%@. SAN BEDA UNIVERSITY COLLEGE OF LAW £g/ 2018 CENTRALIZED BAR OPERATIONS MEMORY AID LABOR LAW i2018 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE Over-all Chairperson Chairperson for Academics Chairperson for Hotel Operations Vice Chair for Operations Vice Chair for Secretariat Vice Chair for Finance Vice Chair for Audit Vice Chair for Electronic Data Processing Vice Chair for Logistics Vice Chair for Membership Kates Jastin E. Aguilar Christine P. Monderin Cheska Arla C. Agrupis Mara Clara M. Estrella Mary Cyriell C. Sumanqui Artlyn Gem G. Senoran Zaire Xandra M. Reyes Asmenah M. Barambangan Martin Alec N. Bautista Marvie L. Pagcaliwangan LAYOUT AND CONTENT EDITORS Jordan N. Chavez Roger P. Cuaresma Joelle Mae J. Garcia Marie Anna Karla M. Regencia Jecko G. Bello ‘Christopher Lawrence C. Ferriols Jean Claudette L. Galvez ‘Agatha Josephine V. Matabuena Jeremy M. Mercader Dentzen S. Villegas SAN BEDA COLLEGE OF LAW ADMINISTRATION Dean Vice Dean Prefect of Student Affairs Administrative Officer Legal Aid Bureau Director Atty. Virgilio B. Jara Atty. Marciano G. Delson Atty. Risel G. Castillo-Taleon Atty. Francesca Lourdes M. Sega Atty. Peter-Joey B. Usita 2018 CENTRALIZED BAR OPERATIONS CORE GROUP, OVERALL Carmelo R Aguilar Jr, Ma, Angelica B, de Leon, Joseph Nicholas R. Serrano ACADEMICS Jecko G. Bello, Christopher Lawrence C. Fe jols, Jean Claudette L. Galvez, Agatha Josephine V. Matabuena, Jeremy M. Mercader, Dentzen 5, Villegas HOTEL OPERATIONS Dohn Albert E. Arquilizan, Ronalyn A. Gacula, Ruth P. Balladares, John Ps IP. Bartolome, Hannah A. Caceres, Vincent Paul C. David, Lorenzo Thaddeus Ruel D, Galandines, Tagma Esther V. Garabiles, Carlo C. Saplan OPERATIONS Roi Christopher T. Dizon, Ursulaine Grace CFe ‘Anne L. Bernardino, Jessica Sharla “iano, Ferdinand Elbert D. Jomilla Jr, Lydia Marie I, Mirabel, Ma. Lourdes M. Santos SECRETARIAT Ellaine Bustamante, Jhelsea Louise B. Dimaano, Doane Kevin P. Jacinto, Graham Edison G. Ragsac FINANCE fenica A. Aquino, Colleen F. Dilla, Lex Angelo A: Rosario, Kathrina Grace C. Sanchez, Meriwila R. Tulayan AUDIT Ma. Consolada V. Ben, Arra Olmaya |. Badangan, Guenavere J, Hao, Lorelie M. Santos, Apollo Julius S. Sta. Ms ia ELECTRONIC DATA PROCESSING Jordan N. Chavez, Roger P. Cu esma, Joelle ‘Mae J. Garcia, Marie Anna Karla M. Regencia LOGISTICS Daniel Philip V. Barnachea, Jose Emmanuel I. Cabel, Sophia Victoria E. Mina, Fatima Miana J. Rodriguez, Hanz Darryl D. Tiu MEMBERSHIP Eric Winson F. Cea, ‘Agatha Loren S. Edillor, Mark Benedict S. Francisco, Antonio C. Manaligod {V, Justine Renee C. SisonSubject Chair Assistant Subject Chair Electronic Data Processing Labor Standards Labor Relations Jurisdiction and Remedies Special Laws _LABORLAW LYLE ARIANE M. REGENCIA LERYHC ANDREI T. JIMENEZ JAYSON P. HIQUIANA SUBJECT HEADS RAJIN ELLIS B. BARTOLOME EDSEL MARC E. DIAO GINETTE P. LOPEZ KENT ARVIN C. AQUINO MEMBERS JAMES BRYAN IBRAHIM A. ALIH PAULA DIANE BENITEZ CHINO B. DELA CRUZ, MAERYL N. LAGUMBAY SUZETTE RIA T. LIBERATO FAYE TRIXIA G. PAZ SHIELA MARIE D. PILAR ADVISERS ATTY. MARLON J. MANUEL ATTY. FLORENCIO M. MAMAUAG, JR. ATTY. JOYRICH M. GOLANGCO. ATTY. PETER-JOEY B. USITA ATTY. THERESE GENEVIEVE NUEVE-COTABLE OF CONTENTS SAN BEDA MEM@RY AID 2018 LABOR STANDARDS INTRODUCTION a (CHAPTER I: GENERAL PROVISIONS ARTICLE 1: NAME OF THE DECREE Labor ARTICLE 2: DATE OF EFFECTIVITY Labor Leaisiaion abor Caw Tig malor divisions inte ‘The Law on Labor Standard ‘The Law on Labor Relations Social Legislation Labor Law v, Socal Legislation Wettare Legisiation ‘Wetare Legislation v. Social Legisiation Sources of Labor Late Basic Rights of Workers as Guaranteed by the Constitution Equatties Guaranteed by the Constititon and Social Justice ‘Constutional Mandates Related Laws “Chl Code 2° Revised Penal Code 3. special Laws : Police Power as the Basie Social Justice ae the Aim ARTICLE 3: DECLARATION OF BASIC POLICY Lime othe Protechon Atorsea ARTICLE 4” CONSTRUCTION IN FAVOR OF LABOR Umiatione When in doubt, the appreciation of Evidence fs in favor of Labor Reasons for Affording Greater Protection to Employees Extent of Protection to Labor ‘Quast Lepislaive Power ARTICLE §: RULES AND REGULATIONS ARTICLE 6 APPLICABILITY EMANCIPATION OF TENANTS. seonnnnnnne 8 ‘CHAPTER il: EMANCIPATION OF TENANTS “Three Components of Agrarian Reform Relevant Consttutional Provisions 'B.D.No.27 v. CARL (RA. No, 6657) & CARPER (3.8. No. 9700) Under CARL and CARPER, the folowing lands are not covered Purpose of Prohiion against Alienation ands not Coveree LABOR STANDARDS seven a renee ARTICLE 12: STATEMENT OF OBJECTIVES. [ARTICLE 14: EMPLOYMENT PROMOTION Allocation of Manpower Resources ARTICLE 18: BUREAU OF EMPLOYMENT SERVICES 10 REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES ce ARTICLE 36; REGULATORY POWER ARTICLE 37; VISITORIAL POWER PRE-EMPLOYMENT dO, "TITLE ONE: RECRUITMENT AND PLACEMENT OF WORKERS (CHAPTER |: GENERAL PROVISIONS [ARTICLE 13: DEFINITIONS. ‘ARTICLE 16: PRIVATE RECRUITMENT ‘CHAPTER I REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES ARTICLE 25: PRIVATE SECTOR PARTICIPATION IN RECRUITMENT AND PLACEMENT ACTIVITIES Prvate sectors that can participate, ‘Qualifications for Diequalieg from Recrutment and Placement of Workers ‘Private Employment Agency v. Private Recrutnent Entty LUcense vAuthonty Yatity of License Prowstonal License for Overseas Employment 2018 SAN BEDA CENTRALIZED BAR OPERATIONS ||TABLE OF CONTENTS SAN GEDA MEMORY AID 2018 ARTICLE 29: NON-TRANSFERABILITY OF LICENSE OR AUTHORITY [ARTICLE 30: REGISTRATION FEES ‘ARTICLE 31: BONDS OR ESCROW DEPOSITS Purposes Exemption tran Garnishment ARTICLE 52: FEES TO BE PAID BY WORKERS POEA has the power to Prohibition on Charging Fees. ARTICLE 53: REPORTS ON EMPLOYMENT STATUS [ARTICLE 35. SUSPENSION ANDIOR CANCELLATION OF LICENSE OR AUTHORITY: ‘Grounds for Automatic Revocation of cense ‘Grounds for Suspension/Caneelation of License Sluecition ‘Soidary Liabilty Assumed by Recrutment Agency Suabilty of Foreign Corporations Provisional Ueente Vabalty of @ Regular License Renewal of Lense ARTICLE 18° BAN ON DIRECT HIRING Reatone ofthe Pronition Cassiticaton of OFWs Deployment of Migrant Workers Deployment ‘Termination or Ban on Deployment ARTICLE 36: ILLEGAL RECRUITMENT Presumption of llega! Recrutment for NLINHA ARTICLE 34: PROMIBITED PRACTICES, Omer Prohisted Acts “Two Kinds of egal Reuter kinds of tlogal Recruitment Elements of Simple tlegal Recruitment Elements of Large-Scale egal Recrutment Elemenis of llegal Recrutmert by Syndicate Principles on illegal Recrutment Invvng Economic Sabotage (Consequences of Conwction legal Recrutment v. Estat ‘Act Consttutng Estata ‘Venue of Criminal Acton Arising fom legal Recruitment When maximum penaly's imposed Absonce of Recelpts Evidencing Payment, Not Fatal to Prosecuton's Case fer legal Recruitment {abit of Recruitment Agency Exception to Liabilty of Recrutment Agency abit of Employee of Company Engaged in tego! Recruttment Issuance of Search Warrant or Warrant of Arrest ARTICLE 39: PENALTIES ‘Summary of Rules on Prescriptive Period and Penalty (FLA. No, 10022, Sec. 6) Prohibition on Offidals and Employees ‘Country-Team Approach Fepatration ‘Mandatory Repatriation of Underage Migrant Workers [National Reintegration Cente: for Overseas Faipna Workers (NRCO) ‘Compulsory Insurance Coverage for Aganey-tirea Workers, ARTICLE 17, PHILIPPINE OVERSEAS AND EMPLOYMENT ADMINISTRATION (POEA) Prnepal Functions Reguiatry Functions ‘Agjudicalary Functions (Jurisdiction Retained with POEA) Venue in OFW Cases. Disciplinary Action Cases ‘Grounds for Disciplinary Action Compromise Agreement Rte on Prematore Termination of Contract ‘lttepragence on the Unconsifutionatty of Sec 10 of RA. No, 8042 v. See. 7 of R.A. No. 10022 Due Process Requied to Terminate Employment Minsmum Employment Condiions of Overseas Employment Invalid Agreements ‘Agencies Given the Out to Promote the Weare and Rights of Migrant Workers: ARTICLE 18° COMMISSION ON FILIPINOS OVERSEAS, [ARTICLE 20: NATIONAL SEAMEN BOARD ARTICLE 21: FOREIGN SERVICE ROLE AND PARTICIPATION ARTICLE 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS Exceptions to Mandatory Remiance Effects of Faire to Remit EMPLOYMENT OF NON-RESIDENT ALIENS : oe {TITLE TWO: EMPLOYMENT OF NON RESIDENT ALIENS, if | 2OIG SAN BEDA CENTRALIZED BAR OPERATIONS 28TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 ARTICLE 40: EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS, Employment Permit Required Valtaty renewal [An AEP i osued based on the fllowing Exemption trom Permit {Grounds for Denial of Application of AEP Grounds for Cancellaton/Revocation of Alton Employment Perm Fines for (a) working without valid AEP and (0) or employing foreign nationals without valid AEP Rule on Nationalzed Susinecs ARTICLE 41" PROMIBITION AGAINST TRANSFER OF EMPLOYMENT [ARTICLE 42: SUBMISSION OF LIST HUMAN RESOURCES ar TITLE ONE" NATIONAL MAN POWER DEVELOPMENT PROGRAM SHAPER | NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION SRTICLE «3.56 TECHNICAL EDUCATION AND SKILLS DEVELOPMENT AUTHORITY Statement of Goats and Objecines ofA No. 7798 (ORNS) TILE TWO. TRANING aN EMPLOYMENT OF SPECIAL WIORKERS Glaprent Tyees OF SPeGint MORKERS [RPPRENTICES AND LEARNERS ARTICLE or: STATEMENT OF OBJECTIVES FOR THE TRAINING AND EMPLOYMENT OF SPECIAL WORKERS Sheaves ARTICLE: So DEFINITION OF TERMS ARTLE $0. QUALIFICATIONS OF APPRENTICES Guattcaton ot Apprentices, ARTICLE 6D EMPLOYMENT OF APPRENTICES uatiestion fo be met bythe Enver of Apprentices Raquetes fr Vaid Apprenticeship Number ot Appreriss to be Taken by Companies ARTICLE OY CONTENTS OF APPRENTISNIP AONCEMENT Soprentcasip Agreement shel ineuce ARTICLE OF SianiNG OF APPRENTICESHIP AGREEMENT Soprentcasip agreements sone by Befecve Conract ARTICLE €3 VENUE OF APPRENTICESHIP PROGRAM ARTICLE 4 SPONSORING OF APPRENTICESHIP PROGRAMS ‘praceahp Proyrarts hal Undertaken or Sponsored by ARTICLE Gb.7 VIOLATION OF APPRENTICESHIP AGREEMENT Ivesigaton of Volton of Apprenticeship Agere ‘Vaid Gnes for feminsiono Agreement Repeat EShatston of Adminitrative Remedios asic. 68 APTITUDE TESTS ARTIGLE oo: RESPONSIBILITY FOR THEORETICAL INSTRUCTION ARTICLE 70: VOLUNTARY ORCKIZATION OF APPRENTICESHIS PROGRAMS ARTGLE 71 DEBUCTABILITY OF Teaming COSTS Recuiste or Decutsiy of Faring Gore AnTiout 53 APPRENTICES WITHOUT COMPESANTION Nioring Seoios ‘CHAPTER IE LEARNERS . KafIcLE TS LEARNERS DEFINED SRRTCLE 14: WHEN LEARNERS MAY BE HIRED Employment of Ninos e Learners ARTICLE 15: LEARNERSHIP ROREEMENT ‘eproval and Concelaton of Leameceip Poor Nifcte Te. ennnens N PECEWORK Serna Apprentessop ARTICLE 77 PENATY CAUSE GHADTER I HANDICAPPED WORKERS ‘anlenty of tre Magne Cars for Persons wth Disbites amicus 1 BEtNKION ARTGLE 79 WHEN Is A HANDICAPPED WORKER EMPLOYABLE ARTICLE G0. CUPLOYMENY AGREEMENT CONTENTS enters Employment Ageerient of handeapped workers Fret for Enitement to Prvfegen Fite a Prvteges of Oat Persons reapectto Employment aor scrmanaten Prohbtone on Vero, Non. erba Re and Viltcaon aginst Persons wih Disabity Buraten of empoymenh oontves or Empoyers iter Peleges te reentee ‘Nef Entement of veges ARTIOLE St: ELIGIBNTTY FOR APPRENTICESHIP 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | iTABLE OF CONTENTS SAN BEDA MEMORY AID 2018 CONDITIONS OF EMPLOYMENT TITLE : WORKING CONDITIONS AND REST PERIODS Berafts Granted in Tile One, Book Il (COVERAGE OF LABOR STANDARDS LAW EMPLOYER-EMPLOYEE RELATIONSHIP ..... a ‘Types of Employees under the Labor Code ements of Employer-Employee Relationship or FourFold Test Contrl Test Economic Dependence or Economic Reality Test ‘Twotered Approach Eistence of Empioyer-Employee Relationship Evidence of Employment Cases Where Employer-Cmployee Relationship Exists Cases whare there 12 no Empioyer-Employee Relationship ‘Absence of Namen the Payrol Importance of Determining Exatence ot Employer-Employee Relationship CHAPTER | HOURS OF WORK [ARTICLE 82: COVERAGE Goverment Empoyees Manegeral Employees Elements to be Considered a Member of the Managerial Stat! Test of Supervisory or Managerial Status Domestic Helpers! Persons Rendering Personal Services Workers Paid by Result Members of the Family ofthe Employer Field Personnel Rule n Case of Fishermen Rule in Case of Drvere/Bue Conductors HOURS OF WORK cco ARTICLE 63: NORMAL HOURS OF WORK Partie Work Conditions of a Vals CIM Scheme Effects of CWW Scheme: ‘Non-Diminution of Benefits Flexible Work fvrangements “Twelve: Hour Work Shit with Overimne NNotal Hours of Werk of Heath Personnel ‘Werk Day. Calendar Day Broken Hour Staggeres Working Time ARTICLE 64° HOURS WORKED Houre Worked include: (OW-S-R20-420) Principles in Determining Hours Worked: Rules on Hours Workee 1. Walling Time Rules on Sleeping; When Considered Part of Working Time Preliminary an Postiminary Aeties ‘Travel Time Power interruptions ‘Semestral Break of Teachers Lectures, Moesngs, Trainings, Programs Atendance in Labor Relations Actives {Work Suspension Due to Peace and Order Disturbance 9, Work Hours of Seamen ARTICLE 85: MEAL PERIODS: Shortened Neal Brak upon Employees’ Request ‘Changing Lunch Break trom Paid to Unpaid ARTICLE 86° NIGHTSHIPT DIFFERENTIAL NSD in Overtime Work NSD not Wavate ‘Sample ustrations ‘Night Shit Olerenta v Overtime Pay ARTICLE 87, OVERTIME WORK ‘Overtime Pay ve. Premium Pay Basi for Computation of Overtime Pay {Conslvons tobe entitles to Overtime Pay Factual and Legal Basis for Cla Overtime Pay integrated inthe Basie Salary (Bui n" Overtime Pay) Waiver of Overtime Pay {Gutclaim in Relation to Overtime Pay iv | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS 36 36 40TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Chinese Overtime against Pubic Policy ‘Sample ilustratons ARTICLE 88: UNDERTINE NOT OFFSET BY OVERTIME [ARTICLE 69. EMERGENCY OVERTIME WORK [ARTICLE 99: COMPUTATION OF ADDITIONAL COMPENSATION WEEKLY REST PERIOD . (CHAPTER Il WEEKLY REST PERIOD. ARTICLE 91: RIGHT TO A WEEKLY REST DAY ‘Who Determines Weekly Rest Daye ARTICLE 92: WHEN EMPLOYER MAY REQUIRE WORK ON REST DAY [ARTICLE 93. COMPENSATION FOR REST DAY, SUNDAY, OR HOLIDAY WORK Premium Pay or Differential Compensation v Overtime Pay ‘Adaltonal Compensation for Work on a Rest Day, Sunday or Holiday HOLIDAY PAY « se (CHAPTER Il: HOLIDAYS, SERVICE INCETIVE LEAVES, AND SERVICE CHARGES ARTICLE 94: RIGHT TO HOLIDAY PAY Lstof Regular Holidays as amended by RA. 0492 Muslim Hotdays Rule on Compensabity Holiday Pay of Monthly Paid Employees ‘Adaiional Compensation for Work on a Rest Day, Sunday or Holiday Rule on Holiday Pay of Teacting Personnel Paid Per Lecture Hour Holisay Pay of Certain Employees Formula to Compute Wages on Holidays LUstof Special Days Regular Hollday v Special Holiday Double Holiday Pay ‘Single Hotday Rule Etfecs of Business Closure on Holiday Pay Successive Regular Holiday Suscessive Holliay Rule SERVICE INCENTIVE LEAVE 0... a o « ARTICLE 95: RIGHT TO SERVICE INCENTIVE LEAVE SIL. does not appy to the folowing Conversion to Monetary Equivalent FRule on Prescription of Claim fr SL Employees with Salaries Above Minimum Wage Other Leaves Provided by Law VACATION AND SICK LEAVE ‘Service Incentive Leave v. VacatonSick Leave SERVICE CHARGES : 7 ARTICLE 96: SEVICE CHARGES Coverage __ Frequeney of Dietibuton Rule case of Abolition Pooled Tipe ‘Service Charge isnot inthe nature of @ Prot Share and, therefore, cannot be deducted fom wage WAGES : rr TITLE TWO: WAGES CHAPTER | PRELIMINARY MATTERS [ARTICLE 97: DEFINITIONS Fair Day's Wage fora Fai Days Labor (CN Wark, No Pay Principle") Equal Pay for qual Work ‘Wage v. Salary ‘Wage or Salary includes FRogqurements for Deducting Amount of Facies Follies v Supplements 13 Month Pay eluded in the Definition of Wage ARTICLE 88: APPLICATION OF TITLE CHAPTER Il MINIMUM WAGE RATES, [ARTICLE 99- REGIONAL MINIMUM WAGES Abity to Pay immaterial Estoppel Not Appliable ARTICLE 100, PROMIBITION AGAINST ELIMINATION OR OIAINUTION OF BENEFITS 'Non-Diminiton of Genefts When Applicable ‘Exceptions tothe Non-Diminution Rute ARTICLE 101" PAYMENT BY RESULTS. 53 87 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | vTABLE OF CONTENTS SAN BEDA MEM@RY AID 2018 Categories of Workers Paid by Resuite Benefits Payabie to Pioce-Rate Workers wnose Work is Directly Supervised by the Employer (CHAPTER II PAYMENT OF WAGES. ARTICLE 102: FORMS OF PAYMENT Employer Cannot Pay His Workers by means of ARTICLE 103. TIME OF PAYMENT ARTICLE 104: PLACE OF PAYMENT Reeguistes for Payment thru Barks: (OWE) ARTICLE 105" DIRECT PAYMENT OF WAGES. ‘Summary of Legal Profibitons on Wages Summary of Rules on Payment of Wages JOB CONTRACTING OR SUBCONTRACTOR (0.0. NO. 174 SERIES OF 2017) [ARTICLE 106: CONTRACTOR OR SUBCONTRACTOR. Types of Contractors under the Law Entstence of Trlteral Relationship ‘Two (2) kinds of contracts required in a Trlaterl Relationship Eloment of Legtimate Contracting or Subcontracting, Mandatory Registration and Regaty of Legitimate Contractor: \Valty of Gertneate of Registration of Contractors Ground for Canceliation of Registration Etfecs of Cancellation of Regatraton ‘Other ict Foms of Employment Arrangements sob Contracting v. Labor Only Contacting, ARTICLE 109: SOLIDARY LIABILITY OF THE PRINCIPAL, ARTICLE 107: INDIRECT EMPLOYER [ARTICLE 108: POSTING OF BOND Effects of olson of Secs. 10.0011 Effet of Termination of Employment ARTICLE 110: WORKER PREFERENCE IN CASE OF BANKRUPTCY ‘An. 140 and the Chi Coge Efiect of rt 10 on the Chl Code Provisions ARTICLE 111 ATTORNEY'S FEES Concepts of Alomey’s Fees “union Service Fee" CHAPTER IV: PROHIBITIONS REGARDING WAGES 10 Commandments forthe Employer ARTICLE 412: NON-INTERFERENCE IN DISPOSAL OF WAGES Relates Civil Code Provisions ARTICLE 113: WAGE DEDUCTIONS. ARTICLE 114: DEPOSITS FOR LOSS OR DAMAGE Reguises of Deduction for Loss or Damage ARTICLE 115" LIMITATIONS. [ARTICLE 116: WITHOLDING OF WAGES ANO KICKBACKS. [ARTICLE 117: DEDUCATION TO ENSURE EMPLOYMENT ‘ARTICLE 118: RETALIATORY MEASURES. [ARTICLE 149: FALSE REPORTING CHAPTER V: WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION [ARTICLE 120: CREATION OF NATIONAL WAGES AND PRODUCTIVITY COMMISSION Composition of Nstonal Wages and Productivty Commission (NWEC) ARTICLE 121: POWERS AND FUNCTION OF THE COMMISSION ARTICLE 122: CREATION OF REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARO Who May Set the Minimum Wage Composition of RTWPB: ARTICLE 125 WAGE ORDER. Effect RTWPB, not NPC, approves 8 Wage Order Frequency ‘Appeal Effect of Appeat {Grounds for Appeal on Wage Order Doctrine of Goubie Indemnity Unpaa Benet ARTICLE 124: STANDARDS! CRITERIA FOR MINIMUM WAGE FIXING Factors for Determining Regional Minimum Wage Rates ‘Two Methods of Minimum Wage Fang Elements of Wage Distortion. Employer Legally Obliged to Correct Wage Distortion Correction of Wage Destorton Formula for Resolving Wage Distortion Previous Pay Gaps Need Net be Restored Jobs nthe Same Region ARTICLE 128" FREEDOM TO BARGAIN [ARTICLE 126: PROHIBITION AGAINST INJUNCTION ARTICLE 127: NON-DIMINUTION OF BENEFITS. vi12018 SAN BEDA CENTRALIZED BAR OPERATIONSTABLE OF CONTENTS SAN BEOA MEMORY AID 2018 (CHAPTER Vi: ADMINISTRATION AND ENFORCEMENT ARTICLE 128: VISITORIAL AND ENFORCEMENT POWER, Role ofthe DOLE Regional Dvectors Nature of Proceednige and Quantum of Evidence SURISOICTION. Vistonat anc Enoroement Power Requisite forthe Vala Exerose of Enforcement Powers: (EFC) Modes ofimplementation’Exerese of Vistorial and Enforcement Power Routine Inspection Procedure for Routine inspection ‘Remeciaton Period for OSHS violations Complaint inspection Procedure for Complaint inspection ‘Occupational Saftey and Heath Standorde insvestigaion Mandatory Conference shall be summary in nature and shal be conducted Exception to te issuance of a Compliance Order Work Stoppage Order (WSO) Appest Grouncs wre to fe \Vistoral and Enforcement Power (Ale 128) v.Adjudicstary Power (Article 129) ARTICLE 129: RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS Recovery of Wages, Simple Money Clams, and Other Genetts ‘Requisite for RD'eJuredicton over Simple Money Claims, Complaints against Private Recrutment and Placetnent Agencies (PRPAs) for Local Employment Ex-Officio Voluntary Artratore (EVAS) Appeals 13™ MONTH PAY LAW (P.D. NO. 851) . : 73 Minimum Amount Nature of 13" Month Pay Basie ’ ‘Commission vis-2vis 13" Montn Pay Proguctvly Incentives Coversge “Time of Payment Repost of Compliance Nominclusion in Regular Wage Rules on Certain Types of Employees, Pro-Rated 13" Month Pay ‘Prohibition against Reduction or Elminstion of Benetts ‘Coverage fom Income Tax of the 13" Month Pay ‘Adjudietton of Clams HEALTH, SAFETY AND SOCIAL WELFARE BENEFITS, : 83 TITLE ONE! MEDICAL DENTAL AND OCCUPATIONAL SSAFETY CHAPTER | MEDICAL AND DENTAL SERVICES ARTICLE 162: FIRST-AID TREATMENT Hazardous Workplaces ARTICLE 163: EMERGENCY MEDICAL AND DENTAL SERVICES: Emergency Medical And Dental Services ARTICLE 168; WHEN EMERGENCY HOSPITAL OR DENTAL CLINIC NOT REQUIRED CHAPTER Ii OCCUPATIONAL HEALTH AND SAFETY LABOR RELATIONS LABOR RELATIONS a “TITLE | POLICY AND DEFINITIONS Labor Relatons. {aber Relations Laws [ARTICLE 218 DECLARATION OF POLICY Parties to Labor Relations Cases Principe of Non-Oppression ‘Aroeestion EMPLOYEE-EMPLOYER RELATIONSHIP : 88 [ARTICLE 219; DEFINITIONS Employer Employes ‘Types of Employees under the Labor Code Managers! Employes Superiery Employees 2OI8 SAN BEDA CENTRALIZED BAR OPERATIONS | viTABLE OF CONTENTS SAN BEDA MEM@RY AID 2018 Elements of Employer-Employee Relationship or Four-Fld Test Contr! Test Economie Dependence or Economic Realty Test ‘Two.tered Approach Existence of Empioyer-Employee Relationship Evidence of Employment siuedicton ‘Gases Where Employer-cmployee Relationship Exist Gases where there no Empayer Employee Relationship ‘Absence of Name inthe Payrol| Importance of Determining Exstence of Employer-Employee Relatonship KINDS OF EMPLOYMENT ee ARTICLE 295: REGULAR AND CASUAL EMPLOYMENT KINDS OF ENPLOYMENT 1. Ragular Employment “Tests of Regularity 2. Casual Employment 3. Project Employment ‘When May 3 Project Employee Become a Regular Employee Work Pool Principia Members of a work pool may consist of Requrements Ineators of Project Employment Principal Test fo Determine Whether Employees Are ‘Project Employees’ as Distinguished from ‘Regular Employees! Entitlement to Separation Pay 4. Seasonal Employment ‘When are Seasonal Employees Considered as Regular Employees ‘Other forms of employment under Book Vi 'Fxed-Perod Employment ‘Reason for valéty of fxed-period employment oteria under which Fed Peried Employment may be vals ‘Special Groups of Employees [ARTICLE 206: PROBATIONARY EMPLOYMENT Characterstes of Probationary Employment Buration Extension of Probation Double or Successive Probation Not Alowed ‘Termination of Probationary Employment Standard for Regularization mations to Termination of Probation Regular Status ster Probationary Period JOB CONTRACTING AND/OR SUBCONTRACTING (D.0. NO. 174 SERIES OF 2017)... 