II.

BASIC PRINCIPLES
a. Constitutional and statutory rights of workers {Sec.3, Art. XIII}
- Right to self-organization
- Right to collective bargaining
- Right to security of tenure
- Right to just and humane conditions of work
- Right to collective negotiations
- Right to peaceful concerted activities
- Right to strike {grounds: unfair labor practices/bargaining deadlock}
- Right to living wage
- Right to participate in policy and decision making
- Right to just share in the fruits of production
- LC gives right to strike only to “registered” labor
organization, which means duly registered with DOLE or
in any branch or local thereof (CSC and DOLE for govt.
employees)
- In the case of civil servants, though not denied with
the right to self-organization, employees may not resort
to strikes, walkouts and other temporary work
stoppages to pressure the Government to accede to
their demands. (EO 180, Rul III, Sec. 4: The terms and
conditions of employment in the government including
any political subdivision or instrumentality thereof and
government-owned and controlled corporations with
original charters are governed by law and employees
therein shall not strike for the purpose of securing
changes thereof; Social Security Systems Employees
Association vs. CA; Manila Public School Teachers
Association vs. Laguiao; Alliance of Government Workers
vs. Minister of Labor and Employment; GSIS vs.
Kapisanan ng Manggagawa sa GSIS)

Note:

DOLE Advisory No. 4 Series of 2016 was issued, pursuant to

the provisions of Articles 5 and 168 of the LCP, to ensure the
compliance with Labor Standards and Occupational and
Safety Health Standards and better working conditions for all
workers and/or talents, including children and elderly, in the
Movie and Television industry.

Art. 5.- authority of DOLE and other government agencies

charged with administration and enforcement of LCP or
any of its parts to promulgate the necessary
implementing IRRs.

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Art. 168.- authority of DOLE Secretary, by appropriate
orders, to set and enforce mandatory occupational safety
and health standards to eliminate or reduce osh hazards
in all workplaces and institute new, and update existing,
programs to ensure safe and healthful working conditions
in all places of employment
Salient points:
 Actual work hours:
 shall not exceed 8 hrs.
 shall not exceed 12 hrs. if required to work
beyond 8 hours.
 shall not exceed 8 hrs. for elderly (60 yrs.
a. Aspects of Labor Standards
and above)
 shall not exceed 4 hrs./day nor shall exceed
20 hrs./week for children below 15 yrs.
old*
 shall not exceed 8 hrs./day nor shall exceed
b. Employer-Employee Concept (Art. 97. 219, LCP)
40 hrs./week for children 15 yrs. of age but
under 18 yrs. old*
 children in movie and televisions industry –
not allowed to work:
 below 15 yrs. old - between 8:00
PM to 6:00 AM of the following day
 15 yrs. of age but below 18 yrs. old -
between 10:00 PM to 6:00 AM of
the following day
 waiting time considered as working time
*in accordance with RA 9231, AN ACT
PROVIDING FOR THE ELIMINATION OF THE
WORST FORMS OF CHILD LABOR AND
AFFORDING STRONGER PROTECTION FOR
THE WORKING CHILD, AMENDING FOR THIS
PURPOSE REPUBLIC ACTNO. 7610
 Provided that the following must be observe:
- occupational safety and health
- adequate transportation facilities
- safe/adequate/free accommodation when
on location/set
- minimum benefits not lower than the
minimum standards under the Labor Code
- social welfare benefits
- Compensation
- Benefits
- Working conditions
Employer - includes any person acting in the interest of an
employer, directly or indirectly. The term shall not
include any labor organization or any of its officers
or agents except when acting as an employer.
Note:
A labor organization may be deemed an
“employer” when it as acting as such in relation to
person rendering services under hire, particularly
in connection with its activities for profits or gain.
e.g. a labor organization which operates a
stevedoring and arrastre business under
contracts with various shipping firms, with
an organizational structure, operational
systems and facilities similar to those of
Labor 1 Notes/Pia Sarcon
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 independent contractors engaged in the 1. Where the employment has
same line of business. been fixed for a specific project
or undertaking the completion or
Employee – includes any person in the employ of an
termination of which has been
employer.
determined at the at the time of
- The term shall not be limited to the employees the engagement of the employee
of a particular employer, unless this Code shall 2. Where the work or service to be
explicitly states. performed is seasonal in nature
- It shall include any individual whose work has and the employment is for the
ceased as a result of or in connection with any duration of the season.
current labor dispute or because of any unfair - Where the casual employee has
labor practice if he has not obtained any other rendered at least 1 yr. of service,
substantially equivalent and regular employment whether such service is continuous or
broken, with respect to the activity in
which he is employed and his
employment shall continue while such
c. Employer-Employee Relationship
activity exists.
- Necessary for the provisions of the Labor Code to apply.
- The existence or absence of employer-employee relation
 Casual- deemed as such if not covered by the first
is a question of law and a question of fact.
paragraph of Art. 295
- The character of the relationship between the parties is
not whatever they call it in their contract but what the
law calls it after the examination of the facts.
- The employer-employee relationship may cover core or
non-core activities of the employer’s business.
d. Four-fold Test – use to determine the existence of employer-
- Art. 295 is not the yardstick in determining the existence
employee relationship. It comprises the following elements:
of an employment relationship; it merely distinguishes
1. The selection and engagement of the employee;
between two (2) kinds of employees:
2. The payment of wages;
3. The power of dismissal; and
 Regular - where the employee has been engaged
4. The employer’s power to control the employee with
to perform activities which are usually necessary
respect to the means and methods by which the work
or desirable in the usual business or trade of the
is to be accomplished.
employer, notwithstanding the provisions of the
- Control test- the most important element, in
written agreement to the contrary and regardless
which the absent of such, employer-employee
of the oral agreement of the parties.
relationship does not exist.
 Exceptions:

