. to ensure
that the EEs are paid
their wages
LABOR-ONLY
CONTRACTING
The ER/principal is
treated as direct ER of
the contractors EEs in
all instances
(contractor is deemed
agen of the ER)
The statute creates an
ER-EE relshp for a
comprehensive
purpose, i.e. to prevent
a circumvention of
labor laws
The principal becomes
solidarily liable w/ the
contractor not only for
unpaid wages but also
for all the rightful
claims of the EEs under
the LC AND ANCILLARY
LAWS
Note: The principal shall be deemed the ER of the contractual EE in any of the
ff cases as declared by competent authority:
1. Labor-only contracting; and
2. Contracting arrangement falling w/in the prohibitions
Art 107. INDIRECT ER any person, partnership, assoc or corp w/c not being
n ER, contracts w/ an independent contractor for the perf of any work, task,
job or proj.
4 Features of Legitimate Contracting
1. Parties a principal (contractee) enters into a contract w/ a contractor,
or if the principal is himself a contractor, he enters into contact w/ a
sub-contractor. A contracted job may be subcontracted, partly or
wholly, unless prohibited in the contract.
2. Specific job the contract calls for the performance or completion of a
specific job, work or service;
3. Period such job, work or service is to be performed or completed w/in
a definite or predetermined period; and
4. Location the contracted job, work or service may be performed or
completed inside or outside the premises of the principal
An independent contractor is one who exercises:
1. Independent ENT;
2. Contracts to do a pc of work accdg to his own methods; and
3. Is not subj to control of ER result
The labor contractor is legit if:
1. He is a job contractor; and
2. Is properly registered w/ DOLE as the same
Judicial Notice of Job Contracting
- The Court has already taken judicial notice of the general practice
adopted in several gort & private institutions and industries of hiring
independent contractors to perform special services. These services
range from janitorial, security and even technical or other specific
services. While these services may be considered directly related to the
principal business of the ER, nevertheless, they are not necessary in the
conduct of the principal business of the ER.
A manpower company may be a LOC in one case but an independent
contractor in another.
Coca-cola Bottlers Ph v Hingpit: Lipercon was adjudged to be a LOC
in a previous case (Guarin v Lipercon), for lacking the substantial capital. But
not so in the present case, where it has been able to establish its characted as
an independent contractor. Aside form hiring its own EEs and paying the
workers their salaries, it also exercised supervision & control over them, w/c is
the most important aspect in determining ER-EE Relshp.
contractors EEs for purposes of paying the EEs their wages should
the contractor fail to do so.
- where no ER-EE Relshp exists bet the parties, as to
reimbursement bet the principal & the contractor, the RTC has
jurisdiction
b) Payment before Reimbursement but one may seek
reimbursement only AFTER it has paid the EEs.
c) For Other Violations qualified or limited liability; if the liability is
for failure to pay the min wage, or the SIL, or other benefits derived
from or provided for by law, the principal is equally liable w/ the
contractor as if the principal were the direct ER.
BUT, if the liability is invested w/ punitive character, such as an
award for backwages & separation pay because of an illegal
dismissal of the contractors EE, the liability should be solely that
of the contractor in absence of proof that the principal conspired
w/ the contractor in the commission of the illegal dismissal.
Rights of Contractual EEs (EEs of a legitimate contractor)
1. Safe & healthful working conditions;
2. Labor standards such as SIL, rest days, OT Pay, holiday pay, 13thMP,
& separation pay;
3. SS & welfare benefits;
4. Self-orgs, CB and peaceful concerted action; and
5. Security of tenure.
Certain conditions required expressly stipulated in the ENT Contract
1. Specific description of the job, work or service to be performed by the
contractual EE;
2. The place of work and terms & conditions of ENT, uncluding a
statement of the wage rate applicable to the indiv contractual EE; and
3. The term/duration of ENT, w/c shall be coextensive w/ the contract of
the principal & contractor or w/ the specific phase for w/c the
contractual EE is engaged, as the case may be.
The sub/contractor shall inform the contractual EE of the foregoing terms &
conditions on or before the 1st day of his ENT.
Security of Tenure:
a. in cases of termination of ENT prior to the expiration of the contract bet
the principal & the sub/contractor, the R of the contractual EE to
separation pay or other related benefits shall be governed by
applicable laws & jurisprudence on termination of ENT.
b. Where the termination results from expiration of contract bet the
principal & the contractor, or from completion of the phase of the job
for w/c the EE is engagednot entitled to separation pay. however,
this shall be w/o prejudice to completion bonuses or other emoluments,
incl retirement pay as may be provided by law/contract bet the
principal & the contractor.