93 “Types of Contractors under the Law Exotance of Trlateral Relationship ‘Two (2) Kinds of contracts requires i a Trilateral Relationship Elemente of Lagtimate Contracting or Subcontracting Mandatory Regisivation and Regist of Legitimate Contractors ‘Vaty of Certiicate of Registration of Contractors ‘Ground for Cancellation of Registration Effects of Cancelaton of Regstration ‘Other tit Forms of Employment Arrangements ‘Job Contracting v. Labor Only Contracting ‘Soldary Liably ofthe Principal Posting of Bord Effects of Vielton of Secs. 10 or 11 of D.0. No. 174-17 Effet of Termination of Employment MANAGEMENT PREROGATIVE Fight of Employer to Regulate All Aspects of Employment ‘The employer has the LIMITATIONS ON THE EXERCISE OF MANAGEMENT PREROGATIVES EXAMPLES OF MANAGEMENT RIGHTS DISCIPLINE. 1. Right to Discipline 2° Right To Dismiss 5. Right to Determine Who to Punish 4 Right to Preserbe Company Rules and Regulations 5_Rightto Impose Penalty Proportonaity Rule, TRANSFER OF EMPLOYEES: “Two Kinds of Transfer ‘Seme Instances Where Refusal to Transfer Is Valid vvii| 2018 SAN BEDA CENTRALIZED BAR OPERATIONSTABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Prerogative to Reorganize Prerogative to Promote Fight to Retise Promotion Prerogative to Demote Instances Where Dertion Exists Instances of Valid Demotion PRODUCTIVITY STANDARD. ‘Standard Output Rates or Piece Rates Time ang Moton Studies Allowea Time Base Rate GRANT BONUS. ‘When Demandable and Enforceable (CHANGE OF WORKING HOURS RULES ON MARRIAGE BETWEEN EMPLOYEES OR COMPETITOR EMPLOYEES When Rute is Val nen Rute fe NOt Vas “The Bona Fide Occupational Qualification Rule (6FOG) and its pertinent provisions under the labor code Reasonable Necessy Rule POST-EMPLOYMENT BAN "Non-Compete of Non Involvement Ciause Legal Bas Forfeture-For-Competiton Clause Compensation for Competition Ciause Garden-Leave Clauee Confidentiality and Non-Disclosure Clause Non-Sotctaton Clause 'Non-Recrument or Ant-Piracy Clause Inventions Assignment Ciause (Intelectual Property Clause) LABOR ORGANIZATION ccc TITLE FOUR: LABOR ORGANIZATIONS CHAPTER F- REGISTRATION AND CANCELLATION Labor Organization Union | LLegitmate Labor Organization (LLO) Principle of agoncy applied Indepencent Union Bargaining Representative Exclusive Bargarning Representative Workers Associaton LLegtimate Werker's Associaton Labor Organization v Worker's Assocation ‘Glasefcaton of Labor Organizations Purpose of the Formation of Labor Unions ‘Modes of Acquinng Legitimacy fer Labor Organizations [ARTICLE 240: REQUIREMENTS FOR REGISTRATION - Purpose of Registration Requrements forthe Issuance ofthe Certfcate of Registration of Labor Organizations (As Amended By R.A. No. 9481, June 15, 2007) ‘Adéitional Requirements for Registration of a Federation ‘where to te application for registration Mandamus, not Certoran, iste proper remedy ‘Ministeral Duy ofthe BLR Compelabie by Mandamus [ARTICLE 241: CHARTERING AND CREATION OF LOCAL CHAPTER Tentative Legal Personality Where to fle application fF regletration Chartered Local Unions at Enterprise Level Independent Registration v. Charering Principe of Agency Applied ‘ti [aflaton of Local Union wth a Federation Registration Requiements of LU Requirements of Afilation (As Amended By 0.0. No. 40-03), Dicartation ‘When to Dleafiite Freedom Period Manner of Disailation {Local Union Dsaffiates to Join New Federation Effect of Diataiaion ‘Stmnmary of Rules on Aiation Revocaton of Charter by the Federation Reason fo requiing certeston uncer oat) 6s: 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | ixTABLE OF CONTENTS SAN GEDA MEMORY AID Zale Ettct of Revocation of Charter Cerfoate Etc of Cancelsion of Registration of Federation or Nations Union Merger and Consohcaton Emote of Merger Etec of Consoscstion Ettecs of Merger and Consolation of Employer ‘wiley Doctrine ARTICLE 242: ACTION ON APPLICATION ‘ARTICLE 243, DENIAL OF REGISTRATION; APPEAL ‘Appeal Grounds Requrements or peal Modes of Appesl Registration o Federations National Unions or Workers Associations Operating in Mote than One Region Fed wih the FRegitation t Independent Labor Urine, Chrtres Locals, Workers Assocsbone Fed wih the ARTICLE 244" ADDITIONAL REQUIREMENTS FOR FEDERATIONS OR NATIONAL UNIONS ARTICLE 248, CANCELLATION OF REGISTRATION ARTICLE 246, EFFECT OF APETITION FOR CANCELLATION OF REGISTRATION ect of Cancion of Regatatonn tha Course of Proceedings ARTICLE 247: GROUNDS FOR GANCELLATION OF UNION REGISTRATION ‘ARTICLE 248, VOLUNTARY CANCELLATION OF REGISTRATION ‘ARTICLE 249: EQUITY OF THE INGUMOENT CHAPTER II RIGHTS AND CONDITIONS OF MEMBERSHIP [ARTICLE 250° RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION. General Groupings ofthe Rights of he Union Members, ‘Union Members Persone who are Protibte fom Becoming Members of Labor Organization Persons whe are rani rom Being Union Oficars or rom being painted tot any postion in a Union Uimtatons ‘Who ae Ente to Vote Check St Nature and Purpose of Check Off Requrements wth Regard Gnec-Oris ‘intdton over eck of Diepates Requiemants for Lavy of Specal Aseesinents or Etraorahnary Fees ‘Spacial Assessment Check Ot Union Dues Agency Foes Fequsites forthe Impostion of Agency Fees Union Dues w: Agency Fee Employee Members ct acter Union not Consieved Free Riders CHAPTER IIT RIGHTS OF LEGHTINATE ORGANIZATIONS ARTICLE 251: RIGHTS OF A LEGITIMATE LABOR ORGANIZATION. ARTICLE 282: REPORTORIAL REQUIREMENTS TITLE FIVE: COVERAGE ARTICLE 259: COVERAGE AND EMPLOYEES’ RIGHT TO SELF-ORGANIZATION Extent ofthe Right o Sei Organzation Right to Organize Cannct be Barganed Away Fight to Jom Starts trom First Oay of Empioyment PersoneZémpoyees Ege to Jama Labor Organization for Purposes of Collective Bargaining PersonstEmployees Elmible lo Jor Labor Organization for Mutual Aldana Protection PersonsiEmpuoyees whe ate not Granted the Faget Sel Organon ARTICLE 254 RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE Forming, long. ev Asssing Employee's Organzaton Protecson atthe ight te Orgone ‘Terms and Condons of Employment in Government Services Negolabe Terms and Conditions of Empleyment in GOCCs with Original Charter “The Following ire Consisered Not Negotdle REGISTRATION OF EMPLOYEES" ORGANIZATION Where to Register leaance of Regataton Certoate Centteation eatin Saaditon ARTICLE 296" INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGANZATION: RIGHT OF SUPERVISORY EupLovees Manogeral Employees ‘Reszon® for Ineligtty (Confit of intrest) "ype of Manageral Empoyees Ssuparisry Employees re parasory Employees May Form, Asis Join @ Labor Organization Separation of Unions Gacine ‘contsentil Employess Egy o egners to Fonm Labor Orpenization (Princip of Recirocty) x1 2018 SAN BEDA CENTRALIZED BAR OPERATIONSTABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Religious Objectors ARTICLE 256, EFFECT OF INCLUSION AS MEMBERS OF EMPLOYEES OUTSIDE THE BARGAINING UNIT EXCLUSIVE BARGAINING REPRESENTATIVE ... 118 ARTICLE 267: EXCLUSIVE BARGAINING REPRESENTATION AND WORKER'S PARTICIPATION IN POLICY AND DECISION MAKING Entent of the Workers’ ight to Parcipate In Policy ang Decision-Making Processes ‘One-Union, One Company Potey Labor Management Counat ‘Aa Excoplan to ho Exelusiveness of the Representative Role of Labor Organization is individual Grievance Bargaining Uatt [ARTICLE 268° PETITION FOR CERTIFICATION ELECTION [ARTICLE 269: PETITIONS IN UNORGANIZED ESTABLISHMENTS, [ARTICLE 270: WHEN AN EMPLOYER MAY FILE PETITION Excusive Bargaining Representative Bargaining Unit. Union (Win Respect to Vating) DETERMINING THE BARGAINING UNION 0.000000 a 119 Four Factors in Determining the Approptate Bargaining Uni ‘What ae the Methods to determine the bargaining representative? Probationary employees have the fight ovate ina certcation election ‘CONDUCT OF CERTIFICATION ELECTION. Consent Election CCertictionv. Consent Election SEBA CERTIFICATION : ee 124 SEBA Certification Request for SEBA Cortficaton in unorganized establishment with only 1 legit mate union Request fr certification in unorganized estabishment with more than one 1 leglimate labor organization Request for certification in organized estabeshment Procedure in Request for SEBA Certification Ettet of SEBA Certification Direct Certfeaton| Direct Certeaton is no longer allowed CERTIFICATION ELECTION 0.0 Centeation rion Election Union Election v, Cetfeation Election Wino may fle a Petition for Cerfteation Election (PCE) ‘Where to fe a Pettion for Certoaton Electon (PCE) \Winen tole a Pelton for Cerfeation Election PCE) Purpose ofthe Provisions Relating to Cartifcaton Election Deatbts Resolved in Favor of Cetieaion Election lesues invoved ina Gerfiation Electon Proceeding ‘Grounds for Dismissal or Dena ofthe Pelton for Cetication Election ‘The folowing instances wil not cause the damiseal of a Petiion for Certiieation Election or the suspension ofthe Certicaion Election roceedings Rate ofthe Case Notice of Prlimnery Conference Forced intervenor Notion fe intervention Prelerinary Conference; Heerng Duay of the Med-Ariter Erect of Fature to Prove its Alton with a Federation tothe Right Flea Petition for Certification Election Number of Herings | Falur to Appear Dospte Notice GrcerfDecston on the Petition Prohibited Ground for the Denia Suspension of the Petition [sto the Vandy of Cortcate of Regitation Conduct of Certfeation Election 5 Rate ofthe Case Preveloction Conference Waiver of Right tobe Heard ‘nen Preeiecton Conference shal be Completed : ‘uaiicatin of Voters, Porting of Notices Secrecy and Sanctty ofthe Ballot Preparation f Ballets Procedure in the Challenge of Votes Spates Ballots Abstertion ‘Onhe-spot Questions Protest, When Perfected Canvassing of Votes 122 2018 SAN BEDA CENTRALIZED BAR OPERATIONS |»TABLE OF CONTENTS SAN BEDA MEM@RY AID 2018 Cartication of Collective Bargaining Agent Falure of Election Effect of Faiute of Election Motion to Hold another Cetscation Election or Consent Election incase of Failure of Election Proclamation and Certfication of the Result af the Election Double Majonty Rule Howto Determine the Double Majority Rule Effet of 8 No-Union Winning the Election lustration of Cerineaton Election Run-Off Election hhustraton Who Participates in the Run-Oft Election Re-Run Election [ARTICLE 271: EMPLOYER AS BYSTANDER Rules Which Prevent the Holding of a Certfieation Election “1 Certfeaton Veer Bar Rule ‘When Certfeation Year Bar wal NOT Apply Other instances, 2 Contract far Rule Requisite fo Contract-Bar Rule Effect ofan Invalid and Unregistered Exceptions tothe Contract Bar Rule 3. Deadiock Bar Rule ‘When pot applicable ‘tess! Deadlock Doasioce Inaleaions of @ Genuine Deadiock 4.__ Negotiation Bar Rule ‘Centicaton Election in an Organized v. Unorganized Establishment Filing of a Pettion for Certification Election (CE) Diforences between the Elections Conducted in Determining the SEBA and Adminstrator ofthe CBA COLLECTIVE BARGAINING AGREEMENT ae TITLE SEVEN: COLLECTIVE BARGAINING AND, ADMINISTRATION OF AGREEMENTS DECLARATION OF POLICY Collective Bargaining Agreement ARTICLE 261 PROCEDURE IN COLLECTIVE BARGAINING ARTICLE 262: DUTY TO BARGAIN COLLECTIVELY IN THE ABSENCE OF COLLECTIVE BARGAINING [ARTICLE 263: MEANING OF DUTY TO BARGAIN COLLECTIVELY ‘ARTICLE 264: DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT ‘Duty to Bargain Colectvely Purpose of Collective Bargaining Requistes of Collective Bargaining Cenitieaton Year Colecive Bargaining Agreement (CBA) Employment Contact» CBA Zipper Clause Usual Provisions in CBA Stages Inthe Negation for Collective Bargaining Agreement Where no CBA existe Umiatone Where CBA exists Negotiation Process in Cotectve Bargaining kines of Bargaming Reason for Mult-Empoyer Bargaining Registration Requirements Advantages and Disadvantages of MEB. ‘Mandatory Provisions of he CBA Four Forms of ULP in Bargaining Examples of Bad Faith Gergaining Economic exgencies do note refusal to bargaln ‘Seling the Company: Duty ofthe Transteror [Absorption Doctrine’ Accretion Doce Successor In-interst Doctrine loek, Stock and Barre Rule (tik Loy Rung} ‘ete nol deemed refusal to bargain Bargaining to the Point of Deadlock or Impasse: Not Necessaniy Bad Faith Remedios in Case of 9 Deedlock in he Renegalaton ofthe CBA [Automate Renewal Clause ARTICLE 265: TERMS OF A COLLECTIVE BARGAINING AGREEMENT (CONTRACT BAR RULE) uration o the GA Freedom Period \What may be done during tho 60-day reedom pariod Substtutonary Doctrine 134 xi | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS,TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Limitation ast ts Application Freedom Period v. 60-day Period Economie Provisions may include Non-Eeonome Provisions may incude Effect and Retroactvly of other Economic Provisions of the CBA, artes may agree on the suspension of the CBA fora certain pesied Procedure for Registration Where a petion i fied ARTICLE 266" INJUNCTION PROHIBITED ‘The folowing ae authorized 1 'ssue injunctions or restraining orders sisiction to eau injunctions [ARTICLE 257: NON-ABRIOGEMENT OF THE RIGHT TO SELF ORGANIZATION, isha be unsawt for any person fo UNFAIR LABOR PRACTICES - . 142 TITLE SIX: UNFAIR LABOR PRACTICES CHAPTER I CONCEPT [ARTICLE 258: CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FOR THE PROSECUTION THEREOF Nature of Unalr Labor Practices Elements of Una Labor Practoe ‘Some Princples of ULP Col Case of ULP v. Cnminal Case of ULP. (CHAPTER I UNPAIR LABOR PRACTICES (ULP) OF EMPLOYERS. [ARTICLE 259: UNFAIR LABOR PRACTICE OF THE EMPLOYER intertoronce “Totaly of Conduct Doctine RULE ON TRANSFER OF EMPLOYEES ‘Yelow Dog Condition Contacting Out Gutsourcng is hot per se ULP ‘Company-Dominated of Union Discrimination ‘Test ‘Three Components of Distinination Discrimination Distinguished rom Classification Discrimination fr or against Union Membership Conetructve Diecharge ‘Securty Arrangements Pneites of Union Securty Clauses! Arrangements Different kings of Union Securty Arrangements Discrimination Because of Testimony ‘Subject mater of testimony Violation of Duty to Bargain, Runaway shop Sutace Bargaining : Pic Negotiation Violation of CBA [CHAPTER Il UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS [ARTICLE 260: UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS ‘The folowing acs are the ULPs of LOs ersons civil tae for ULP ‘Sweetheart Doctrine Blue Sky Bargaining STRIKES AND LOCKOUTS . 149 TITLE EIGHT: STRIKES AND LOCKOUTS ANO FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER STRIKES AND LOCKOUTS. ARTICLE 278: STRIKES, PICKETING AND LOCKOUTS Concerted Activity Labor eispute Some Principles on Strkes ‘The Law May Pronit Ske but nt the Right te Settorganization Lockout Nature ofthe Right to Strike and Lockout ‘Lockout ts deemed tats when ‘Alockout le deemed unin ‘sre v, Lockout Boyeot Kinds of Boycott Prexeting Requistes for Lawl Picketing ‘Strke-Bresker 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | xTABLE OF CONTENTS SAN BEDA MEMORY AID Zola ‘tke Ares Forms of Strikes ‘Economic Strke v. ULP Stike Grounds fr Stikes/Lockouts Gharactenstics of Strikes Protection of Stike Non-Stkeable ecues ‘Who may declare a Stike or Lockout Proceaural Requtstes, ‘Where to te the notice of strike or lockout Six (6) FACTORS AFFECTING LEGALITY OF STRIKES FIRST FACTOR: STATUTORY PROHIBITION Remedy of Government Employees ‘SECOND FACTOR: STRICT COMPLIANCE WITH PROCEDURAL REQUIREMENTS OF THE LAW Notice of Stke Cooting-off Period Strike Vote 7-Day Strke Ban THIRD FACTOR: PURPOSE; ULPIECONOMIC Purpose Test Conversion Doctrine FOURTH FACTOR LAWFUL MEANS AND METHODS Means Employed Test (Good Faith Strive Doctrine Doctrine of Means and Purposes ' When Sika is thega! FIFTH FACTOR: INJUNCTION. Wihen can the Secretary of Labor Assume Jurisdiction over a Strike Conditions for 8 Vals Exercise of the Assumption of duradicion Authorty Industes Indlapensable tothe Netlonal interest, Eticts ofthe Assumption of Jurisdiction ofthe Secretary Decision on the Assumed Labor Dispute Fnalty Ieeves thatthe Secretary of Labor Can Resolve when he Assumes Jurislction over @ Labor Dispute Entlement to Ste Duration Pay Elements for Entitlement to Strke Duration Pay Fue on Rematatement of Strking Workers Fle on Separation Pay of Strking Workers Requiremen! for trimum Operational Service : [SIXTH FACTOR: AGREEMENT OF PARTIES 4 ARTICLE 279: PROHIBITED ACTIVITIES. ino has Jurisdiction to Determine the Legality of Stike and Lockout? Labor Organizations No Strike of Lockout shal be declared ‘Who may lose employment by reason of strke Pronibtew Activites under Artcle 279 Third Persone Employers ule Oficial or Employee rotted Acts by Persone Engaged in Picketing Rue on Defiance of Assumption or Certification Order oc Retum-to-Werk Order pursuant thereto issued by the DOLE Secretary or the NERC, Fue on Backwages in strike ; ule on Hiring of Replacements llega Dismissal in Relation to Strke Res Judicata Reinstatement ARTICLE 280" IMPROVED OFFER BALLOTING. Reduces Ofer Balloting Improved Ofer Balong v. Reduced Ofer Balloting ARTICLE 281. REQUIREMENT FOR ARREST AND DETENTION CHAPTER TWO. ASSISTANCE TO LABOR [ARTICLE 262: ASSISTANCE BY THE DEPARTMENT OF LABOR, [ARTICLE 263: ASSISTANGE BY THE INSTITUTE OF LABOR AND MANPOWER STUDIES FOREIGN ACTIVITIES eee on 161 (CHAPTER THREE: FOREIGN ACTIVITIES [ARTICLE 204° PROHIBITION AGAINST ALIENS, EXCEPTIONS ARTICLE 268 REGULATION OF FOREIGN ASSISTANCE [ARTICLE 286: APPLICABILITY TO FARM TENANTS AND RURAL WORKERS. Strikes nthe Medical File CHAPTER FOUR’ PENALTIES FOR VIOLATION [ARTICLE 287: PENALTIES ‘labity of Persone Commiting Prohibited Acts under Article 278: ‘Ati 287(b)v. Article 303, TITLENINE SPECIAL PROVISIONS. ARTICLE 288; STUDY OF LABOR MANAGEMENT RELATIONS. xiv | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS:TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 ARTICLE 280: VISITORIAL POWERS Vistonal Power under Aricie 128 v. Ace 280 ARTICLE 290: TRIPARTISM AND TRIPARTITE CONFERENCES (a8 amended by RA 10395) Trpartism “Tpartism is observed in the folowing government agencies Funetons of IPC ARTICLE 201: GOVERNMENT EMPLOYEES ‘ARTICLE 292: MISCELLANEOUS PROVISIONS. ‘TERMINATION OF EMPLOYMENT 164 ‘TITUE ONE: TERMINATION OF EMPLOYMENT ARTICLE 204: SECURITY OF TENURE Security of Tenure Conseauences of the Violalion of Workers Securty of Tenure Reinstatement Reinstatement order by LA v. Reinstaloment order by NLRC Forms of Reinstatement Effet ofthe Reversal of Labor Arbiter’ Decision to the Reinstated Employee “Termination of Employer's Duly to Restate Rules on Recovery of Accrued Wages {Two teat to determine whether an employee Is bared (Court may Oraer the Reinstatement ever i the Prayer ofthe Complaint didnot Inctude such Relief Separation pay n led of Reinstatement Intances where SPIR was awarded ‘Components f SPIR per prevaling jurisprudence ened Covered Salary Rate to be used inthe computation Doctrine of Staned Relations Reuisites Backwages “Computation of Backwages Rute on Backwages Inclusions in the Computation of Backwages Reinstatement v. Backuages Separation Pay v. Backwages Variations inthe grant of backwages Reinstatement Without Gackwages Reinstatement with Limes Backweges Monetary awards to legally dismissed OFWs [OFWs who are terminated without ust, vai or authorized cause are entitled to ARTICLE 297: TERMINATION BY EMPLOYER ‘Tuet Causes of Diemiseal by Employer {Guicetnes to Determine the Vals of Termination Totaly of inactons Doctine Entitlement to Separation Pay ‘Two fold Due Pracese Requirement JUST CAUSES OF DISMISSAL SY EMPLOYER BIscUSsION ON JUST CAUSES 4 Serious Misconduct equistes 2, Wit! Disobestence or insubordination Requistes 3, Gross and Habitual Neglect of Duties Requisites Forms of Neglect of Duty Regusites Due Process in Abendonment 4. Fraud or Witt Breach of Trust Frau ‘Wal Breach of Trust ‘Requisite: for Fraud or wif Breach of Trust Lose of Confidence Requistes for Loss of Confsence Guides ‘Two Glasses of Postons of Tast 5. Commision ofa Crime or offense Requistes 6. Analogous Causes Requistes ther sust Causes Recognized under Other provisions of he Labor Code Doctrine of ncompatoaty Doe Process tobe Observed by the Employer Gusding Principies in Connection with the Hearing Requirement in Dismissal Cases Burden of Poot 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | xvTABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Degree of Proot ‘Substantial evdence When Dismissal fora Just or Authorized Cause but Due Process was not Observed “Mositcation of Agabon Cas Modieation ofthe Ruling in JAKA Case Preventive Suspension ‘what constitutes reasonable time and other requirements fr procedural due process Instances when Hearing s NOT Required Seven Stustions in Termination Disputes Indemnity the form of nominal camages ‘Some prieples under the Agabon Doctine ‘Suspension of Effects of Termination ARTICLE 208" CLOSURE OF ESTABLISHMENT ANO REDUCTION OF PERSONNEL. [ARTICLE 209: DISEASE AS GROUND FOR TERMINATION AUTHORIZED CAUSES OF DISMISSAL. 4 Automation / Redotics Requistes 2. Redundancy ‘equates Evidence to Substantiate Redundancy ‘Additonal requisite 3. Retrenchment: (Opwnsizing) Requsites Revenchment vs, Redundancy ‘Uget in, Fret Out Rule (IFO) Hobson's Choice 4. Closure of Cessation of Operation of the Establishment or Undertaking Requisites: ‘Common requisites of authorized causes under Article 208 ‘Competent public health authority ‘Otner Authorzed Causes Procedural Steps Required ‘Rules on Payment of Separation Pay ‘Dismissal for Just Cause v. Termination fr Authorized Cause ‘Requirements for Termination ARTICLE 200: TERMINATION BY EMPLOYEE Biamissal Resignation Vountary Resignation Intention to Resign Constructive Dismissal Test of Gonstrucive Dismiss Temporary Lay-Of [ARTICLE 301" WHEN EMPLOYMENT NOT TERMINATED Floating Stats Notice Required RETIREMENT FROM THE SERVICE . sent ‘TITLE TWO : RETIREMENT FROM SERVICE ARTICLE 302° RETIREMENT Retirement. kinds of Retioment Schemes Retirement Age, Rule on Mining Employees (R.A, No, 10797) Surface mine workers Compulsory Retirement Age below 60 Aowed Extension of Service of Retiree Benefte Exempled frm the payment of retrement pay are Diference between Voluntary and involuntary Retirement RETIREMENT PAY LAW (R.A. NO. 7641, AMENDING ART. 302 [287] OF LABOR CODE) overage eenpion inert Rete Senos Requrement FRetrement Plan vir ave Retroment Pay Law Retrement Pay ender he Labor Cogs vs, Retirement Pay under the GSIS, SS, end PAG-IBIG Sontibutoy Retirement Plan Nomcontabtory Reement Pan xvi | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS, 180 182TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 JURISDICTION AND REMEDIES FLOW OF DISCUSSION 184 LABOR RELATIONS 185, Existence of E-Ee Relationship Reasonable Causal Connection Rule Power to Determine Existence of Ee Relationship Labor Aiters May Exercise Jursaiton Even Absent the Employment Relationship Labor Disputes are NOT Subjoct to Barangay Conclation Labor Dispute Test of Ciera of Labor Dispute Types of Labor Disputes, Remedies in Labor Depites GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION 186 TITLE Vil: GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION ARTICLE 273: GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION Constitutional Basie Subject Mater GRIEVANCE MACHINERY ‘Grevance GGevance Machinery Grievance Procedure Nature of Grievance Procedure (CBA Provisions Subject of Grievance Machinery Bypassing the Grievance Machinery: ULP ‘Absence of Grievance Machinery inthe CBA, Procedure in Handing Grievances \aldty and Binding Effect of Decisions of Grievance Commitee Elevation of Grevance to Voluntary Arbitration Procedure in Submiting UnresoWved Grievances to Arbitration {Labor Management Counel (LMC) v. Grievance Machinery ARTICLE 274: JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS NOLUNTARY ARBITRATION Compulsory Arbitration ‘Voluntary Arbitration Voluntary Arbitrator kinds of Voluntary Arbitrators Minimam Requirement to be Accredited as Voluntary Arbitrator Voluntary Afbtraor is diffrent rom 2 Mediator POWERS AND DUTIES OF A VOLUNTARY ARBITRATOR, ‘ute Requlstes for Stpuation of Facts JURISDICTION OF VOLUNTARY ARBITRATOR, Exclusive and Original Jrisdcbon Productuiy incentive programs duriedcton of Voluntary Arbitrators under the Acie 274 ofthe Labor Code Reteralo Voluniary Arbarators Concurrent Jordon Jursdton by Agreement ofthe Parties Rights Disputes Interest Disputes Unresolved Grievances Violations of CBA When jurediction is exercised ‘Number of arbitrators ‘Submission Agreement Notice to arate ‘The Notice to Arbiate should contain the folowing Conditions in Arbitraton through Notice to Aira Procedire Contents of Notice to Arttrate EFFECT OF MERGER AND CONSOLIDATION Wey Doctrine PLEADINGS AND APPEARANCE Winere to File Pleadings Service of Copies of Peadings Service of Pleadings, Notices and Awards Representations LEmtaton on Authonty to Bind Party PROCEEDINGS BEFORE VOLUNTARY ARSITRATOR 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | xiTABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Nature Setting of Initial Conference: Note 1 Parties Intl Gonterence Effect of Non-Appearance ‘Submission of Postion Papers ang otter Pleadings DECISION Rules on Decisions Motion for Reconsideration EXECUTION OF PROCEEDINGS Enforcement of Deession Motion forthe Issuance of Wet of Execution must be fled wih Effet of Fling of Petition for Cerrar withthe SC othe CA on Execution Remedies from Decisions of Voluntary ArDtstrs REPORTORIAL REQUIREMENTS. Maintenance of Case Records TTumover of Records Distinctions among a Vouintary Arbitrator, Mediator, and a Court of Law Modes of Elevating Labor Cases to the CA PETITION FOR CERTIORARI ‘Grave abuse of cretion amounting to lack or excess of jursdicton Rules on Pere (Course of Action ofthe CA FRule on Verflestion and Certfcate of Non-Forum Shopping Filing of Mtlon for Reconeideraton ‘SINGLE ENTRY APPROACH (SENA) AND ITS IMPLEMENTING RULES AND REGULATIONS (IRR) ENA ‘Guiaing Principle ‘Scope and Coverage ‘The 30-day Mandatory Conciation-Mediation Periog oneslaton- Mediation Requesting Party Responding Party Link of interest ‘What Should Be Fed to Initate SEnA Request for Assistance (RFA) Who May Fie Where ta Fle Single Enty Assistance Desk (SEAD) Single Enty Assistance Desk Orc (SEADO) ‘CoConataton Mediation ‘Action onthe Request for Assistance Rate and Assignment of REA. Modes of Service of Notice of Conferenc> Schedule of Conferences, CONDUCT OF CONCILATION- MEDIATION ‘Appearance of Paes ‘Appearance of Lawyers, Agents or Representatives Conciliation. Mediation Process Bretermination of tee 20-day Mandatory Conciliation Mediation Period “Termination of Mandatory Concaiaton-Medaion Proceedings lesuance of Referral ‘Contents of Referral ‘Confidentiality of Proceecings and Minutes SEnA Process Flow NATURE AND CONTENTS OF SETTLEMENT AGREEMENT ‘Types of Settlement Agreement Effect of Settlement Agreement [Non-Compliance wth Setlement Agreement, Execution DUTIES AND NORM OF CONDUCT Duties of SEADO LABOR ARBITER so a ARTICLE 224: JURISDICTION OF THE LABOR ARBITERS {abor Arter (LA) ‘Gusitcatons of Executive Labor Artes Various Powers of te UA JURISDICTION. ‘Laws Conferring Jurisdiction on Labor Ariens (Gates Cognizable by Regutar Courts Exceptions tothe Orginal and Exclusive Jurisdiction of LA ‘Junedioton over ULP Case ‘Jurisdiction aver Itegal Demissal Cases Ruling in Cate of Cantict Setween LA and VA‘ Jursdition ‘lutesietion over Money Claims ei | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS 195, 200TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 Claims Arising from Er-Ee Relationship includes Employers! Claims Against an Employee Distinction Between Jusieccton of VA and LA over Money Claims Jurisdiction over Contested Cases Requisite to divest Regional Directors or their representatives of jurisdiction -husdetion ever Claims for Damages ‘Jusdiction over Legally of Strikes and Lockouts ‘urledictonaliterlay in Strike or Lockout Cases Jutiscleton over Cases involving Legslaed Wage Increases and Wage Distortion “loiecton over Enforcement ar Annulment ot Compromise Agreements Susiseeton over Executon and Enforcoment of Decisions of Voluntary Arbitrator Surseicton over Cases of OFWS. ‘Other Issues over whicn LAs have Juredicton Tne LA has ne Junsdiction over when Can a Fereign Law Govern an Overseas Employment Contract, VENUE, ASSIGNMENT AND DISPOSITION OF CASES AT THe REGIONAL ARBITRATION BRANCH ‘Werkplace Rules on Venue Change of Venue Venue in OFW Cates Ratfle and Assigement of Cases Consolidation of Cases and Complaints Disposition of Cases. PROCEEDINGS BEFORE THE LABOR ARGITERS Nature of Proceedings ‘Summans Contants of Summons Medes of Service Prohibited Pleadings and Motions Mation to Dsmise Mandatory Conciiation and Mediation Cenference ‘Who Presices Over and Takes Full Contol of the Proceedings Compromise Agreement Substantial Requrrements Formal Requirements When Compromise Agreements may be ffected ‘The Compromise Agreement shall be approved Judgment Based on'a Compromise Agreement ‘Compromise Agreements wath Assistance v- Without Assistance of DOLE ‘Options when Compromise Agreements Violated Effect ofa Compromise Agreement When Mandatory Conciiaion and Mediation Conference is Terminated Motion for Postponement Effect of Faiure of Settlement Non-appearance of the Complainant NNon-Appearance ofthe Respondent Subsequent Actions ‘Amendment of Complaint or Peston Suimission of Positon Paper and Fepy Limitations on Position Papers Reply Hearing o Cirfestory Conference ‘Witen Caled written summary ofthe proceedings made by he Labor Arbiter shal Nonappearance of Parbes, and Postponement of Hearings and Clarficatory Conferences Effects of Non Appearance of any ofthe Parbes during he Clariteatory Conference Submission of the Case for Decision inmotion Period o Decide Case Contents of Decisions Death of Parties, Pinalty of he Decision or Order ofthe LA Cortese af Final Revval and Re-Opening or Re-Filng of Dismissed Case and Lifting of Waiver APPEALS ‘Grounes ‘Were to File Appeat Periods of Appeal Period to Appeal Not Extendible Nature ofthe petiod to appeal Regulates for Pertection of Appest aTABLE OF co NTENTS SAN BEDA MEMORY AID 2018 rsation Frocestre fiudieal Review GOVERNMENT SERVICE INSURANCE SYSTEM 286 Coverage RResson forthe Compulsory Retirement of Government Employee Exceptions to the Compulsory Coverage Classes of Membership State of Membership Entectvty of Membership Effect of Separation from Service Benes Monthy Pensions Separation Benefits ‘Processing of Separation Benefit of Members Who Died While Thet Claims Are Being Processed Unemployment or involuntary Separation Benet ‘Benett Retirement Benstits (Choice between Eeneitons ‘When Benefts become Vested Rights Etfect of Re-Employment Permanent Disabity Benefits ‘Kinds of Permanent Diabilty Permanent Total Diesbity Benefits Injuries Deemed as Permanent Total Disabilies Suspension of Disabilty Benefta Permanent Partai Disabilly Benet Permanent and Partal Disablities ‘Temporary Total Disabity Benet “Conaltone Proton Extension of Payment of Beneft Non Sehedute Oisobiky Survivorship Benet ‘Conations for Entiement Death of a Member Funeral Benet. Life insurance Benefts Loan Grant “Automatic Policy Loan ‘Adjudication of Claims and Disputes Prescription of Claims Srsation ‘Appeal Exeestion Exemplion from Tax, Legal Process and Lien Vioiations ofthe GSIS Law with Penal Provisions ‘Whe may e'@ Criminal Action LIMITED PORTABILITY LAW (R.A. NO. 7699) . eens 293 Policy ofthe State Coverage Centations $otaization Porabity Crectable Services ered of Contabution (Overlapping of periods Benefits ‘otalzation shal apply inthe folowing instances Responsibaty of he Systems Proportional of Benefits NATIONAL HEALTH INSURANCE ACT OF 2013 R.A. NO. 7875, AS AMENDED BY R.A, NOS. 9241 & 10606 294 Foley of te State General Objectives SPECIFIC RULES CONCERNING COVERAGE OF EMPLOYEES IN THE FORMAL SECTOR Registration of Employees inthe Formal Sector ‘thgatone of Employers Rate of Premium Centoutons xvi] 2018 SAN BEDA CENTRALIZED BAR OPERATIONSTABLE OF CONTENTS SAN BEDA MEM@RY AID 2018 Mandatory Appropriation of Premium Contibuton for Government Agencies Payment of Premium Contnbutons FRomitance of Premiums of Employees with Income Gaps Premium Payment ofthe Government and Prwvate Employee Membors with Multiple Employment ‘SPECIFIC RULES CONCERNING COVERAGE OF HOUSEHOLD WORKERS: Registration of Household Workers Premum Payment of Household Help SPECIFIC RULES CONCERNING COVERAGE OF INFORMAL SECTOR WORKERS. ‘Payment of Cantnbutions ‘Cessation from Formal Employment or Coverage as Indigent, Sponsored Member or as Migrant Workers Retroactive Payment of Premium Contribution ‘SPECIFIC RULES CONCERNING COVERAGE OF INDIGENTS, deniiication and Envotnent of Inigonts Payment for Premium Contbustons ‘Women as Primary Members Enroliment of Crizens of ter Countries Working in the Philippines SPECIFIC RULES CONCERNING COVERAGE OF SPONSORED MEMBERS ‘Payment for Sponsored Members’ Contributions SPECIFIC RULES CONCERNING COVERAGE OF LIFETIME MEMBERS ‘Requires Number of Movthly Premium Contributions te Qualfy as Lifetime Member Litetie Member with Curent Soutee of income PPhaHealth Coverage a Requisite for lesuance or Renewal of License / Permits BENEFITS Enitlament to Benefits Dependents Continuation af Entement o Benefits in Case of Death of Member ‘Benefits of Members and the Dependents Confined Abrooa HOME DEVELOPMENT AND MUTUAL FUND LAW OF 2009 (R.A. NO. 9679) 300 Policy ofthe State Provident Choracter Exemption fom Tax, Legal Process and Lien COVERAGE Mandatory Coverage and Membership of Employees Mandatory Coverage of Employers Voluntary Coverage Voluntary Coverage of Fulltime Spouse Eftectve Oats of Mandatory and Voluntary Membership and Coverage Registration of Employers Registration of Employees Registration ofthe Selremployed Membership Tem “Termination of Membership Retirement Permanent Total Disabitty Employers Fiduciary Obigation Effect of Leave Without Pay of Suspension fem Employment Effect of Resignation or Separation trom Employment. BENEFITS. ‘Savings or Provident Savings Program Short-Term Loan Programe’ Housing Programs ‘Eigibity Requirements for Housing Loan Death Benet Dividend Mandatory Contibutery Support of the Employer bets of the Employer shal not Prejudice the Member Retum of Contibutlons Pontablty of Membership Optional Withdrawal of Contributions Pag IBIG Contnbutione Are Excuded trom the Computation ofthe Gross Income Payment of Claims and Benefts ‘Adjudicaton and Setlement of Clams and Disputes PATERNITY LEAVE ACT OF 1996 (R.A. NO. 8187) - Patemity Leave ‘Coverage Conditions for Entioment - ‘Appleation for Paternity Leave ‘esiiment Non-commutaton of Benois and Non-Diminuton Clause Creating of Existing Benes Penalty 306 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | xuTABLE OF CONTENTS SAN BEOA MEMORY AID 2018 MATERNITY BENEFITS LAW (SECTION 14-A OF R.A. NO. 1161, AS AMENDED BY R.A. NO. 7322, FURTHER AMENDED BY R.A. NO. 8282) Maternity Leave Beneft ‘Quaifeatone for Entitement of Maternity Benet Conations PARENTAL LEAVE/SOLO PARENTS" WELFARE ACT (R.A. 8972) Parental (Solo Parent) Leave Solo Parent hirer Conslitons for Entilement of Parental Leave ‘Non Conversion af Parental Leave. reciting of Existing Leave rontion on Work Discrimination Flexible Work Schedule LEAVE FOR VICTIMS OF VIOLENCE AGAINST WOMEN AND CHILDREN (R.A. NO. 9262) Violence Against Women and Their Chidren | Enled ta Leave Non-cumulative and Non-Conversion Cau Dirisdeton Penalties of Employers who Violated tis Act ‘SPECIAL LEAVE BENEFITS FOR WOMEN (R.A. NO. 9710) .... ‘Special Leave Benefits for Women Gynecologic Surgery Leave Gynecological cisorders anaitone Benet Frequency of Avaiiment NNon-commatation of te | Spedial Leave Senef Vis-AVis SSS Sickness Benefit Special Leave Benefit Vis-A‘Vie Existing Statutory Leaves ‘Special Leave Benet Vie-A-Vis Watery Leave Benet ‘Crediing of Existing or Similar Benefits ‘SPECIAL GROUPS OF EMPLOYEES TITLE Il WORKING CONDITIONS OF SPECIAL GROUPS OF EMPLOYEES MAGNA CARTA OF WOMEN Magna Carta of Women, Poly ofthe State Pinipie of Human Rights of Wémen Diserminaton against women Marginalzed, ‘Waren Empowerment Substantive Equal, ‘Gender Equaity ‘Gender Equi ‘Gender and Development (GAD) ‘Gonder Mainetreaming ‘Attemative Acton “Temporary Special Measures violence agamst Women Women inthe Millay, Poice and Other Similar Services ‘Women in Especialy Diicut Creumetances (WEDC) ‘National Commission on the Role of Fipine Women (NCRFW) ‘Social Protection ‘Human Fights of Women Fights of Every Woman ‘Economie Rigs olical Partepation Social Legal Fighis Rights of Women inthe Marginaized Sectors Coverage Primary Duty ofthe Staten Relation to Human Rights of Women ‘Specite Responsibiltes of the Government CHAPTER | EMPLOYMENT OF WOMEN. [ARTICLE 120: FACILITIES FOR WOMEN ARTICLE 131: MATERNITY LEAVE BENEFITS [ARTICLE 132: FAMILY PLANNING SERVICES: INCENTIVES ARTICLE 133: DISCRIMINATION PROMIBITED ‘ots of Dicrmination ARTICLE 134: STIPULATION AGAINST MARRIAGE sexi | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS 307 308 309 310 310TABLE OF CONTENTS SAN BEDA MEMORY AID 2018 ‘No-Spouse Employment Pokey ‘Bona Fide Occupational Qualfeaion Rule (BOG) Factors to be Established for Enblement of BOQ Wight stancards of ine Companies ARTICLE 135. PROHIBITED ACTS Prohibed Acts against Women Workers ARTICLE 136: CLASSIFICATION OF CERTAIN WOMEN WORKERS. ANTI-SEXUAL HARASSMENT ACT (R.A. NO 7877) 318 Declaration of Poke ‘Who May Commit Gravamen ofthe Ofense ‘When Senuat Harassment Pnishabie How Commits Duy ofthe Employer or Head of fice in a Work-Related, Education or Training Envronment LUaaity of te Employer or Head of Offce, Educational or Training instution Independent Acton fr Dameges Penaties Prescription EMPLOYMENT OF MINORS nnn a 316 (CHAPTER I EMPLOYMENT OF MINORS. ARTICLE 137: MINIMUM EMPLOYABLE AGE. [ARTICLE 138: PROHIBITION AGAINST CHILD DISCRIMINATION. ‘AN ACT PROVIDING FOR THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING STRONGER PROTECTON FOR THE WORKING CHILD (RA. 231), Poley hie Child Labor Werking Chita Publ Enertainment of information Employer Collective Needs ofthe Family Workplace ‘Aterative Learning System Forced Labor and Slavery Normal Development of the Chic ‘When State May intervene in Behalf ofthe Child Employment of Criaren Vallaty or Work Permit Coverage of Working Chik Permit ‘Grounds for Suspension and Cancellation of Work Permit Hours of Work ofa Working Chia ‘Maximum Number of Hours of Work ‘Ownership, Usage and Adminstration ofthe Werking Chl’ income: Preservation of the Working Css incom ‘when income is at least P200,000, ‘When income is iss than 200,000 Pronioiton against Worst Forms of Child Labor Prohibition onthe Employment of Charen in Certain Advertisements ‘Access to Education and Training for Working Cilen ‘Trust Fund tom Fines and Penaties \Whhe may File a Complaint on Cases of Unlawul Acts Committed Against Children “edition Brelminary Investigation Tea Exemption trom Fling Fees ‘Acoese to immediate Legal, Medical and Psycho Social Services EXPANDED SENIOR CITIZEN'S ACT (R.A. NO. 9994) Declaration of Pot Sener Cizen or Eidery Paleges Government Assistance for Employment Incentive to Employ ‘Ste tor Senior Cizens Atairs (OSCA) 324 EMPLOYMENT OF HOUSEHELPERS . 322 ‘CHAPTER il EMPLOYMENT OF HOUSEHELPERS. Siontieance ‘Excluded from the detiniton Employer Houeehols 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | xxTABLE OF CONTENTS SAN BEGA MEMORY AID 2018 Rights and Privieges of a Kesambahey re-Employment Contact Pre-Employment Requrements Registration of Domestic Workers Reerutment and Fingers Fees Deployment Expenses, Prohibition on Deposit for Loss or Damage Prohibition on Debt Bondage Debt Bondage Deduction for Loans/Debis ‘Terms and Conditions of Employment Principle on Pre-Terminaton of Employment ‘Minimum Wage Payment of Wages leave Benefts 33" Monin Pay Social and Other Benefits Fights and Privieges of Empoyer Renewal of Contract “Terminaton of Employment Employer Unlawul Acts, Mechanism for Sellement of Disputes Comptance Order ‘Motion for Reconsideration Appeal Otner Cases EMPLOYMENT OF HOMEWORKERS ses 327 (CHAPTER IV: EMPLOYMENT OF HOMEWORKERS [ARTICLE 151: REGULATION OF INDSUTRIAL HOMEWORKERS Industriel Homeware Househelpers v. Homeworkers ‘Where Complaints shouldbe ied Prohibited Homewerk Rights ana Benets of Homeworkars ARTICLE 199: DISTRIBUTION OF HOMEWORK Employer of Homeworkers Decuctons ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS (R.A. NO. 10151 REPEALING ARTICLES 130 & 431 OF THE LABOR CODE) 328 CHAPTER V: EMPLYONENT OF NIGHT WORKERS ARTICLE 194: COVERAGE Nght Worker ARTICLE 165: HEALTH ASSESMENT ARTICLE 156: MANDATORY FACILITIES Rights of Night Workers ARTICLE 187: TRANSFER Pregnant and Nursing Employees Now Diminution of Maternity Leave Benefits Protection against Dismissal and Loss of Benefits ARTICLE 180: COMPENSATION ARTICLE 160: SOCIAL SERVICES ARTICLE 161: NIGHT WORK SCHEDULE 120% | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS:THIS 1S THE INTELLECTUAL PROPERTY OF THE SAN BEDA COLLEGE OF LAW 2018 CENTRALIZED BAR OPERATIONS THE UNAUTHORIZED COPYING, REPRODUCTION, MODIFICATION, OR DISTRIBUTION OF ANY OF THE CONTENTS OF THIS BOOK IS STRICTLY PROHIBITED.LABOR STANDARDS SAN BEDA MEMORY AID 2018 [TRODUCTION CHAPTER I: GENERAL PROVISIONS ARTICLE 1: NAME OF THE DECREE Labor Code of the Philippines (P.D. No, 442, as amended, Art. 1) Labor 1. Itis the exertion by human beings of physical or ‘mental efforts, or both, towards the production of. goods and services. 2. It also means that sector éngroup in ‘which derives its livelihood chiefly from renditign, of work or services it exchange >" ‘compensation under managlrial of (MENDOZA, Philippine. Labor Welfare Legislation (2001), p. ‘MENDOZAJ. ARTICLE 2: DATE OF EFFECTIVI ‘The Labor Code took effect on Noveribien 1, months after its promulgation on May 1, {1974 Labor Legislation consists of statutés\ and jurisprudence governing the relation be capital and labor, by providing To ‘employment standards and a legal framene negotiating, adjusting and administering standards and other incidents of employmentc(? AZUCENA, The Labor Code with Comments and Cases (2076), p. 7) hereinafter, 1 AZUCENA, Labor Code] Labor Law governs the rights and duties of employers and employees, first, with respect to the terms and conditions of employment and second, with respect to the labor disputes arising from collective bargaining respecting such terms and conditions. Its major divisions include: 4, The Law on Labor Standards; and 2. The Law on Labor Relations. Note: Although the distinction between labor standards and labor relations is useful for academic purposes, they overlap in reality. For instance, the grievance machinery is a labor relations matter but very offen the subject of the complaint is labor standards such as unpaid overtime work or a disciplinary action (1 AZUCENA, supra at 8). ‘on Labor Standards deals with the as to wages, hours of work, and conditions of employment’ that provide their employees (1 at 7). bor Relations defines the status, ‘as the institutional the individual and employers, for Standards Laws and Labor Relations Ffot mutually exclusive; they complement ner. se “Labor Relations laws enable workers to obtain from their employers more than the minimum benefits set by the labor standards law (ALCANTARA, Reviewer in Labor and Social Legislation 2008, p. 2) Inereinafter ALCANTARA, Reviewer] Social Legislation 1. Those laws that provide particular kinds of protection or benefits to sociely or segments SUBJECT COMMITTEE TYLE"ARIANE M. REGENCIA Subject Chair, LERYHC ANDREI JIMENEZ Assistant Subject Chair, JAYSON P. HIQUIANA Electronic Date Processing, RAJIN ELLIS B. BARTOLOME EXECUTIVE COMMITTEE KATES JASTIN E._ AGUILAR Overall ‘Chairperson CHRISTINE P. MONDERIN Chairperson for Academics, CHESKA ARLA™C. AGRUPIS Choirperson for Hotel ‘Operations MARA CLARA'M. Labor Standards EDSEL MARC ESTRELIA "Vice Chair for E.DIAO. Labor Relations, (Operations MARY CYRIELL C.GINETTE P. LOPEZ. Jurisdiction SUMANQUI Vice Chair for and Remedies, KENT ARVIN C. Secretariat, ARTLYN GEM G. AQUINO Special Laws SENORAN "Vice Chair for Finance, ZAIRE. XANDRA MM. REYES” Vice Chair for Audit ‘ASMENAH. M. BARAMBANGAN Vice Chair for Electronic Data Procesing, MARTIN ALEC N. BAUTISTA Vice Chair for Logis, MARVIE PAGCALIWANGAN Vice Chair Jor Membership “ADVISERS, ‘ATTY. MARLON J, MANUEL, ATTY." FLORENCIO.M. MAMAUAG, JR, ATTY. JOYRICH M. “GOLANGCO, ATTY. PETERJOEY B, USITA, ‘ATTY. THERESE GENEVIEVE NUEVE-cO (MEMBERS JAMES BRYAN IBRAHIM: A. ALI, PAULA” DIANE BENTIEZ, CHINO 8. DELA CRUZ," MAERYL N. LAGUMBAY, SUZETTE RIA T. ERATO. FAYE TRIXIA G. PAZ, SHIELA MARIE D. PILARLABOR STANDARDS SAN BEDA MEMORY AID 2018 thereof in furtherance of social justice (1 AZUCENA, supra at 9); 2. That which requires payment of benefits by ‘government agencies to the worker or his family, when and while he cannot work, by reason of sickness, disability, old age, death, and similar hazards; and 3. It includes statutes intended to enhance the welfare of the people even when there is no ‘employer-employee relationship (ALCANTARA, supra at 2-3). 4. It includes laws that provide particular kinds of protection or benefits "to the society, in furtherance of social justice (DUKA, Labor Laws and Social Legislation: A Barrister's Companion (2016)}, p. 4) [Nereinafter, DUKA]. Labor Law v. Social Legislation eer Social Legislation Eicekaus ae employment compartaton employment (eg., wages) ‘Covers employment | Covers emplo for profit or gain profit and nof-pro een Tee ‘Affects the work of | Affects — thel”) lif ‘employe employee _~ EST the worker's employer | government leg Compensation Commission Note: Labor laws are social legislation but not all social legislations are labor laws (f AZUCENA, supra at 10). Welfare Legislation provides for the minimum economic security of the worker and his family in case of loss of eamings due to death, old age, disability, dismissal, injury, or disease. It also Fequires payment of benefits by the goverment agencies to the worker or his family when and while he cannot work, by reason of sickness, disability, old ‘age, death and similar hazards (ALCANTARA, supra at 1). Welfare Legislation v. Social Legislation er 2 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS Provides for the ‘minimum economic Provides for particular kinds of protection or security of the worker | benefits to society or | and his family in case | segments thereof in | of loss of eamings | furtherance of social due to death, old age, | justice disability, dismissal, injury, or disease, Predicated upon ‘Not ‘employer-employee relationship. predicated upon ‘employer-employee relationship; intended to enhance the welfare of people even when there is no employer-employee relationship. ‘Sources of Labor Laws: (C*LIP) 1. Constitution; 2. GontractCollective Bargaining Agreement; pany policies and regulations (China Corp. v. Borromeo, G.R. No. 156515, 19, 2004); won Ga Code, Chi Coda, and cir cial Laws) CHE ieibleteatno Rules and Regulations IRR): and enfBast proces (DOLE. PHL. Inv 7 Makabayang Obrero, G.R. No shuary 13, 2003). to a just Share juction; and Ude—Right to work under Humane conditions (CONST. Art. Xill, Sec. 3). "25 Under Labor Relations (COPE) ‘a. Right to Conduct collective bargaining or negotiation with management; b. Right to Organize themselves; ©. Right to Participate in policy and decision- making processes; and d. Right to Engage ‘in peaceful concerted activities including strike (CONST. Art. XII, Sec. 3) in the fruits of Equalities Guaranteed by the Constitution and Social Justice: (POL-VG) Equality of Political rights; Equality of Opportunity; Equality before the Law; Equality between Values received; and Equitable sharing of the social’ and material Goods on the basis of efforts exerted in their production (Guido v. Rural Progress Administration, G.R. No. L-2089, October 31, 1949),LABOR STANDARDS SAN BEDA MEMORY AID 2018 Constitutional Mandates 1 Article Il: Declaration of Principles and State Policies. Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and, an improved quality of life for all Sec. 10. The State shall promote social justice in ali phases of national development. Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. Sec. 13. The State recognizes the vital role of the youth in nation-building and shall promote spititual, and. protect their physical, moral, intellectual, and social well-being. inculcate ‘in the 5 ,patriati nationalism, and encourage thir invol public and civic affairs. Sec. 14, The State recogniz women In nation-building ard Stel 0 a {ihe fundamental equality before the: and men, Sec. 18. The State affirms labor: $8 ak Social economies force I shall protget th of workers and promote their welfaré, Sec. 20. The State recognizes indispensable role of the private encourages private enterprise, and incentives to needed Investments. Article Il: Bill of Rights Sec. 1. No person shall be deprived of life, liberty, or property without due process of law. nor shall any person be denied the equal protection of the laws. Sec. 4, No law shall be passed abridging the freedom of speech, of expression, of of the press, or the right of the people peaceably to assemble and. petition the government for redress of grievances. Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents ‘and papers pertaining 0 official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law, Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies “for Purposes not contrary to law shall not be abridged. _ Sec. 10. No law impairing the obligation of contracts shall be passed, Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies Sec. 18 (2). No involuntary servitude in any form, shall exist except as a punishment for a crime whereof the party shall have been duly convicted. XII: National Economy and Patrimony State shall promote the of Filipino labor, domestic ind. locally produced goods, and ures that help make "them Congress shall give highest priority jactment of measures that protect and the right of all the people to human sduce social, economic, and political s, and remove cultural inequities by equifably diffusing wealth and political power for 2atié common good, Sy To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. See. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and ‘equality of employment opportunities for all It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with Jaw. They shall be entitled to security of tenure, humane conditions of work, and a living wage. 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 3LABOR STANDARDS SAN BEDA MEMORY AID 2018 ‘They shall also participate in policy and c. Art. 1701. Neither capital nor labor shall act decision-making processes affecting their rights, oppressively against the other, or impair the and benefits as may be provided by law. interest or convenience of the public (Principle of Non-Oppression). The State shall promote the principle of shared responsibility between workers and employers. d. Art. 1702. Incase of doubt, all labor and the preferential use of voluntary modes in legislations and all labor contracts shall be setting disputes, including conciliation, and shall construed in favor of the safely and decent enforce their mutual compliance therewith to living for the laborer. foster industrial peace. Note: It is related to Art. 4 of the Labor The State shall regulate the relations between Code, “All doubts in the implementation and workers and employers, recognizing the right of interpretation of the provisions of this Code, labor to its just share in the fruits of production including its implementing rules and and the right of enterprises to reasonable regulations, shall be resolved in favor of retums on investments, and to expansion and labor.” growth (Protection-to-Labor Clause). ©. Art. 1703. No contract which practically Note: This is a very important labor amounts to involuntary servitude, under any provision under the Constitution. ‘uise whatsoever, shall be valid Sec. 13. The State shall establish 1708. The laborers wages shall not be agency for disablea ject to. execution or attachment, except rehabilitation, self-devel ar It debts jxGurred for food, shelter, clothing reliance, and their integration © and mégjeat attendance. mainstream of society. ). The employer shall neither seize Sec. 14. The State shall proter in any tool or other articles by providing safe and hei conditions, taking into account. a functions, ‘and such facilities and’ Sf fA }41710. Dismissal of laborers shall be that will enhance their welfare a 2 fo the supervision of the to realize their full potential in the-sb0yicky © Bigs / Goyeriment, under special laws. nation. 3 & 7 (Penal Code ./272. Slavery — The penalty of prision “eymayor and a fine of not exceeding P'10,000 Sec. 8. Tho State shall, from time (G2 shall be imposed upon anyone who shall review to increase the pensions and see purchase, sell, kidnap or detain a human benefits due to retirees of both the government being for the purpose of enslaving him. and the private sectors. 5. Article XVI: General Provisions Note: If the crime be committed for the Related Laws purpose of assigning the offended party to 1. Civil Code some immoral traffic, the penalty shall be . Art. 19. Every person must, in the exercise imposed in its maximum period. of his rights and in the performance of his duties, act with justice, give everyone his b. Art. 273. Exploitation of child labor — due, and observe honesty and good faith. ‘The penalty of prision correccional in its minimum and medium periods and a fine b. Art. 1700. The relation between capital and not exceeding P500 shall be imposed upon labor are not merely contractual. They are anyone who, under the pretext of, so impressed with public interest that labor reimbursing himsolf of a debt incurred by an contracts must yield to the common good, ascendant, guardian or person entrusted ‘Therefore, such contracts are subject to the with the custody of a minor, shall, against special laws on labor unions, collective the latter's will, retain him in hs service. bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of c. Art. 274.Services rendered under labor and similar subjects. compulsion in payment of debt — The penalty of arresto mayor in its maximum Period to prision correccional in its minimum 4 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONSLABOR STANDARDS SAN BEDA MEMORY AID 2018 period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. d. Art. 278. Exploitation of minors — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 shall be imposed upon: i. Any person who shall cause any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength, or contortion. ji, Any person who, being an. acrobat, gymnast, ropewalker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ _in ‘exhibitions of these kinds children under 16 years of age who are not his children or descendants. li, Any person engaged in am callings enumerated, int any descendant of his. lage in such dangerous jv, Any ascendant, guardi ‘age, who shall dl G9Fatuitously to any person ofthe callings enumerated i 2 hereof, of to any habitual va beggar. x ee It the delivery shall have bes made in consideration of any “pricy Compensation, or promise, the penalty shall in every case be imposed. iW maximum period In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority v. Any person who shall induce any child under 16 years of age to abandon the home of ‘its ascendants, guardians, curators, or teachers to’ follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar. fe. Art. 291. Revealing secrets with abuse of office — The penalty of arresto mayor and a fine not exceeding P500 shall be imposed upon any manager, employee, or servant who, in such capacity, shall eam the secrets of his principal or master and shall reveal such secrets, 1 Art. 292. Revelation of industrial secrets—The penalty of _prision correccional in its minimum and medium periods and a fine not exceeding P500 shall be imposed upon the person in charge, ‘employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry ofthe latter. 9. Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats — The penalty of arresto mayor and a fine not ‘exceeding P300 shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions of pital or labor, strike of laborers or lockout employer, ‘shall employ violence or its in $Uch @ degree to compel or force © the lal for employers in the free and LA\\édal exorcise of their industry or work, ifthe ct 'sHlall not constitute a more serious fidnge'in accordance with the provisions of is Gode. Laws 7? Soefal” Security System Law (RA. No. f apap): GSIS Law (R.A, No. 6291); National Health Insurance Act (R.A. No. “7875, as amended): 4, yPaterity Leave Act (R.A. No. 8187): ei Retirement Pay Law (RA. No. 7641): “=f. Home Mutual Development Fund Law (R.A. No. 9679); 9. Anti-Sexual Harassment Act (R.A. No. 7877); h. Special Protection of Children Against Abuse, Exploitation, and Discrimination Act (RA. No. 7610, as amended by RA. No. 9231); i. 13h Month Pay Law (P.D. No. 851, as amended) j. Migrant Workers and Overseas Filipinos Act of 1995 (R.A. No. 8042, as amended): k. Comprehensive Agrarian Reform Law (CARL) (R.A. No. 6657, as amended) | Magna Carta for Public Health Workers (RA. No. 7305): m. Limited Portability Law (R.A. No. 7699): 1. An Act Allowing the Employment of Night Workers (R.A. No. 10151) ©. Magna Carta for Disabled Persons (RA No. 7277); and 2018 SAN BEDA CENTRALIZED BAR OPERATIONSLABOR STANDARDS SAN BEDA MEMO RY AID 2018 P. Domestic Workers Act or Batas Kasambahay (R.A. No. 10361) Police Power as the Basis Itis the inherent power of the Government to enact laws} within constitutional limits, to promote the order, safety, health, morals, and general welfare of sociely (People v. Reyes, GR. No, L-45748, April 5, 1939). Social Justice as the Aim Social justice is neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively ‘secular conception may at least be approximated. Social justice means the promotion of the welfare of all people, the. adoption by the government of measures’ calculated to ensure Sconomic stability ofall the component elements of the society, through the maintenance of proper economic and social equlibrium in the inte Of the members of the community, const through the adoption of measures legally j or extra-constituionally, through powers underlying the existence of all governments! n the time-honored principle of ‘salus popuft-est Sram lox (Caan Witans, GFN #740, December 2, 1940). &% yore land the employer, who has resources t@ secu legal advice, the law has reason to demand fatter stricter compliance. Social justée in cases is not equality but. protection i(Ondé lonacio G.R. No. L-47178; May 16, 1980) Limitation: The cause of social justice is not'served by upholding the interest of the employees “in=seeti “Protection to labor disregard of the right of the company. Social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State -when it is used to shield wrongdoing (lamer v. NLRC, G.R. No. 112630, September 5, 1997) In protecting the rights of the workers, the law, however, does not authorize the oppression or self- destruction of the employer. The constitutional commitment to the policy of social justice cannot be understood to mean that every labor dispute shall automatically be decided in favor of labor. The constitutional and legal protection equally recognize the employer's right and prerogative to manage its ‘operation according to reasonable standards and norms of fair play (Imasen Philippine v. Alcon and Papa, G.R. No. 194884, October 22, 2014) Legislative discrimination Is therefore allowed and in many cases has been sanctioned provided there is 6 [2018 SAN BEDA CENTRALIZED BAR OPERATIONS 1@ exercise “of E Oat parly is reasonable basis for classification (1 POQUIZ, Labor Standards Law with Notes and Comments (2012), p. 7) [hereinatter, 1 POQUIZ, Labor Standards). ARTICLE 3: DECLARATION OF BASIC POLICY ‘The State shail: (APERA) 1. Afford protection to labor, 2. Promote full employment. 3. Ensure equal work opportunities regardless of Sex, race, or creed: 4. Regulate’ the relations between workers and ‘employers; and 5. Assure the rights of workers to: (CS*) a. Gollective bargaining: b. Just and humane conditions of work: ‘c. Self-organization; and 4. Security of tenure. Note: it is a shared responsibility aimed at a constitutional balance between protection to labor tion of oppression to capital 1e Protection Afforded: he protectigh of the rights of workers cénnot OF justi disregard of relevant facts in the s{ructign-of the text and applicable rules in epee at_a disposition in favor an =“ syfhpaity for the working men at the expense of Pivtbe employer (Caltex PHL, Inc. v. PH Labor |Fuanfeton, CR, No, L-£200, Api 29, 1969) hers both parties have violated the law, entitled to protection (PAMBUSCO Employees’ Union inc. v. CIR, \GRNo. 46727, Septomber 27, 1939); and authorizes’ neither ‘oppression nor self-destruction of the employer (Pacific Mil, Inc. v. Alonzo, G.R. No. 78090, July 26, 1991). ARTICLE 4: CONSTRUCTION IN FAVOR OF LABOR Iis construed in favor of labor if there is a doubt as to the meaning of the legal and contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms (Meralco v. NLRC, G.R. No. 78763, July 12, 1989) Limitations: 1. Protection to labor and resolution of doubts in favor of labor cannot be pursued to the point of deliberately committing a miscarriage of justice. The right to obtain justice is enjoyed by all members of society, rich or poor, worker or ‘manager, alien or citizen (1 AZUCENA, supra at 27),LABOR STANDARDS SAN BEDA MEMORY AID 2018 2. The law also recognizes that management has rights, which are also entitled to respect and enforcement in the interest of fair play (St. Luke's Medical Center Employee's Ass'n. v. NLRC, G.R. No, 162053, March 7, 2007) In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety land decent living for the laborer (CIVIL CODE, Art 1702). Itis fundamental in the interpretation of contracts of ‘employment, doubts are generally resolved in favor of the worker. It is imperative to uphold this rule herein. Hence, any doubt or vagueness in the provisions of the contract or employment should have been interpreted and resolved in favor of the worker (Centro Project Manpower Services Corp. v. Aguinaldo Naluis, G.R. No. 160123, June 17, 2015) When in doubt, the appreciation of Evi r In favor of Labor A ‘The rule enunciated in Article 4°9f the Labor Code likewise applies in the appreciation of evidence in labor proceedings. If doubts exist: betwesh thé evidence presented by the em employee, the scale of justice must bg fi Of the latter (Dreamland Hotel Resort. G.R. No. 191455, March 12, 2014). ft When there is doubt between the ‘submitted by the employer and that submit employee, the scales of justice must favor of the employee (Misamis Oriental IL Service Cooperative v. Cagalawart, “GR. 175170, September 5, 2012) Reasons for Affording Gr Employees: 1. In accordance with the doctrine that those who have less in life should have more in law (Easter Shipping Lines v. POEA, G.R. No. 76633, October 18, 1988), 2. Inthe matter of employment bargaining, there is, ‘no doubt that the employer stands on higher footing than the employee (7 AZUCENA, supra at 27); 3. There is greater supply than demand for labor (la); ane 4. The need for employment by labor comes from vital, and even desperate, necessity (Sanchez v. Harry Lyons Construction Inc., G.R. No. L-2779, October 18, 1950). Extent of Protection to Labor ‘The protection to labor extends to an employee who Is abused either by the employer or by the union leadership or their respective representatives. Quasi-Legislative Power ‘The Labor Code itself vests the DOLE with rule- making powers in the enforcement thereof (PASEI v. Drilon, G.R. No, 81958, June 30, 1988). However, a tule or regulation promulgated by an administrative body in excess of its rule-making authority is void. An administrative interpretation Which takes away benefits granted in the law is ultra vires (CBTC Employees Union v. Clave, G.R. No. L- 49582, January 7, 1986). ARTICLE 5: RULES AND REGULATIONS ‘The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation (LABOR CODE, Art. 5) Revised Administrative. Code of 1987, Book Vil, Chapter 2, Sec. 3(1) and Sec. 4 also require the filing of 3 certified copies of the administrative rules and regulations with the UP Law Center. ative rules and regulations must be | their purpose is to enforce or implement Pursuant to a valid delegation (Tanada v.Tavera, G.R\No. L-63915, April 24, 1985; Philsa International Placement & Services Corp. v. Sec. of 103144, April 4, 2001). LICABILITY Tine Code apples 10 all workers, B aoecatural or non-agricultural, inducing Bie’ in a.” govomment. corporation iacooprated ndor tho Corporation Code [LABOR ¥ CODE, 98 ppended by PD. ‘No. 570-A, Art. 6). Exdeot jos: (CELFI) 1 Goporate offesrfnta-corporate dsputes under “PB. No. 902-A now fall under the jurisdiction of ‘he ‘Regular Courts. pursuant to the Securities Regulation Code (Nacpil v. IBC, GR. No. 144767, March 21, 2002); 2. Employees of government-owned or controlled corporations (GOCC) created by special or original charter. Such employees are governed by the Civil Service (Juco v. NLRC, G.R. No. 98107, August 18, 1997): ‘The phrase ‘with original charter” refers to corporations chartered by special law as distinguished from corporations organized under the Corporation Code (NASECO v. NLRC, G.R. ‘No. L-69870, November 29, 1988). Note: Employees of GOCCs incorporated under the Corporation Code are governed by the Labor Code (Id). 2018 SAN BEDA CENTRALIZED BAR OPERATIONS 17LABOR STANDARDS BEDA MEMORY AID 2018 3, Local water districts (Tanjay Water District v. Gabaton, G.R. Nos. L-63742 and 84300, April 17, 1989); Exception: Where NLRC jurisdiction is invoked (Zamboanga City Water District v. Buat, G.R. No. 104389, May 27, 1994); foreign governments (JUSMAG-PHL v. NLRC, G.R. No. 108813, December 15, 1994); and 5. International Agencies (Lasco v. UNRFNRE, GR. Nos, 109095-109107, February 23, 1996). ‘employees of intergovernmental or international organizations (SEAFDEC-AQD v. NLRC, G.R. No. 86773, February 14, 1992). EMANCIPATION OF TENANTS (CHAPTER II; EMANCIPATION OF TENAI (P.D. No. 27, as amended by RA. Ne Comprehensive Agrarian Reform Law’ ( RA. No. 9700 Comprehensive Agraria Program Extension with Reforms (CARPERD proclaimed as land reform area. The: dec further strengthened by legislation, -P:D. ‘emancipating the tenants from the ice soil and transferring to them the ownership land they til and providing the instrutyénis “8 mechanism therefore. Agrarian Reform means the redistribution of iands,, regardless of crops or fruits produced, to farmers and regular farm workers who are landless, irrespective. of tenurial arrangement, to include the totality of factors and support services designed to lift the economic status of the beneficiaries and all other arrangements altemative to the physical redistribution of lands, such as production or profit- sharing, labor administration, and the distribution of shares of stock, which will allow beneficiaries to receive a just share of the fruits of the lands they work (R.A. No. 6657, Sec. 3(a)) ‘Three Components of Agrarian Reform: 1. Land Acquisition and Distribution 2. Agrarian Justice and Delivery 3. Support Service Relevant Constitutional Provisions: 1. Art. Il, Sec. 21 - The State shall promote comprehensive tural development and agrarian reform. 8 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS, @psuch 2. Art. Xill, Sec. 4 - The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they til or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just ‘compensation. In determining retention limits, the State shall respect the rights of small landowners. ‘The State shall further provide incentives for voluntary land-sharing. P.D. No. 27 v. CARL (R.A. No. 6657) & CARPER (R.A. No. 9700) Doe Gs fers) Papricultural lands | Alt public. and_ private primafty-devoted to rice | agricultural lands and com under system | including other lands of ‘of sfiafetrop/or lease- | the public domain > whether | suitable for agriculture, 3@ landed ECE Landowner -may retain | in no case shall the ‘an aréa nat more than 7 | retention by the jrectares/ if such | landowner exceed 5 landowner i8 cultivating | hectares. atpa.’or will now oultivatet, 3 hectares may be awarded to each child of the landowner, if he is (1) at least 1 years of age; and (2) actually tiling the land or directly managing the farm. CARPER, Provincial, city and municipal’ government units acquiring private agricultural lands _ by expropriation or other modes of acquisition to be used for actual, direct and exclusive public purposes shall not be subject to the S-hectare retention limit SAT UnderLABOR STANDARDS SAN BEDA MEMORY AID 2018 The Land Bank of the Equivalent to 2% times Philippines (LBP) shall the average harvest of 3 Rormal crop years | compensate the immediately preceding | landowner in such the promulgation of P.O. | amount as may be No. 27. agreed upon by the landowner and the DAR and LBP or as may be finally determined by the cout as just ‘compensation for the land. AON No tite to the land] Lands acquired by owned by tenant-farmers | beneficiaries under under P.D. No. 27 shall | CARL may not be sold, be actually issued to a | transferred or conveyed tenant-farmer unless | for a period of 10 years and until the tenant- | except through farmer has become a | hereditary succession or {ullfledged member of a | when sold, transferred or i, all lands with 18% slope and over (R.A. No. 6687, Sec. 10) Those Exception: lands which were already developed Emancipation Patent is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation Of the tenant from the bondage of the soil The emancipation patent vests upon the farmer beneficiary absolute ownership over the landholding, and it constitutes conclusive authority for the issuance of an original or transfer certificate Of tille in his name (Maylem v. Ellano, G.R. No. 162721, July 13, 2009). Purpose of Prohibition against Alienation: 1. Preserve the landholding in the hands of the owner tiller and his heirs; duly recognized farmer's | conveyed fre ze land speculation; and cooperative. Government, Sf 0 ita return to the regime of land ownership LBP, o¢ to other qualifies Title to the land is not | bene iries for a peri J transferable except by | of 10. Years. ‘Provitied eee Chee hereditary succession ‘or | howevargthat etmareyror age cin trou namestnd pate to the Government. in | spouse of the transferor TP Bettiontar sonatvscrr ona accordance with P.D. | shall have- al right’ fo | stock. poully and swine raising lands No, 27. repurchase » land from the government or LBP | Jurisdiction | The-DAR Js vested with primary jurisdiction to within 2. pend maf ears. ‘detemiine and adjudicate agrarian reform matters Under CARL and CARPER, the following are not covered: 1. Private lands with a total area of 5 hectares; 2. Lands actually; directly, and exclusively used for parks, wildlife, forest reserves, reforestation, fiSH™ sanctuaries and breeding grounds, watersheds and mangroves; Private lands actually, directly, and exclusively used for prawn farms and fish ponds; Lands actually, directly, and exclusively used ‘and found to be necessary for: . national defense; 'b. school sites and campuses; ©. experimental farm stations operated for educational purposes: d. seeds and seedling research and pilot production center; . church sites and convents appurtenant thereto; f mosque sites and Islamic centers appurtenant thereto; ‘g. communal burial grounds and cemeteries; h. penal colonies and penal farms actually ‘worked by the inmates; 1. research and quarantine centers; and and shall have exclusive original jurisdiction over all ‘matters, involving the implementation of agrarian reform, axcept: 1. Those falling under the exclusive jurisdiction of the DA and the DENR (R.A. No. 6657, Sec. 50); 2° Petitions for the determination’ of just ‘compensation to be paid to the landowners; and 3. Prosecution of all criminal ocfenses under R.A. No, 6857. ARTICLE 12: STATEMENT OF OBJECTIVES. (Pro?-Fac?-ReS!) 1. To Promote and maintain a state of full employment through improved manpower training, allocation and utilization; To Protect overy citizen desiring to work locally or overseas by securing for him the best possible terms and condition of employment; To Facilitate a free choice of available employment by persons seeking work in conformity with the national interest; To Facilitate and regulate the movement of ‘workers in conformity with the national interest; 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 9)LABOR STANDARDS SAN BEDA MEMORY AID 2018 5. To Regulate the employment of aliens, including the establishment of a registration and/or 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; and 7. To Insure’ careful selection of Filipino workers for overseas employment in order to protect the {good name of the Philippines abroad, (Article 13: Definitions. Please see Definitions under PRE-EMPLOYMENT for the discussion) ARTICLE 14: EMPLOYMENT PROMOTION To pursue its responsibilty to promote employment ‘opportunities, the DOLE carries out programs for local and overseas employment. Allocation of Manpower Resources is tothe: objectives and implement the provisions of this Title (LABOR CODE, as amended by P.D. No. 850, Art 36). ARTICLE 37: VISITORIAL POWER The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Tile, require it to submit reports regularly on prescribed forms, and to act on violations of any provisions of this Title (LABOR CODE, Art. 37). (Article 38: legal Recruitment. Please see illegal Recruitment under PRE-EMPLOYMENT for the Discussion) ONE: RECRUITMENT AND PLACEMENT ERS 4. Bureau of Local ibaa ae forfoéal') © EGHAPTER I: GENERAL PROVISIONS ‘employment; and Y, COLLEGE Be tet Soe ‘Administration (POEA) —~ ‘employment. Public Employment Service Office (PES towns of proviness, ces and ater siralegic ARTICLE 15: BUREAU OF EM ‘SERVICES BN ‘The Bureau of Employment Services was’ by virtue of €.0. No. 79 which took effect 1982." domestic “employment ‘Uncton® Wrox assumed by the BLE while its overseas functions wore assumed by the POEA (E.0. No. 797, Secs. 3- 4. (Article 16: Private Recruitment. Please see Private Recruitment under PRE-EMPLOYMENT for the discussion) REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES: ARTICLE 36: REGULATORY POWER The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the 10 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS, OF LAW 13: BEFINITIONS. {Js anj-member of the labor force, whether unemployed (LABOR CODE, Art yand Placement is any act of enlisting, transporting, ‘or promising for employment, locally or nether for profit or not; Provided, That any ‘or entity which, in any manner, offers or fornises for a fee employment to 2 or more persons ‘shall be deemed engaged in recruitment and placement (LABOR CODE, Art. 13(b)). Note: 1, Recrutment includes the act of referral (People v. Saley, G.R_ No. 121179, July 2, 1998) or the ‘act of passing along or forwarding of an applicant’ for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau" (Rodolfo v. People, GR No. 146964, August 10, 2006). 2. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates a presumption (People v. Panis, GR. ‘No, L-88674-77, July 11, 1990) (Article 14: Employment Promotion and Article 1: Bureau of Employment Services. Please see the discussion under LABOR STANDARDS)LABOR STANDARDS SAN BEDA MEMORY AID 2018 ARTICLE 16: PRIVATE RECRUITMENT No person or entity other than the following shail engage in the recruitment and placement of workers, locally and overseas: (P*-CoMONS) Pubiic employment offices; Private recruitment entities, Brivate employment agencies: BOEA; ‘Construction contractors if authorized to operate by the DOLE and the Construction Industry ‘Authority: 6 Members of the diplomatic corps (but hiring must also go through POEA); 7. Other persons ‘or entities as may be authorized by the DOLE Secretary; 8. Name hires; and 8. Shipping or manning agents or representatives (1 AZUCENA, supra at 51), (Article 17: POEA. Please see discussion on Philippine Overseas and Administration) Giscussion on Ban on Dect Hiring) (Article 19: CFO. Please see’ Commission on Filpinos Overseast Article (20: NSB. Please see discussion on National \Séamen Board: Article 21: Foreign Service Role and Participation. Please see discussion on \Fordign Service Role and Participation; - ‘Article! Mandatory Remittance. Please see dsc Mandatory Remittance of Foreiga' Exch Earnings) % iscugsion~orr (Antcte 23: Composition of the Board: soe 24: Board to Issue Rules and Collect Fees. were tporsodod by See 4 of 0.247) CHAPTER II: REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES. ARTICLE 25: PRIVATE SECTOR PARTICIPATION IN RECRUITMENT AND PLACEMENT ACTIVITIES Private sectors that can participate: (P*-SOC) 1. Private employment agencies; 2. Private recruitment entities; 3. Shipping or manning agencies; 4. Such Other persons as may be authorized by the Secretary of Labor and Employment; and Construction contractors with a duly issued authority to operate private recruitment entities (IRR of the LABOR CODE, Book |, Rule Vil, See. 1). Qualifications for Partic 1. Citizenship requirement a. Filipino citizens; or b. Corporations, partnerships or entities at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipina citizens (LABOR CODE, Art. 27). 2. Capitalization (LABOR CODE, Art. 28) a. Private employment employment ‘agency for local errr ia pei ee Pee asa arctic (RIA aig ch Series of 2014) Ueno na Based Overseas. aren eS eter eraser} piesa Creer Pecos PSM, Provided that those with existing licenses shall, within” 4 years from effectivity hereof, increase their capitalization or paid-up capital, as the case may be, to 'PS,000,000 at the rate of P750,000 every ear. 17 81 Anose ht otherwise disqualified by law or other / qovsftinient regulations to engage in the feefuiirrent and placement of workers for overseas employment (IRR of the LABOR CODE, Book I, Rule !!, Sec. 2). Disqualified from Recruitment and Placement of Workers 1. Overseas Employment Whether for Profit or Not: Under the 2016 POEA Rules and Regulation on the Recruitment & Employment of Land-based Overseas Workers, Rule I, Sec. 3: (TOC-POL) a. Travel agencies and sales agencies of airline companies; b. Gfficers or members of the board of any ‘corporation or members in a. partnership ‘engaged in the business of a travel agency; ©. Corporations and partnerships, when any of its officers, members of the board. or partners, is’ also an officer, member of the board or partner of a’ corporation or partnership engaged in the business of a travel agency (Interlocking officers); 4d. Individuals, partners, officers or directors of ‘an insurance company who make, propose 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | ILLABOR STANDARDS SAN BEDA MEMORY AID 2018 or provide-an insurance contract under the 4. Cooperatives whether registered or not compulsory insurance coverage for agency- Under the Cooperative Act ofthe Philippines hired Overseas Filipino Workers; (Sec. 510): ©. Sole proprietors, partners or officers and Law Enforcers and any official or employee members of the board with derogatory of the DOLE (Sec. 5(6)): records, such as, but not limited to the 1. Sole proprietors of duly licensed agencies following: are prohibited from securing another license i. Those convicted, or against whom to engage in recruitment and placement probable cause or prima facie finding of (Seo. 5(9): and guilt is determined by 9 competent 9. Sole proprietors, Partnerships or Authority, for illegal recruitment, or for Corporations licensed to engage in private other related crimes or offenses recruitment and placement for" local committed in the course of, related to, ‘employment are prohibited from engaging in or resulting from, illegal recruitment, of job contracting or subcontracting activities for crimes involving roral turpitude; (Sec. 5(9)) i. Those agencies whose licenses have been revoked for violation of RA 8042 _ Private Fee Charging Employment Agency (PEA) (Migrant Workers and Overseas —_is any person or entity engaged in the recruitment Filipinos Act of 1985), as amended, PD “and placement of workers. for a fee which is 1442 (Labor Code of the Philippines), as charged, directly or indirectly. from the workers oF amended, and RA 9208 (Trafficking Persons Act of 2003), as amer tha aermlamertigg, re witment Entity (PRE) is any person or regulations: a jd in the recruitment and li, Those agencies whose’ licenses iad! 5 Epldcoment of wohkers, locally or overseas, without been cancelled, or ane fakludntSE CohslehghGregliy or indecly, any foo fom the st to the Order of the Admini joyers (LABOR CODE, Art. 13(e)). included in the list of tpers6ns 5 derogatory record foc Sek er recruitment laws and regulations‘and Any_ffcial or empayes ff nol Dol employers or both (LABOR CODE, Art 13(c)). iployment Agency v. Private 7 Recruitment Entity Cry ad pert xi eneeniric rare jas, the right duly | It does not charge any in law to | fee either directly or Fate, directly | indirectly from the irectly, from the | workers or employers to rkers or the | which they would be deployed, 2. Local Employment eR ee Under Department Order No. 141-14, Sec. 5: Ie Is authorized. to | Itis allowed to recruit for (TAC-OD-RC-ES-SPC) recruit only for | both local and overseas a. Those who are convicted of illegal | overseas placement | deployment recruitment, Trafficking in_persons, Anti- | ordeployment child labor’ violation, or Crimes. involving moral turpitude (Sec. 5(2) government agencies directly iv implementation of RA 8042, as amende andjor any of his/her relatives within’the'4™ Civil degree of consanguinity or affinity (Res ‘No, 8042, Sec. 8). Eien His authorized to It sources its authority b. Those against whom probable cause or recruit. and place | from a document called prima facie finding of guilt for illegal workers trom” a | “authority.” | recruitment or other related cases exists ‘document particularly to Qwners or Directors of idenonineied| es agencies who have committed illegal tioonse." recruitment or other related cases (Sec. CHAN, Bar Reviewer on Labor Law (2077), p. 77 5(0)): Inereinafter CHAN Reviewer) c. Those whose licenses have been previously Revoked or cancelled by the Department License v. Authority under sec. 54 of these rules (Sec. 5 (c)); ‘A document issued by | A document issued by the DOLE authorizing | DOLE authorizing a | 12 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONSLABOR STANDARDS SAN BEDA MEMORY Alo 2018 @ person or entity 10 | person or association to operate a private | engage in recruitment employment agency | and placement activities (LABOR CODE, Art. | as a private recruitment 13(d)) entity (LABOR CODE, Art. 13() Validity of License 1. For Overseas Employment - The regular license shall be valid up to the full term of 4 years from the date of issuance of the Provisional license (2016 POEA Rules and Regulations Part'l, Rule I, Sec. 14); and 2. For Local Employment ~ 3 years from the date Of issuance unless sooner revoked or cancelled (0.0. No. 141-14, Sec. 12) Provisional License for Overseas Employment Within 5 working days from satisfaction of the post- qualification requirements, a provisional license which shall be valid within.a non-extendible period of 2 years from date of issuance shall be i the POEA (2016 POEA Rules and Regulat 1, Rule il, Sec. 11), LICENSE OR AUTHORITY No license shall be used, drecty @ any person other than the one in wt issUed, nor at any place other than th ligense, "nor. may. such conveyed or assigned to any other pal (2016 POEA Rules and. Reguat Overseas Employment, Rue I, Sc. 2 The ticense of the sole proprietorship automatically be revoked upon the death of proprietor. The nextin-rank officer of the "agency Shall, within 10. days, report such death tothe ‘Administration, Failure to report shall automatically include ‘such nextin-rank officer in the list. of persons with derogatory record (2016 POEA Rules 4nd Regulations Governing Overseas Employment, Rule Il, Sec. 22). ‘The license of a partnership shall be automatically revoked upon the death or withdrawal of a partner which materially interrupts the course of business or results in the actual dissolution of the partnership. The surviving partner/s shall, within 10 days, report such death or withdrawal to the Administration, Failure to report shall automatically include the surviving partner's in the list of persons with derogatory record (2016 POEA Rules and Regulations Governing Overseas Employment, Rule I, Sec. 23). ‘A licensed recruitment agency may conduct recruitment activities outside its registered address by securing a Special Recruitment Authority prior to the condust of the recruitment (2016 POEA Rules and Regulations Governing Overseas Employment, Rule Vil, Sec. 58). ARTICLE 30: REGISTRATION FEES The Secretary of Labor shall promulgate schedule of fees for the registration of all applicants for license or authority (LABOR CODE, Art. 30). ARTICLE 31: BONDS OR ESCROW DEPOSITS A licensed recruitment agency shall maintain at all times its escrow deposit in the minimum amount of 1,000,000. In case the licensed recruitment ‘agency is required an additional escrow pursuant to Sec. 15, it shall maintain the escrow deposit of P1,000,000 plus the additional escrow (2016 Rules and Regulation on the Recruitment & Employment of Land-based Overseas Workers, Rule Il Sec. 17). Purposes 4. To guarantee compliance with prescribed fecuiitment procedures, rules and regulations, terms and conditions of employment; and sure prompt and effective recourse ‘sompanies when held liable for worker's claim (Finman General pv. Inocencio, G.R. Nos. 90273- er 15, 1989). ‘ig intended to answer only for \enirelated claims and for violation of labor .Slaws:(Capri¢omn Intl. Travel v. CA, G.R. No. 91096, Apsl 3, 199): Gaén veysfies by applicants for license or authority 22 nck Sbjct to gamishment by aluagment creator ot ne-agency. The cash bond ie reserved fr the sompboytontidlated Gaime of overseas workors and for violations of labor laws ({d.). In case the escrow deposit has been garnished, the licensed recruitment agency shall replenish the escrow deposit within 15 days from receipt of the Notice to Replenish Escrow Deposit, Failure to comply with such notice will result in the suspension Of the license of the recruitment agency. Within the same 15-day period, the licensed recruitment agency may explain why it should not be suspended for such failure to comply (2016 Rules and Regulation on the Recruitment & Employment of Land-based Overseas Workers, Rule Il Sec. 17) The deposit in escrow of a licensed recruitment agency that voluntarily surrenders its license or has. not renewed its license shall be released upon ‘submission of the following: 1. Copy of the duly executedisigned escrow agreement; 2018 SAN BEDA CENTRALIZED BAR OPERATIONS |13LABOR STANDARDS SAN BEDA M MORY AID 2018 2. Bank certification on the status of escrow deposit; Certificate of No Pending Case from the NLRC; Clearance from the Adjudication Office; Notarized Board —_-Resolution/Partnership Resolution duly received by the SEC on the decision to withdraw escrow deposit, indicating the name of the person to process and receive. the check representing the escrow deposit; and 6. Surety bond equivalent to the amount of the escrow deposit valid for 4 years from expiration of the license, if applicable (2016 Rules and Regulation on the Recruitment & Employment of Land-based Overseas Workers, Rule il, Sec. 19) ARTICLE 32: FEES TO BE PAID BY WORKERS ‘Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until 1. He/she has” obtained employment through cffors: or > 2. has actually commenced employment. os Such fee shall be alwaje covered with appropriate receipts clearly showing the amount paid. 1 General Rule: A land-based agenicy may charge and collect from its hired workers the following! 1, Placement fee equivalent to 1-month salary exclusive of documentation costs; ° 2. Documentation costs such as the following: Passport; NBI/Police/Barangay Clearance; Authentication; Birth Certificate; Medicare; Trade Test, if necessary, Inoculation, when required by host country: and Medical Examination fees (1 AZUCENA. ‘supra at 84-85). Exception: Where the prevailing system in the country where the worker to be deployed either by law, policy or practice do not allow charging or collecting of placement and recruitment fees (Id. at 4) POEA has the power to: 1. Suspend or cancel license; and 2. Order the refund or reimbursement of such illegally collected fees (Eastem Assurance and Surety Corp. v. Secretary of Labor, G.R. 79436- 50, January 17, 1990). Prohibition on Charging Fees: 1. A placement fee may be charged against the Overseas Filipino Worker equivalent tot 14 | 2018 SAN BEDA CENTRALIZED BAR OPERATION month basic salary specified in the POEA approved contract, except for the following: a. Domestic workers; and b. Workers to be deployed to countries where the prevailing system, either by law, policy or practice do not allow, directly or indirectly, the charging and collection of recruitmentiplacement fee, (2016 POEA Rules and Regulations Governing Overseas Employment, Book tl, Rule V, Sac. 51); 2. No other charges in whatever amount, form, manner or purpose shall be charged against the Overseas Filipino Worker, except those specified in this Rule (2016 POEA Rules and Regulations Governing Overseas Employment, Book il, Rule V, Sec. 84); and 3. The worker shall pay the placement fee to the licensed recruitment agency only after signing the POEA-approved contract. The agency must issue a BIR-registered receipt stating the date of payment and the exact amount paid (2016 i ae ‘and Regulations" Governing F the! public interest requires, the Secretary ‘may direct all persons or entities within the ofthis Title to submit a report on the status of employment, including job vacancies, ‘detalls of job requisitions, separation from jobs, ‘wages, other’ terms and’ conditions, and other employment data, ‘(Atticle,34: Prohibited Practices, Please see discussion on Prohibited Practices) ARTICLE 35: _ SUSPENSION ANDIOR CANCELLATION OF LICENSE OR AUTHORITY Grounds for Automatic Revocation of License: 1. Expiration of the principal's/employer’s business license or cessation of business or recruitment activity, after a period of 1 year from expiration or cessation: 2. Upon written mutual agreerent by the principalemployer and the licensed recruitment agency to terminate the agreement; 3. When’ the principaliemployer is meted the penalty of disquaiifcation from participation in the overseas employment program: and 4. Failure to comply with the undertaking submitted as requirement for accreditation (2016 POEA Rules and Regulations Governing Overseas Employment Sec. 104). Grounds for Suspension/Cancellation of License 1. Unjustiied refusal to assist/repatriate distressed Overseas Filipino Worker/s;LABOR STANDARDS EDA MEMORY AID 2018 2. Deliberate violation/non-compliance of the Principavemployer with its contractual, Obligations to its hired Overseas Filipino Worker!s; 3. Continued processing and deployment of the Overseas Filipino Workers forthe principavemployer will lead to the further ‘exploitation of any or all of its applicants and Overseas Filipino Workers or pose imminent danger to the lives and safety of its Overseas Filipino Worker's; or 4, When found to have hired and employed an Overseas Filipino Worker who is either a minor or below the prescribed minimum lage requirement (2016 POEA Rules & Regulations Governing Overseas Employment, Sec. 101). Jurisdiction ‘The DOLE Secretary (LABOR CODE, Art. 35) and the POEA have concurrent jurisdiction to suspend or cancel a license (Trans Action Overseas Sec. of DOLE, G.R. No. 109583, Sept 1997) Sotidary Liability Assumed Ey Rechuitment Agency — ‘An applicant for a license to ofsléie { private employment agency or manning agerity is requitéd to submit an undertaking under oalti that It shall assume joint and solidary liability with the employer for claims and. liabilities which may arise” connection with the implementation of the contract and shall guarantee compliance with existing labor. 7 and, social legislations (2016 POEA Ruless&. Regulations Governing Overseas Employment, 1, Rute Il, Sec. 4(0). e Not “ 1. The liability of the employer and the rectuitmentiplacement agency for any and all claims under this section shall be joint and several 2. This provision shall be incorporated in the contract for overseas employment and shall be ‘a Condition precedent for its approval. 3. Ifthe recruitment/placement agency is a juridical being, the corporate officers, and directors, and partners, as the case may be, shall themselves be. jointly and solidarily ‘liable with the corporation or partnership for the aforesaid claims and damages. 4, Such liabilities shall continue during the entire period or duration of the employment contract, and shall not be affected by any substitution, ‘amendment or modification made locally or in a foreign country of the said contract (DUKA, supra at 33) Suability of Foreign Corporations ‘A foreign corporation that, through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine courts (Facilities Management Corp. v. De La Rosa, GR. No. L- 38649, March 26, 1979) Provisional License Within 5 working days from satisfaction of the post- qualification requirements, the Administration shall issue a provisional license which shall be valid within a non-extendible period of 2 years from date of issuance (2016 POEA Rules & Regulations Governing Overseas Employment, Sec. 11) Upon: application. a provisional license may be upgraded to a regular license at any time during its validity upon deployment of 100 workers to its new principals (2016 POEA Rules & Regulations Governing Overseas Employment, Sec. 13). f a Regular License 9F icense shall be valid up to the full term s fromthe date of issuance of the lication for upgrading of the provisional hall be filed within 3 months before the ‘ofthe provisional license (2016 POEA ‘Regulations Governing Overseas ent Sec. 14) jal of License eprséa) recrutment agency should submit an eae for the renewal of its license within 3 fore the expiration of its license (2016 POEA Rules & Regulations Governing Overseas ‘ _Estoymont, Sec. 18) ‘ARTICLE 18: BAN ON DIRECT HIRING Direct Hires — workers directly hired by the ‘employers for overseas employment. General Rule: Direct hiring of Filipino workers for overseas employment is not allowed. Exceptions: Direct hiring by members of the: (ION) 1. Diplomatic corps: 2. International organizations, 3. Qther employers as may be allowed by DOLE: and 4, Name hires — individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency. Their hiring, nonetheless, shall pass through POEA for processing process (POEA Rules Governing Overseas Employment as amended in 2002, Rule Ill, Part Il!) 2018 SAN BEDA CENTRALIZED BAR OPERATIONS 115LABOR STANDARDS SAN BEDA MEMORY Alp 2018 Reasons of the Prohibition: 1. To assure the best possible conditions of work to the employee; 2. To assure the foreign employer that he hires only qualified Filipino workers; 3. To insure compliance with the Labor Code provisions on the solidary liability of private ‘employment and recruitment agencies with their foreign principal (1 POQUIZ, supra at 80-81); and 4. The ban is a form of protection for the Filipino workers, so that they will not fall prey to unscrupulous and abusive foreign employers who might victimize them inthe absence of government regulation (DUKA, supra at 42). terms and Overseas Filipino Worker refers to a person who is to be engaged, is engagad or has been engaged in a remunerated activiy in-a state of which he or she js not a citizen or on board a vessel navigating the foreign seas, other than a government ship used for miltary or non-commercial purposes, ot. installation located offshore or'on the high, Be used interchangeabiy with myant workOr{RA, No. 8042, as amended by R.A. No. 40022, Sec: 2)." Note: A person to be engaged in ® remumerated” activity refers to an applicant worker who fas been promised or assured of employment overseas and ‘acting on such promise or assurance sustains damage andlor" injury (Omnibus Riles | & Regulations Implementing RA. Noi 8042 as amended by R.A, No, 10022, Rule Ii, Séc. 1) od Classification of OFWs: 1. Sea-Based or Seamen ~ those employed f vessel engaged in maritime navigation. 2, Land-Based — contract workers other than) a seaman including workers engaged in offshore activities whose occupation requires that majority of his working or gainful hours are spent on land (1 AZUCENA, supra at 57) Emigrant is any person, worker or otherwise, who femigrates to a foreign’ country by virtue of an immigrant visa or resident permit or its equivalent in the ‘country of destination (LABOR CODE, Art 1300) Note: Emigrant is now referred to as “legal resident” He is a person who has obtained permanent residency status in accordance with the law of the host country (Omnibus Rules & Regulations Implementing RA. No. 8042, as ‘amended by RA. No. 10022, Rule I, Sec. 2(0)) Deployment of Migrant Workers The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The following 16 | 2016 SAN BEDA CENTRALIZED BAR OPERATIONS, "The -yjpatorementioned are recognized as a guarantee on the part of the receiving country for the protection of overseas Filipino workers: (CALM) 1. Itis a signatory to andlor ratifier of multilateral Conventions, declarations or resolutions relating to the protection of migrant workers; 2. It has concluded a. bilateral Agreement or arrangement with the government protecting the rights of overseas Filipino workers; or 3. Ithas existing labor and social Laws protecting the rights of migrant workers. The ‘receiving country should take positive, concrete Measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b), and (©) hereof (RA. No. 8042 as amended by R.A. No. 10022, Sec. 4). In the absence of a clear showing that any of the aforementioned guarantees exists in the country of destination of the migrant workers, no permit for t shall be issued by the POEA. embers of the POEA governing board who ctUdily voted’ in’ favor of an order allowing the deployrriént of Migrant workers without any of the Guarantees shall suffer the ‘of removal or dismissal from service with tion to hold any appointive public office years (R.A. No. 8042 as amended by R.A. No. Sec. 4). ‘Deployment The State: shall also allow the deployment of iQvefbens fino Workers to Vessels. navigating the foreign seas or to installations located offshore or on high seas whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers; and 2. Companies and contractors with international ‘operations: provided, That they are compliant with standards, conditions and requirements, as embodied in’ the employment contracts prescribed by the POEA and in accordance with intemationally-accepted standards (RA, No. 8042 as amended by R.A. No. 10022, Sec. 4) ‘Termination or Ban on Deployment {In pursuit of the national interest or when public welfare so requires, the POEA Governing Board, after consultation with the Department of Foreign Affairs, may, at any time, terminate or impose a ban fon the deployment of migrant workers (RA. No. 8042, Sec. 5, as amended by R.A. No. 10022). (Article 19: CFO, Please see discussion on ‘Commission on Filipinos Overseas) (Article 36: Regulatory Powers and Article 37: Visitorial Power. Please see REGULATION OFLABOR STANDARDS SAN BEDA MEMORY AID 2018 RECRUITMENT AND PLACEMENT ACTIVITIES for the discussion) ARTICLE 38: ILLEGAL RECRUITMENT 1. Any act of (CETCHUP) canvassing, enlisting, transporting, contracting, hiring, utiizing, or procuring workers and includes (CRAP) contract services, referring, advertising, or Promising for employment abroad, whether for profit or not, when undertaken by a non-icensee. or non-holder of authority contemplated in Art. 13(1) of the Labor Code (R.A. No. 8042 as amended by RA. No. 10022, Sec. 6; LABOR CODE, Art. 13(6)). 2 The acts enumerated under Art. 24 ofthe Labor ‘ode. Note: The expanded definition of ilegal recruitment Under R.A. No. 8042, a8 amended by RA. No. 10022, embodies Art. 34 of the Labor Code. Hence, the comments under Art. 34 equally apply here (1 AZUCENA, supra at 97) ‘ce oR . as Presumption of legal Recruitment for Ni Any nomlicensee or nomnolder of euthorty, wai any ‘manner offers or promises. fora. es ‘employment abroad to 2 or more personsyshaltber deemed 80 engaged in ilegal recruitment (R.A. No, 8042 as amended by R.A. No. 10022, Sec. 6)! (Article 39: Penalties. Please see discussion’ on Penalties) — eee. ARTICLE 34: PROHIBITED PRACTICES ‘The following acts are prohibited under Art’ 34 Of the Labor Code and considered as illegal recruitrient under Section 6 of R.A. No. 8042, as amended by RA. No. 10022, making it unlawful. for. any individual, entity or holder of authority: (IF-FOUND= WITH-AFP) To charge greater amount than that specified in the schedule of allowable fees (tllegal exaction); 2. To fumish any false information in relation to recruitment or employment (Ealse information); 3. To give any false notice, testimony etc. or ‘commit any act of misrepresentation to secure a license or authority (False statements); 4, To obstruct or attempt to obstruct inspection by the Labor Secretary or his authorized representatives (Obstruct inspection); 5. Failure to deploy a contracted worker without a valid reason as determined by the DOLE (Unjustified non-deployment); 6. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault (Non- reimbursement upon failure to deploy); PAX 7. To allow a non-Filipino citizen to head or manage a licensed recruitmentimanning agency (Delegation to an alien): 8. To withhold travel documents from applicant workers before departure for unauthorized monetary considerations (Withholding travel documents); : 9. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency Unfluencing not to employ); 10. To become an officer or member of the Board of any corporation engaged in the management of a travel agency (Travel agency officers recruiting): 11..To engage in the recruitment or placement of Jobs harmful to public health, morality or to the dignity of the Philippines (Harmful jobs); 12, To substitute or alter employment contracts ‘without the approval of the Secretary of Labor (Alteration of contracts); HThe law empowers POEA to approve and ‘verify a contrat under Art. 34(i) to insure that ine employe" shall not be placed in ‘cigalfvantagéous positions and that the contract ER rinerum, sindarce of such Mployment contract set. by the POEA “Hawevery where a supplementary contract was “efilered Info affording greater benefits to the © employee than the previous one and although ““the’ sartie’was not submitted for approval of POEA,¥the same is valid and enforceable (Seagifl Maritime Corp. v. Balatongan, G.R. No. 82252; Febuary 28, 1989) 43. To fail to file reports on the status of employment, placement etc. and such other ‘matters as may be required by the Secretary of Labor (Failure to comply with rules and regulations); and 414. To induce or attempt to induce a worker to quit his job in lieu of another offer unless it is designed to liberate the worker from oppressive terms of employment (Prrating). Note: Nos. 5, 6, and 7 are not found in Art. 34 but only in Sec. 6 of R.A. No. 8042 as amended by RA. No. 10022. Other Prohibited Acts: (8-HR-PAST) 1. Granting a loan to an Overseas Filipino Worker with interest exceeding 8% per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor ‘or accommodation party, postdated checks in relation to the said loan; 2. imposing a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo Health 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 17LABOR STANDARDS SAN BEDA MEMORY AID 2018 examinations only from specifically designated ‘medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; 3. Refusing to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract. has been prematurely terminated through no fault of his or her own; 4. For a recruitmentimanning agency or a foreign principavemployer to Pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's Insurance coverage; 5. Imposing a compulsory and _ exclusive Arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; 6. For a Suspended recrutmeft/manni to engage in any kind of fecruitmer including the processing of applications; and 7. Imposing ‘a compulsory arrangement whereby an ove worker is required to undergo Tr instruction oF schooling of any J Persons, except for recommend: ‘mandated by principalsishipo latter shoulder the cost of such No. 8042, Soc. 6 as amended 10022). Note: The acts considered as illegal recruft different from the 7 prohibited activities added Wrens Sec. 6 of RA. No. 8042 as amended by R.A. No: 10022. ‘The:persons criminally liable for the above offenses are the principals, accomplices and accessories. In ‘case of juridical persons, the officers having ‘ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable, In the filing of cases for illegal recrutment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized ‘representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives oF personnel from the DOLE, POEA and other law ‘enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused 18 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS In the prosecution of offenses punishable under this section, the public prosecutors of the DOJ shall collaborate with the ant-ilegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution (R.A. No. 8042 as amended by R.A. No. 10022, Sec. 6). ‘Two Kinds of Illegal Recruiter 1, Nondlicensee (NL) or Non-holder of authority (NH) — the offender performs a. Any of the acts defined in Art. 13(b) of the Labor Code as recruitment and placement; b, Illegal recruitment as defined in Par. 1, Sec. Gof RA. No. 8042, as amended by R.A. No. 10022; or c. Any of the 14 acts enumerated in Sec. 6 of RA. No. 8042, as amended by RA. No. 10022 2. Licensed recruiter or Holder of authority — the offender commits any of the 14 wrongful acts enumerated in Sec. 6 of R.A. No. 8042 as ded by RA. No. 10022 (Sto. Tomas v. GIR. No, 152642, November 13, 2012), oe one tea trutment Recruitment — illegal tment committed by any person who is er a licensee nor a holder of authority: Sabotage/Qualified Illegal egal Recruitment — tlegat reciuitment by 1 person or with another peigon against 3 or more persons idually or as a group: _ ipa Recruitment by 2 Syndicate Moga itment committed by a syndicate or a foUp of 3 or more persons conspiring and 2Zeonederatig with one another in caring out the act circumscribed by the law commits the fourth type of illegal recruitment by the law (People v. Sadiosa, G.R. No. 107084, May 15, 1998). Elements of Simple illegal Recruitment 1. The offender has no valid license or authority required by law to lawfully engage in recruitment and placement of workers; and 2. The offender undertakes any activity within the meaning of “recruitment and placement” defined under Art, 13(b) or any prohibited practice enumerated in Arts, 34 and 38 of the Labor Code or RA. No, 8042 as amended by R.A. No. 10022, whenever applicable. Elements of Large-Scale Illegal Recruitment 1. The offender undertakes any activity within the ‘meaning of “recruitment and placement" defined under Art, 13(b) or any prohibited practice ‘enumerated in Arts. 34 and 38 of the LaborLABOR STANDARDS SAN BEDA MEMORY ALD 2 Code or R.A. No. 8042 as amended by R.A. No. 10022, whenever applicable; and 2. That the offender commits the same against 3 or more persons, individually or as a group. Elements of Illegal Recruitment by Syndicate 4. The offenders undertake any activity within the meaning of "recruitment and placement" defined under Art. 13(b) or any prohibited practice enumerated in Arts. 34 and 38 of the Labor Code or R.A. No. 8042 as amended by R.A. No. 10022, whenever applicable; 2. The acts are committed by at least 3 persons conspiring, and/or confederating with one another; and 3. The offenders are not licensed or authorized to do so. Note: Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; Note: illegal recruitment in large scale add rectuitment by a syndicate are separate or independent categories. They need not coincide” within the same case. Where only one complainant filed individual complaints, there: tis no~ilegal~ recruitment in large scale; but the! 3. conspiring recruiters can be held guilty of illegal recruitment by a syndicate (People v. Hernandez, .G.R. Nos. 4141221-36, March 7, 2002). legal Recruitment | Involving Economic Sabotage 1. Both, illegal recruitment in large scale and illegal recruitment by syndicate are malum prohibitumn, 2. The number of victims is determinative of the crime for large-scale illegal recruitment, Failure to prove that at least 3 persons recruited makes the crime a case of simple illegal recruitment. There is no illegal recruitment in large scale based on several information filed by only one complainant | 3, The number of offenders is determinative of the crime of illegal recruitment by syndicate. Consequences of Conviction: (RFC) ‘Automatic Revocation of the license or authority (LABOR CODE, Art, 39(¢)): 2. Forfeiture of the cash and surety bonds (LABOR GODE, Art, 39(0)); and 3. Gonvietion for the crime of estafa, if found guilty thereof (People v. Calonzo, G.R. Nos. 115150: 55, September 27, 1996). Ttis malum prohibitum. The criminal intent of the accused is not | imperative. necessary. itis penalized under the | itis penalized under the Labor Code. Revised Penal Code, Itis limited in scope. | It is wider in scope and covers deceits whether related of not related to recruitment activities. | (CHAN, The Labor Code of Philippines Annotated Vol. |, 2009, p. 258) hereinafter, 1 CHAN, The Labor Code]. Note: Conviction under the Labor Code for illegal recruitment does not preclude punishment under the Revised Penal Code for the crime of estafa (People v. Femandez, G.R. No. 199211, June 4, 2014), in other words, a person may be charged and convicted for both illegal recruitment and estafa ‘Act Constituting Estafa The accused represented themselves _ to complainants to have the capacity to send workers oad although they did not have any authority or icenge. Its by this representation that they induced complainants to'pay a placement fee. Such act coristitutes, estafa. under Art. 315(2) of the RPC -{Poople v' Hemendez, G.R. No. 199211, Juno 4, 20a d ‘Note: The offended party must have relied on the false pretense, fraudulent act or fraudulent means of the accused, and as a result thereof, the offended Party suffered damages (1 AZUCENA, supra at 99). Venue of Criminal Action Arising from itlegal Recruitment ‘The complainant may, at his option, file at the RTC Of ha province or cy Where the offense was committed: or 2. Where he offended party resides atthe time of the commission of the offense (R.A, No. 8042, See. 9). Note: In the fing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office (R.A, No, 10022, Sec. 5). When maximum penalty is imposed: 1. If the person illegally recruited is loss than 18 years of age; or 2. If committed by a non-licensee or non-holder of authority (R.A. No. 8042, Sec. 7). 2018 SAN BEDA CENTRALIZED BAR OPERATIONS [19LABOR STANDARDS SAN BEDA MEM@RY AID 2018 Absence of Receipts Evidencing Payment, Not Fatal to Prosecution’s 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, he may be convicted of the offense despite the absence of receipts (People v. Sagaydo, GR. Nos. 124671-75, September 29, 2000). Liability of Recruitment Agency ‘The recruitment agency is solidarily lable with the foreign principal for unpaid salaries of a worker it recruited (IRR of the Labor Code, Book |, Rule V, Sec. 17) Note: The obligations covenanted in the recruitment agreement between the local agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted under the agreement do not at'all end, but employment contracts of the emy ‘and employed pursuant to the agreement. Otherwise, this will rent t very purpose for which the law sever ling Ithe Smployment of workers for foreign Tots abipae Was enacted (ATC! Overseas Comp. v. Et 178551, October 11, 2010). recruitment agency to send them foreign employer despite their kn inabilty to pay their wages, the Court abs agency from liabilty (Feagie Construction { Dorado, G.R. No. 86042, April 30, 1991), Liability of Employee of Company Engaged in legal Recruitment ‘An employee of a company or corporation engaged in illegal recruitment may be held as principal, together with his employer, if it is shown that he actively and consciously ‘participated in_ illegal recruitment (People v. Valenciano, G.R. No. 180926, December 10, 2008). Issuance of Search Warrant or Warrant of Arrest Under the Constitution, only a judge may issue search and arrest warrants (CONST. Article Il, Sec. 2). The exception is in cases of deportation of illegal and undesirable aliens whom the President or the Commissioner of Immigration may order arrested, following a final order of deportation (Salazar v. Achacoso, G.R. No. 81510, March 14, 1990). 12018 SAN BEDA CENTRALIZED BAR OPERATIONS OF be Miien in, GR. NO: ‘Art 38(c) of the Labor Code is unconstitutional inasmuch as it gives the Secretary of Labor the ower to issue search or arrest warrants. The latter not being a judge, the authorities must go through the judicial process (Id. Note: The ruling in Salazar v. Achacoso does not necessarily mean that the Secretary of Labor or his duly authorized representatives, of any officer of the law, for that matter, cannot cause the arrest of illegal feoruiters. (ABALAYAN, The Law on illegal Recruitment in Perspective, in —_Anti-llegal Recruitment Handbook (1989), p. 21) [hereinafter, ABALAYAN). in a nutshell, the Secretary of Labor or his duly authorized representatives may cause the lawful arrest of illegal recruiters or searches and seizures either: 1. By virtue of a warrant of arrest or search warrant issued by a judge; or i warrant of arrest under the provisions of 5, Rule 113 of the 1985 Rules on fal Progedire, or without search warrant EDAvnen the aegtch is incidental to a lawful arrest, ‘thing is in plain view, or when the jdual foncemed knowingly consents to be ned JABALAYAN, supra at 22), Fhe Shcietary of Labor may order closure of scrbifnent establishments because it is only ‘nd regulatory in nature (ABALAVAN, ‘Suspension and/or Cancellation of Authority. Please see discussion on ‘and/or Cancellation of License or (Article 36: Regulatory Powers and Article 37: Visitorial Power. Please see REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES for the discussion) (Article 38: Illegal Recruitment. Please see discussion on illegal Recruitment) ARTICLE 39: PENALTIES Sec. 7 of RA. No. 8042, as amended by RA. No. {0022 provides forthe penalties ‘Any person found guilty of illegal recruitment shal suffer the penalty of imprisonment of not less than 12 years and 1 day but not more than 20 years and a fine of not less than P1,000,000.00 nor more than P2,000,000.00. 2. The penalty of life imprisonment and a fine of not less than P2,000,000.00 nor more than P5,000,000.00 shall be imposed if illegalLABOR STANDARDS SAN BEDA MEMORY AID 2018 recruitment constitutes economic sabotage as defined therein, Provided, however, that the maximum penalty shail be imposed if the person illegally recruited is less than 18 years of age or committed by a nor-licensee or non-holder of authority 3. Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than 6 years and 1 day but not more than 12 years and a fine of not less than 500,000.00 nor more than P1,000,000.00. Imprisonment. al 12 years and 1 | P1,000,000.00 ROE day to 20| to trod years '2,000,000.00 Ces sabotage) en) Life *F2,000,000.00_| ReCTUe Imprisonment | to rei 5,000, een) = PEMMMISM 6 years and 1 | #500,000.00%0""} rer day to 12 | P4,006,d00.d0~ “ — Eee Yi + Summary of Rules on Prescriptive Periad and Penalty (RA. No. 10022, Seé.6) | STs eerie [Syears 20 years Een iit Sy If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings. In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitmentimanning agency, lending institutions, training school or medical clinic (R.A. No. 8042, as amended by R.A, No, 10022, Sec. 7). Prohibition on Officials and Employees It shall be unlawful for any official or employee of the DOLE, the POEA, or the OWWA, or the DFA, or other" government agencies involved inthe implementation of this Act, or their relatives within the 4th civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant workers (R.A. No. 8042, Sec. 8) Prescription ‘The prescriptive period of illegal recruitment cases is 5 years except illegal recruitment involving economic sabotage which prescribes in 20 years (RA. No. 8042, Sec. 12). Country-Team Approach provides that all officers, representatives and personnel of the Philippine government posted abroad regardless of their mother agencies shall, on a per country basis, act 8 one country-team with a mission under’ the leadership of the ambassador. The ambassador may recommend to the Secretary of DFA the recall of officers, representatives and personnel of the Philippine “government posted abroad for acts inimical to the national interest such as, but not limited to, failure to provide the necessary services to protect the rights of overseas Filipinos (R.A. No. 8042, Sec. 28). Repatriation Rule: Repatriation of the worker and the his personal belongings shall be the Berstpreeponstaiy of the agency, which racuted Setdeployed eyorker oversoas. The repatriation of id transport of the personal belongings of worker and all costs attendant thereto Srge’ by the principal andior the local ination of employment is due solely to tng fauif of te worker, the principal employer or agencyesnal ‘not in any manner be responsible 1 thé-repatriation of the former andior his / belongings; and InYeases' of war, epidemic, disaster or Jeatamities, natural or man-made, and other “Similar events, and where the principal or recruitment agency cannot be identified, the Overseas Workers Welfare Administration (OWWA), in coordination ‘with appropriate international agencies, shall take charge of the repatriation (R.A. No. 8042, Sec. 15) Mandatory Repatriation of Underage Migrant Workers Upon discovery or being informed of the presence of migrant workers whose ages fall below the minimum age requirement for overseas deployment, the responsible officers in the foreign service ‘shall without delay repatriate said workers and advise the Department of Foreign Affairs through the fastest means of communication available of such discovery and other relevant information, The license of a recruitmentmanning agency which recruited or deployed an underage migrant worker shall be automatically revoked and shall be imposed 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 21LABOR STANDARDS SAN GEDA MEMORY AID 2018 a fine of not less than 500,000.00 but not more physician, evacuation under appropriate medical than P 000,000.00. Supervision by the mode of transport necessary shall be undertaken by the insurance provider All fees pertinent to the processing of papers or and Gocuments inthe recruitment or deployment shalle 8, Medical repatriation - When medically refunded in ful by. the responsible necessary ‘a= determined by the attending Tecrutmentimanning agency, without need of rotce, physician, repatriation under - medical to the underage migrant worker orto his parents of Supervision to the migrant worker's residence guardian. The refund shall be independent of and In Shall be undertaken by the insurance provider at ddtion tothe indemnification for the damages Such time that the migrant worker is medically Sustained by the underage migrant. worker. The eared for travel by commercial carr I the Tefund shall be paid within 30 days from the date of eriod to recelve medical clearance 10 travel the mandatory repataton as provided for inthis Act exceeds 14 days from the date of discharge (RA No. 8042, a5 amended by RA. No. 10022, from the hospital, an’ alternative appropriate Soc. 16) mode of transportation, such as air ambulance, may be ‘arranged. Medical and. non-medical National. Reintegration Center for Overseas tescorts may be provided when necessary (RA Filipine Workers (NRCO) No. 8042, a5 amended by RA, No. 10022, Soc ANRCO is hereby created in the DOLE for returning S7-A), Filipinomigrant workers which shall provide a ‘mechanism for their reintegration into the Philippine sociely, serve as a promotion house for employment, and tap their skis-and pol national development (R.A. No. 8042, as by R.A. No, 10022, Sec. 17). 47: PHILIPPINE OVERSEAS AND JENT ADMINISTRATION (POEA) has’ faken over the functions of the 3s. Emplajment Development Board (OEDB) : 2OLI LIEGE Caind.natiénal Spamen Board (NSB) (E.O. No. 797, Compulsory insurance Coverage\ for Ageney-— Hired Workers Each migrant. worker deployed a Fuctions: (FPD) recruitmentimanning agency shall be covet fhulation, Implementation, and monitoring of compulsory insurance policy which shall be & “| Guerseas employment of Fipino workers: at no cost to the said worker. I shal bé eel 2 Biotection of their rights {0 fair and equitable the duration of the migrant workers fem temiploymient practices: and and shall cover, at the minimum: ‘a 3. Deployment of Filipino workers through 4" Accidental ‘death survivors benefit S65" goveryment-to-government hiring the migrant worker's beneficiaries; “4 ie 2, Permanent total disability benefit payable’to the’ _.-Regulatory Functions migrant worker; The POEA shall: (DFRF) 3. Repatriation cost of the worker when his™-cet.~ In the recruitment and placement of workers to employment is terminated without any valid service the requirements for trained and cause, including the transport of his personal competent Filipino. workers of foreign belongings. In case of death, ‘repatriation cost governments and their instrumentalities, and for the return of his remains; such other employers as public interest may 4. Subsistence allowance benefit; require, Deploy only to countries: (BIG) 5. Money claims arising from employer's liability ‘a. Where the Philippines has concluded 6 Compassionate Visit - When a migrant worker Bilateral labor agreements or arrangements; is hospitalized and has been confined for at b. Observing and/or complying with the least 7 consecutive days, he shall be entitled to International laws and standards for migrant a compassionate visit by 1 family member or a workers; and requested individual. The insurance company ©. Guaranteeing to protect the rights of Filipino shall pay for the transportation cost of the family, migrant workers. member or requested individual to the major ——-2._ Inform migrant workers not only of their rights as airport closest to the place of hospitalization of workers but also of their rights as human the worker. It is, however, the responsibilty of beings; the family member or requested individual to 3. Instruct and guide the workers how to assert meet all visa and travel document requirements; their rights and provide the available mechanism 7. Medical evacuation - When an adequate to redress violation of their rights; medical facility is not available proximate to the 4._- Regulate private sector participation in the migrant worker, as determined by the insurance recruitment and overseas placement of workers, company's physician andjor a consulting through its licensing and registration system; 22 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONSLABOR STANDARDS SAN BEDA MEM@RY AID 2018 and 5. 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 (R.A. No, 8042, as amended by R.A. No. 9422). Adjudicatory Functions (Jurisdiction Retained with POEA) 4. Administrative cases involving violations of licensing rules and regulations and registration, of recruitment and employment agencies or entities; and 2. Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino’ migrant workers (IRR of RA. No, 8042, Rule X, Sec. 6). Note: Jurisdiction over claims arising out of an ‘employer-employee relationship or by vit law or contract involving Filipino workers overseas deployment including ‘aims fof” at ‘moral, exemplary and other forms'of damages’ been transferred to the Labor “ae ofthe! NERS (RA. No. 8042, Sec. 10). Venue in OFW Cases . x Money claims or claims for damages shauld be fl before the Regional Arbivaon Branch of th NLA ‘where the complainant resides, or +) i 2. where. the principal oftee of jest employer Is situated, atthe option complainant (2077 NLRC Rules FiPro Rute IV, Sec. 1, par. (6). My ‘The Rules of Procedure on venue was “nefely Disciplinary Action Cases It should be filed with the Adjudication Office or Regional Office of the POEA, as the case may be. ‘The POEA may motu propio undertake disciplinary action against a worker. It shall establish a system of watching and blacklisting (POEA Rules, Book VII, Rule Vil) Grounds for Disciplinary Action: (PUG is WEC's GIFT to DAD) 1. Prostitution; 2. Unjust refusal to depart for the worksite; 3. Gunrunning or possession of deadly weapons; 4. Vandalism or destroying company property; 5. Violation of the laws and sacred practices of the host country and unjustified breach of ‘employment contract by a worker; Embezzlement of funds of the company or fellow worker entrusted for delivery to relatives in the Philippines; 7. Greating trouble at the worksite or in the vessel: of the host country prohibit Factions; ~of a Felony punishable by In OF possession or trafficking of drugs; and stign.6r abandonment (R.A. No. 8042) af 2\pry of Labor shall have the exclusive and jsdiction to act on appeals or petition for (/disciplinary action cases decided by the permissive, allowing a different venue when the-sexeCompromise Agreement interest of substantial justice demands a different one (Dayag v. Canizares, G.R. Ne. 124193, March 6, 1998) In the case of IPAMS v. De Vera and Arriola, G.R. No. 205703, March 07, 2016, the Court ruled that a foreign law may govern overseas employment contract when the following requisites are present (SIN-Pro): 1. That it is expressly Stipulated in the overseas: employment contract that a specific FOREIGN law shall govern; 2. That the foreign law Invoked must be proven before the courts pursuant to the Philippine rules. on evidence; 3. That the foreign taw stipulated in the overseas employment contract must Not be contrary to Faw, morals, good customs, public order, or public policy of the Philippines; and 4. That the overseas employment contract must be Processed through the POEA. ‘Sec. 10 of RA. No. 8042 allows resolution by compromise of cases filed with the NLRC. Any compromise/amicable settlement or voluntary ‘agreement on money claims inclusive of damages under this section shall be paid within 30 days from approval of the settlement by the appropriate authority Rule on Premature Termination of Contract: 4. If terminated on grounds other than those that are lawful and valid before the agreed termination date, the employer will pay the workers their salaries corresponding to the unexpired portion of the employment contract (Vinta Maritime Co., Inc. v. NLRC, G.R. No. 113911, January 23, 1998). I the date of employment termination occurred fon or after July 15, 1995, the law to apply is RA, 8042. Under Section 10, a worker dismissed from overseas employment without just, valid or authorized cause or there are any 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 23LABOR STANDARDS SAN BEDA MEMORY AID 2018 unauthorized deductions from his salary, he is entitled to full reimbursement of his placement fee with interest at 12% per annum plus salaries for the unexpired portion of his contract. Jurisprudence on the Unconstitutionality of Sec. 10 of R.A. No. 8042 v. Sec. 7 of R.A. No. 10022 The clause “or for three months for every year of the unexpired term, whichever is less” in Sec. 10(5) of R.A. No. 8042 was declared unconstitutional by the SC for violating Sec. 1, Art. I, Sec. 18,.Art. I and Sec. 3, Art. XIll of the Constitution, which accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights. and welfare (Serrano v. Gallant Maritime Services Inc., G.R. No, 167614, March 24, 2009). ‘The said provision of R.A, No. 8042 which was previously declared to be unconstitutional was reenacted in Sec. 7 of R.A. 10022, which took effect on May 9, 2010, However, the Supreme Court in Sameer Q, Placement Agency inc. v. Cabiles, G.R. NoWAZ0109, 3 rat the August 5, 2014 said that “We aro aware clause ‘or for 3 months for ovary. year of the unexpired term, whichever is less" was, reinkttéd' in Sec. 7 of RA. No. 10022. Thus, when a faw-or-a provision of law is null because it is inéonsigtent with the Constitution, the nullity cannot ibe cured by reincorporation or reenactment of the ame or similar law or provision. A law or pfdvigion of law that was already declared unconstitutional remains 8s such unless the circumstances have so changed — ‘as to warrant a reverse conclusion, We ate not Convinced by the pleadings submitted bythe parties that the situation has changed so as to cause us to reverse binding precedent. We reiterate: our finding in Serrano v. Gallant Maritime that limiting wages that should be recovered by an illegally dismissed overseas worker to three months is both a violation of due process and the equal protection clause of the Constitution.” Due Process Required to Terminate Employment Procedural due process requires that a seaman must be given: 1. Written notice of the charges against him. ‘The employer is bound to furnish him 2 notices: a. The written charge; and b. The written notice of dismissal in case that is the penalty imposed. 2. Formal investigation where he can defend himself personally or through a representative before he can be dismissed and disembarked from the vessel (Dela Cruz v. Maersk Filipinas Crewing, Inc., G.R. No. 172038, April 14, 2008) 2412018 N BEDA CENTRALIZED BAR OPERATIONS Minimum Employment Conditions of Overseas Employment: (GF?- JO) 1, Guaranteed wages for regular work hours and overtime pay, as appropriate, which shall not be lower than the prescribed minimum wage in the host country, not lower than the appropriate minimum wage standard set forth in a bilateral agreement or intemational convention duly ratified by the host country and the Philippines for not lower than the minimum wage in the Philippines, whichever is highest; 2. Eee transportation to and from the worksite, or offsetting benefit; 3. Eree food and accommodation, or offsetting benefit; 4, dust/authorized causes for termination of the Contract or of the services of the workers taking into “consideration the customs, traditions, norms, mores, practices, company policies and the labor laws and social legislations of the host country; Administration may also consider the é 19 88 basis for Other provisions of the ¢ (PEAR) 24a. Prevailing condition/realities in the market; ‘vA Existing’ labor and social laws of the host unt: evant bilateral and —_muttilateral ginents or arrangements with the host Re agreements, © conventions, delegations or resolutions (2016 POEA / Rules” and Regulations Governing the Regruitment and Employment of Land- bgsed Overseas Workers, Part V, Rule |, (Sec: 135), Invalid Agreements: 4. Signing satisfaction receipts is not a waiver. Any ‘agreement to receive less compensation than what the worker is entitled to recover is invalid (MRR Yard Crew Union v. PNR, G.R. No. L- 33621, July 26, 1976). 2. An agreement that diminishes the employee's pay and benefits as contained in a POEA. approved contract is void, unless such subsequent agreement is approved by POEA (Chavez v. Bonto-Perez, G.R. No. 109808, ‘March 1, 1995). Agencies Given the Duty to Promote the Welfare and Rights of Migrant Workers: Department of Foreign Affairs (DFA); DOLE; POEA; ‘Overseas Workers Welfare Administration (OWWA) — It provides social and welfare services including insurance coverage, legal assistance, placement assistance, and remittance’ services to Filipino overseas, BensLABOR STANDARDS SAN GEDA MEMORY AID 2018 workers. Under R.A. No. 8042, it shall provide foreign exchange earnings of these workers are the Filipino migrant worker ‘and his family remitted through authorized financial institutions of assistance in the enforcement of contractual _the Philippine government in line with the country's Obligations by agencies, entities and/or their economic. development program. Non-compliance principals; with the laws and regulations on remittance of 5. Re-Placement and Monitoring Center (RPM) - _ foreign exchange earnings and recourse to the use develops livelihood programs for the retuming of unauthorized and unofficial financing institutions workers to reintegrate the returning migrant had led to the detriment of the country’s balance of workers to the Philippine society; payments and econamic development program 6. NLRC — tasked with the | settlement or ° ("Whereas” clauses, E.0. No. 857) adjudication of labor disputes; 7. NRCO (National Reintegration Center for Note: Mandatory remittance is done by remitting a OFWs) = provides a mechanism for the portion of their salary through BSP and DOLE reintegration of the OFWs into the Philippine authorized agents (7 POQUIZ, supra at 31). society, serves as a promotion house for their local employment, and tap their skills and Potentials for national development; and 8. DOH — regulates the activities and operations of all clinics which conduct medical, physical, optical, dental, psychological and other similar examinations, hereinafter referred to as health examinations, on Filipino migrant workersi"@S) requirement for their overseas employment rs crn) Geueuey aero) Pa ard Workers For Filipino Cae UC) Sarr Rec eee ua oticud Cees iging Facilities 70% Article 18: Ban on Direct Hiring, Please -s86 discussion on Ban on Direct Hiring) ARTICLE 19: COMMISSION ON FILIPINOS ‘OVERSEAS var: The CFO, attached to the DFA, replaced the Office of Emigrant Affairs. It assists in the formulation of Policies affecting Filipinos overseas and formulates an integrated program that promotes the welfare of Filipinos overseas (E.P. Big. 79). | Service Workers Rina ae (EPOQUIZ, supra at 84) excepts ‘to Mandatory Remittance: (URU) Filipino servicemen working in US. military ARTICLE 20: NATIONAL SEAMEN BOARD, E.0. 797 (issued on May 1, 1982) abolished NSB and transferred its functions to the POEAS Gensiiations: °2- Where the worker's immodiate family members, ARTICLE 21: FOREIGN SERVICE ROLE AND dependents, or beneficiaries are Residing with PARTICIPATION him abroad: and This is superseded by B.P. Big. 79 entitled “An Act 3. Immigrants’ and Filipino professionals and Creating the Commission on Filipinos Overseas and employees working with” United. Nations for Other Purposes.” ‘agencies or specialized bodies (Resolution No. 1-83, Inter-Agency Committee for Note: It is necessary to monitor the status of OFWs Implementation of E.0. No. 857) in their respective areas of assignment and insure that they are not exploited or abused by their foreign Effects of Failure to Remi principal employers. 1. Workers who fail to comply with the mandatory remittance requirement shall be suspended or ARTICLE 22: MANDATORY REMITTANCE OF excluded fram the list of eligible workers for FOREIGN EXCHANGE EARNINGS ‘overseas employment. Subsequent violations All overseas Filipino workers are required to remit a Shall warrant his repatriation. portion of their foreign exchange earnings ranging > Eyaployers who tall to comply shall be excluded from 50% to 80%, depending on the worker's kind of from the overseas employment program. job, to. their’ families, dependents and/or g._rivate employment agencies or entities shall beneficiaries (POEA RULES, Book Ill, Rule Vill) face canceliation or revocation of their licenses: cr authonty to rocruit, without prejudice to other Reason: To protect the welfare of families, liabilities under existing laws and regulations dependents and beneficiaries and to ensure that the (E.0. No. 857, Sec. 9). 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 25LABOR STANDARDS SAN BEDA MEMORY AID 2018 (Articte 23: Composition of the Board and Article 24: Board to Issue Rules and Collect Fees — Superseded by Sec. 4 of E.0. 24) EMPLOYMENT OF NON- RESIDENT ALIENS TITLE TW ALIENS : EMPLOYMENT OF NON RESIDENT ARTICLE 40: EMPLOYMENT PERMIT OF NON- RESIDENT ALIENS Alien Employment Permit (AEP) is required for entry into the country for employment purposes and is issued after determination of the non-availability of @ 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. Al foreign nationals who intend to engage employment in the Philipines shall eppy (0.0. No. 146-15, Sec. 1. 7 Alien Employment Registratl (AERC) is required for immigrar aliens. They are not required to sé Bermit (Almodiel v. NLRC, GR. Nox 14, 1993). Note: Only non-resident aliens até secure AEP. Employment Permit Required (For Ni ‘All Foreign nationals seeking admis Philippines for the purpose of employment: 2. All Non-resident foreign nationals ~ working in the Philippines; 3. Non-resident foreign nationals Admitted to the Philippines on non-working visas and who wish to seek employment; and 4. Missionaries or religious workers who intend to ‘engage in gainful employment (D.0. No. 12-01, Sec. 1) Validity/Renewal AEP shall be valid for 1 year unless the employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed 3 years (D.0. No. 146-15, Sec. 9). ‘An application for renewal shall be filed before its ‘expiration. Application with expired AEP shall be considered new application (D.0. No. 146-15, Sec. 10). Note: Employment permit should be secured regardless of the source of compensation and duration of the employment, whether the 26 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS SAN Become 4 BértinbdtdSE Ceechrtig ing tothe” employment is parttime or temporary (Revised Guidelines for Issuance of Alien Employment Permit, Secs. 2-3). An AEP i Ass) ‘Compliance by the applicant employer or the foreign national with the substantive and documentary requirements; 2. Determination of the SOLE that there is no available Filipino national who is competent, able and willing to do the job for the employer; and 3. Assessment of the SOLE that the employment of the foreign national will redound to the national benefit (D.0. No. 12-01, Sec. 3) issued based on the following: (CoDe- Note: D.0. 12-01 and the accompanying DOLE Primer state that the Understudy Training Program is no longer a requirement in the issuance of AEP land the employer has now the option to implement technology. frome jent permit in order to work in the LAD-PIT) tlonals elected as members of the Board who do not occupy any other but have only voting rights in the Al forbiga ationals granted exemption by Law; 3, sQynerfard representatives of foreign nationals ympanies are Accredited by the POEA to the Philippines for a limited period 4,Jalt-members of the Diplomatic service and ‘foreign government officials accredited by and with reciprocity arrangement with the Philippine government; 5. Permanent resident foreign _ nationals, probationary, or temporary resident visa holders; 6. Officers and staff of International organizations ‘of which the Philippines is a member, and their legitimate spouses desiring to work in the Philippines; and 7. Foreign nationals who come to the Philippines to Teach, present and/or conduct research studies in’ universities and colleges‘as visiting, ‘exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that the ‘exemption is on a reciprocal basis (0.0. No. 146-15, Sec. 2)LABOR STANDARDS SAN BEDA MEMORY AID 2018 Grounds for Denial of Application of AEP (FARWC) ‘Submission of Falsified documents (0.0. No. 146-15, Sec. 11); 2. Availability of Filipino who is competent, able and willing to the job intended for the foreign national (D.O. No. 146-15, Sec. 11) 3. Non-compliance with any of the Requirements for issuance of AEP (0.0. No. 146-15, Sec. 11); 4, Misrepresentation of facts in the application (0.0. No. 146-15, Sec. 11); 5. Grave Misconduct in dealing with or il treatment of workers (D.0. No. 146-15, Sec. 11); or 6. The foreign national has been Convicted of a criminal offense or a fugitive from justice (LABOR CODE, Art. 40) Grounds for Cancellation/Revocation of Alien Employment Permit (Non-CoMMITS-Grab) ‘Non-compliance with any of the requirements or Conditions for which the employment permit was issued; Foreign national has been) Convict criminal offense or a fugtve froin justc ‘Meritorious objection or information agains employment of foreign national: CO LLLE Misrepresentation of facts in the Employer has Terminated the the foreign national ‘Submission of falsified or tampered documents! Grave Misconduct in dealing with oil teatment of workers; and ployment, of NO gs BW 15, Sec. 12). Fines for (a) working without valid AEP\and (6), for employing foreign nationals without. valid ae 1. As to alien employee - The Regional Director shall impose a fine of P10,000 for every year of fraction thereof on foreign nationals found working without valid AEP. 2. As to alien employer — Employers found employing foreign nationals without valid AEP shall also pay a fine of P10,000 for every year of fraction thereof (D.0. No. 146-15, Sec. 15). Rule on Nationalized Business General Rule: Foreigners may not be employed in cortain nationalized business. ‘The employment of aliens in entities engaged in business whose exercise or enjoyment is reserved only to Filipinos or to corporations or associations whose capital should be at least 60% Filipino-owned are prohibited (C.A. No. 108, Sec. 2-A, as amended by P.D. No. 715, otherwise known as the Antik Dummy Law). plication; ——-- “ane Disapproval of the application for an AEP. s DOJ or by the PRC, if applicable (0.0. No. 14 Exceptions: (Se80) Where the Secretary of Justice specifically authorizes the employment of technical personnel; 2. Aliens who are members of the Board of directors of corporations in proportion to theit allowable participation in the capital of such entities (DOJ Opinion No, 143, (1976)); and 3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory or advisory positions, but for a limited period (E.0. No. 226, (1987) ARTICLE 41: PROHIBITION TRANSFER OF EMPLOYMENT After the issuance of an employment permit: 1. Aliens shall not transfer to another job or change his employer without prior approval of the Secretary of Labor; and 2. Non-fesident aliens’ shall not take up ‘employment in violation of the provisions of the LABOR CODE, Art. 41). AGAINST tions ‘bf the abovementioned acts will the aliep*to punishments provided in Arts “Cog aA 364 of te Labor Code ard to deportation icerof sentence. / SUBMISSION OF LIST joyer employing non-resident foreign shall Submit a list to the Secretary of Labor 730 Gays after such date indicating the mes; 12’ Ciizenshi '3./ Foreign and local addresses; 4. Nate of employment; and 51()Status of stay in the country (LABOR CODE, ‘Art 42) HUMAN RESOURCES TITLE ONE: NATIONAL MAN POWER DEVELOPMENT PROGRAM CHAPTER |. NATIONAL POLICIES AND. ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION ARTICLE 43-56: TECHNICAL EDUCATION AND SKILLS DEVELOPMENT AUTHORITY Note: The National Manpower and Youth Council (NMYC) has been replaced and absorbed by Technical Education and Skills Development Authority (TESDA) created under R.A. 7796 or the TESDA Act of 1994. 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | 27LABOR STANDARDS SAN BEDA MEMORY AID 2018 Statement of Goals and Objectives of R.A. No. 7796 (DRIMS) 4. To inculcate Desirable values 2 To recognize and encourage —_ the complementary Roles of public and private institutions; 3. To attain International competitiveness; 4. To Meet demands for quality middle-level manpower; and 5. To disseminate Scientific and _ technical knowledge base (R.A. No. 7796, Sec. 3); Midalo-Leve! Manpower refers to those: 1. Who have acquired practical skills and knowiedge through formal. or non-formal education and training equivalent to at least a secondary education but preferably a post- secondary education with’ a corresponding degree oF diploma; or 2. Skilled workers who have become highly competent in their trade or craft as altested by industry (R.A. No. 796, Sec. 4, par. (e)) Ime Two: TRAMING ano YieLov Teed wonnens CHAPTER I: TYPES OF SPECIAL 4. Apprentice; 2. Leamer; and 3. Handicapped, KERS— APPRENTICES AND LEARNERS ARTICLE 57: STATEMENT OF OBJECTIVE! THE TRAINING AND EMPLOYMENT OF SPEC WORKERS Se Objectives: (ONA) x To help meet the Demand of the econdmy for trained manpower; 2. To establish a National apprenticeship program through the participation of employers, workers, and government and non-government agencies; and 3. To establish Apprenticeship standards for the protection of apprentices (LABOR CODE, Art. 57). ARTICLE 58: DEFINITION OF TERMS Apprenticeship is a practical training on the job supplemented by related theoretical instruction, for a highly skilled or technical occupation for a period of not less than 3 months but not more than 6 months (LABOR CODE, Art. 58) Apprentice is a person undergoing training for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement (R.A. No. 7796, Sec. 4, par. (K)) 28 | 2016 SAN BEDA CENTRALIZED BAR OPERATIONS, sega Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeship by TESDA (R.A. No. 7796, Sec. 4, par. (m)) Note: It is no longer the Secretary of Labor, but the TESDA, who approves apprenticeable occupations (RA, No. 7796, Sec. 4, par. (m)). 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 (R.A. No. 7796, Sec. 4, par. om). Itis also a contract wherein a prospective employer binds himself to train the apprentice who in tum accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties, and responsibilities of each parly (R.A. No. 7796, Sec 4, par. (I). training jis a practical work experience jclual ,\participation in the productive {t9/or acquired by an apprentice (IRR les ive Wo COLLEGE Peas jor ode, Book Wl, Rule Vi, Sec. 2, par. QUALIFICATIONS OF se. Ped tlofe of Apprentices (15-PAC) Meas ig years of age (os amonced by RA ing. 7610 Soc. 12), proved thet f elow 18 ygars, he’ shall not be eligible for hazardous ip focuinpion ipation; 2,/ Physically fit for the occupation in which he desites to be trained; Note: Total physical fitness in not required of an apprentice-applicant unless itis essential to the expeditious and effective learning of the ‘eccupation. Only physical defects, which constitute real impediments to the effective performance, as determined by the plant apprenticeship committee, may disqualify and applicant (IRR of the Labor Code, Book Il, Rule V1, Sec. 13). 3. Possess vocational Aptitude and capacity for the particular occupation as established through appropriate tests; and 4. Possess the ability to Comprehend and follow oral and written instructions (IRR of the Labor Code, Book Il, Rule VI, Sec. 11). ARTICLE 60: EMPLOYMENT OF APPRENTICES Qualifications to be met by the Employer of Apprentices: 1. Only employers in highly technical industries may employ apprentices; andLABOR STANDARDS SAN BEDA MEM@RY AID 2018 2. Only in apprenticeable occupations as determined by TESDA (LABOR CODE as amended by EO, No. 111, Art. 60) Highly Technical Industries are those trade, business, enterprise, industry, or other activity, Which are engaged in the application of advanced technology (IRR of the Labor Code, Book II, Rule Vi, Sec. 2, par. ()). Requisites for Valid Apprenticeship (QuESAP) ‘Qualifications of apprenticeship are met; oe prescribed minimum salary (IRR of the Labor Code, Book Il, Rule VI, Sec. 29); 3. Apprenticeship agreement duly executed and ‘Signed; 4. Apprenticeship program must be Approved by DOLE (now TESDA); otherwise, the apprentice shall be deemed a regular employee (Nitto Enterprises v. NLRC, G.R. No. 114337, September 29, 1995); and 5. Period of apprenticeship ‘shall_not monthe (IRF of ine Labor Code, Boo VI, Sec. 19). COLLEGE Coonipalssry Note: At the termination of the oe employer is. not required. t0.- Bont i i employment Number of Apprentices to be te in os S ., Companies e A participating enterprise shall be allowed to fal apprentices only up to a maximum 20% of its regular workforce (TESDA Circular Nos ey. There is no valid apprenticeship if (aww: 1. The Agreement submitted to TESDA wasrpiade long “after the workers started undergoing apprenticeship; 2. The Work performed by the apprentice was different from those allegedly approved by TESDA; 3. The Workers undergoing apprenticeship are already skilled workers; and 4. The workers were | required to continue undergoing the apprenticeship beyond 6 months (Atlanta Industries, Inc. v. Seboline, G-R. No. 187320, January 26, 2011) ARTICLE 61: CONTENTS OF APPRENTISHIP AGREEMENT Apprenticeship Agreement shall include: (FB- THo-sWaP-c) Full name and address of the contracting parties; 2. Date of Birth of the apprentice; 3. Name of Trade, occupation or job in which the apprentice shall be trained and the dates on which such training will begin and will ‘pproximately end; 4, Approximate’ number of Hours of on-the-job training with compulsory theoretical instructions Which the apprentice shall undergo during his training: 5. Schedule of the work processes of the itadeloccupation in which the apprentice shall be trained and the approximate time to be spend on the job in each process; Graduated scale of Wages to be paid to the apprentice; 7. Probationary period of the apprentice during which either party may summarily terminate their agreement; and 8. A Glause that if the employer is unable to fulfil his. training obligation, he may transfer the agreement, with the consent of the apprentice, to any other employer who is willing to assume such obligation (IRR of the Labor Code, Book Il, Rule Vi, Sec. 18), 19 hours of apprentices shall not exceed im number of hours prescribed by law, if / or a workePof his age and sex. Time spent in theoretical instruction shall be xd hours of work. An apprentice not 1d by law from working 8 hours may bby his employer to work overtime and 3 to do the job, and the overtime work redjted toward his taining time (RR ofthe fe “Appresiticeship agreement is signed by: 1LiApprentice, if of age, otherwise: “a. by his parent or guardian, or b. in the latter's absence, by an authorized representative of TESDA: and 2, Employer or his duly authorized representative (LABOR CODE, Art. 62) Defective Contract If the agreement is found to be defective and serious damage would be sustained by either party if such a defect is not corrected, the DOLE-TESDA shall advise the employer within’S working days not to Implement the agreement pending amendment thereof (IRR of the Labor Code, Book I, Rule Vi, Sec. 23) ARTICLE 63: VENUE OF APPRENTICESHIP PROGRAM 1. Within the sponsoring firm, establishment, or entity; or 2. Within a DOLE training center or other_public training institutions; or 2OIS SAN BEDA CENTRALIZED BAR OPERATIONS | 29)LABOR STANDARDS SAN BEOA MEMORY AID 20148 3. Initia training in trade fundamentals in a training center or other institutions with subsequent actual work participation within the sponsoring firm_or entity during the final stage of training (LABOR CODE, Art. 63) ARTICLE 64: SPONSORING OF ‘APPRENTICESHIP PROGRAMS Apprenticeship Programs shall be Undertaken or Sponsored by: The plant, shop or premises of the employer or firm concemed if the apprenticeship program is organized by an individual employer or firm; 2. The premises of 1 or several firms designated for the purpose by the organizer of the program if such Organizer is an association of employers, civic group and the ike; 3. DOLE Training Genter or other public training institutions with which TESDA has made the appropriate arrangements (IRR of the Labor Code, Book il, Rule VI, Sec. 4) ARTICLE 65-67: ‘APPRENTICESHIP AGREEME! lavestigation of Violation of deren Agreement CO Either party to an apprenticeship terminate the same after the probs only for a valid cause. Action may be Valid Causes for Termination of niet = Seehvied tr 1. Bythe employer (PAW-PET) | a. Poor” Bhysical condition, manent disability or prolonged _ ill which | incapacties the apprentice from working: b. Habitual Absenteeism in on-the-job ‘raining and related theoretical instructions: c. Will disobedience of company rules or insubordination to lawl order of a superior 4. Boor efficiency or performance on the job or in the classroom for a protonged. period Gospite | warnings duly given tothe apprentice: fe. Engaging in violence or other forms of aross misconduct inside that employer's premises: and {. Thott or malicious destruction of company property and/or equipment (IRR of the Labor Code, Book Il, Rule VI, Sec. 25) 2. By the apprentice (SBC-ReP) a. Substandard or deleterious working ‘conditions within the employer's premises; b. Bad health or continuing illness: c. Cruel or inhumane treatment by the ‘employer or his subordinates: d. Repeated violations by the employer of the terms of the apprenticeship agreement; and 20 | 2018 SAN BEDA CENTRALIZED BAR OPERATIONS @. Personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job (IRR of the Labor Code, Book Il, Rule VI, Sec. 25). Appeal ‘The decision of an authorized agency of the DOLE may be appealed to the Secretary of Labor, with 5 days from receipt of the adverse decision The decision of the Secretary of Labor shall be final and executor (LABOR CODE, Art. 66). Exhaustion of Administrative Remedies No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement unless he has exhausted all available administrative remedies (LABOR CODE, Art. 67). “The plant apprenticeship committee shall have initial yy for setting differences arising out of ip sgregments (IR of the Labor Code, tyytho has a recognized apprenticeship provide aptitude tests to apprentice- LABOR CODE, Art. 68). if the employer does not have _faclities, the DOLE may provide the ‘charge (IRR of the Labor Code, Book «ll, Rule Vinee. 12). ae QE CLE’ 69: RESPONSIBILITY FOR LTHEORETICAL INSTRUCTION Related theoretical instructions to apprentices may =e undertaken by the employer himself if he has adequate facilities and qualified instructors for the purpose. He shall indicate his intention to assume such responsibility in the apprenticeship standard of his program (IRR of the Labor Code, Book Il, Rule Vs, Sec. 27). ARTICLE 70: VOLUNTARY ORGNIZATION OF APPRENTICESHIP PROGRAMS General Rule: The organization of apprenticeship program shall be primarily a voluntary undertaking ‘of employers (LABOR CODE, Art. 70). Exception: Computsory apprenticeship When grave national emergencies, particularly those involving security of the state, arise of particular requirements of | economic, development so demand, the Secretary of Labor may recommend the President of the Philippines the compulsory training of apprentices in certain trades, occupations, jobs,LABOR STANDARDS SAN BEDA MEMO RY AID 2018 ‘or employment levels where shortage of trained manpower is deemed critical (IRR of the Labor Code, Book Il, Rule VI, Sec. 41). 2. Where the services of foreign technicians are utllized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs. ARTICLE 71: costs ‘An additional deduction from taxable income of 1/2 of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person -or enterprise organizing an apprenticeship program (LABOR CODE, Art. 71) DEDUCTABILITY OF TRAINING Requisites for Deductibility of Training Costs (ONP) 1. Apprenticeship program must be Duly recognized by the DOLE: 2. Deduction shall Not exceed 10% of di wage: and Sy 3. Employer | must Bey his peent COMPESANTION ae Apprentices may be hired warosk Zn where on-the-job training is: (SGB) 1. Required by the School/Training Curriculum as a requisite for Gr 2. A requisite for Board examinati Labor Code, Book Il, Rule VI, Sec Working Scholars. There is no employer-employee between students on one hand, and 7 colleges, or universities on the other hand where: there is an agreement between them under which the former agreed to work for the latter in exchange {or the privilege to study for free of charge provided the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement (IRR of the Labor Code, Book Ill, Rule X, Sec. 14). The student is not considéred an employee. But if he causes injury or damage to a third person, the school may be held liable under Art 2180 of the Civil Code (Filamer Christian Institute v. JAC, GR. ‘No. 75112, August 17, 1992). CHAPTER Il: LEARNERS ARTICLE 73: LEARNERS DEFINED 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 ‘SAN Be pve OLLEGE pel Aad! ony short period of time which shall NOT exceed 3 months (LABOR CODE, Art. 73). Learnership Agreement is an employment and training contract entered into between the employer land the learner. Note: On-the-job or practical training of a leaner need not be supplemented by theoretical instruction (IRR of the Labor Code, Book Il, Rule Vil, Sec. 1, par. (a)). ARTICLE 74: WHEN LEARNERS MAY BE HIRED No experienced workers are available; 1. The employment of learners being necessary to prevent curtailment of _-—- employment ‘opportunities; and 2. The employment will neither create unfair ‘competition in terms of labor costs nor impair or lower working standards (LABOR CODE, Art. 74). nt of Minors as Learners ow 18.Years of age shall not be eligible ent, g& fearner, Those below 18 years of be employed. in. non-hazardous ri (IRR of the Labor Code, Book I, Rule ei 75: LEARNERSHIP AGREEMENT ip agreement shall include: (NOW-C) Names and addresses of the contracting ies -cypation to be leamed and the duration of the ‘period which shall not exceed 3 months; Ze Re srainic '3,/ The Wage or salary rates of learner which shall me feast 75% of the applicable. minimum ‘and “Gommiiment to employ the leaner, if he so ‘dosires, as a regular employee upon completion of training Note:.A leamer who has worked during the first 2 months shall be deemed a regular employee if training is terminated by the employer before the cond of the stipulated period through no fault of the leamer (IRR of the Labor Code, Book Il, Rule Vi, Sec. 4) Approval and Cancellation of Learnership Program. Leamership program must be submitted to the Apprenticeship Division of the DOLE Regional Office concerned for approval. Under R.A. No. 7796, the program must be approved by TESDA. The Secretary of Labor may cancel any learnership program if, upon inquiry, it is found that the justification ‘of the program no longer exists (IRR of the Labor Code, Book Hl, Rule Vil, Secs. 3 and 7) 2018 SAN BEDA CENTRALIZED BAR OPERATIONS | SI