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e. Two-tiered test:
1. Control test – the putative employer’s power to
control the employee with respect to the means and
methods by which the work is to be accomplished;
and
compensation was paid in cash on percent
commission basis.
- Stevedores
- Lawyers, doctors, nurses, dentists, public relations
practitioners and other professionals – if employed
by a private corporation or even the government

2. Economic reality test – the underlying economic - Resident physician – there is employer-employee
realities of the activity or relationship. Under this test, relationship between the resident physician and the
the proper standard of economic dependence is training hospitals unless:
whether the worker is dependent on the alleged
 There is a training agreement between
employer for his continued employment in that line
them; and
of business.
 The training program is duly accredited or
approved by the appropriate government
 Stipulation in the contract not controlling in determining agency.
the existence of the relationships.
 Exclusivity provision does not indicate employment - Employees of cooperatives
relationship. - Insurance agents
 Retainer arrangement does not give rise to employment
relationship.

Cases where employment relationship exists:

- Jeepney drivers and conductors- under the
“boundary system” between the driver and conductor
and the owner, the relationship is that of employer- Cases where employment relationship does not exist:
employee
- Commission salesman
- Taxi drivers – under the same “boundary system”
- Contract of agency, which is governed by the contract
of agency and the provisions of the NCC on agency
- Fishermen – fishermen-crew who rendered services in
various capacities aboard the fishing vessels of a
company engaged in “trawl” fishing and whose

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 - Working scholars are not employees of the school - Expiration of employment period
(Sec. 14, Rule X, Book III, Rules to implement the
Labor Code) Factors that do not interrupt employment relationship:
- Leave of absence with pay
- Medical consultants and visiting physicians – only in
- Illegal dismissal
allocating responsibility in cases of medical negligence
- Strike
that they are treated as employees of the hospital.

- Independent contractors or their employees do not

f. Principal-agent relationship – by contract of agency, a person
have any employer-employee relationship with the
binds himself to render some service or to do something in
company with which said independent contractors are
representation or on behalf of another with the consent or
dealing or transacting business.
authority of the latter.
- Persons rendering caddying services to club
Principal – the person represented; one whom the agent
members are not employees of the golf club. Neither
represents and from whom he derives his
the club’s suggestion as to the rate of fees to be paid
authority.
to caddies nor the implementation of the group
rotation system indicates that the caddies are Agent- the person acting in a representative capacity; one
employees thereof. who acts for and represents another.

ER-EE relationship is deemed suspended in the following  Agency vs. Employment Relationship
cases:
 The relations between capital and labor are not
1. When the employee is under suspension, either as a
merely contractual. They are so impressed with
disciplinary penalty or as a preventive measure during
public interest that labor contracts must yield to
the pendency of the disciplinary proceedings against
the common good.
him.
 Therefore, such contracts are subject to the
2. During off season, in case of regular seasonal
special laws on labor unions, collective bargaining,
employees.
strikes and lockouts, closed shop, wages, working
3. When fishing vessels are dry-docked or undergoing
conditions, hours of labor and similar subject. (Art.
repairs.
1700 NCC)
4. When an employee is laid off for a period not
 Agency is governed by contract of agency under
exceeding 6 mos. due to suspension of business
the Civil Code, while Employment relationship is
operations.
governed by labor laws or civil service law.
5. When an employee fulfills a civic or military duty.
Termination of E-E relationship:
Agency Employment Relationship
- Dismissal
- Resignation or abandonment of employment
Basis is representation. Basis is rendition of service with

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 compensation. Contractual employee –includes one employed
by a contractor or subcontractor to perform or
Relationship is essentially Contractual, but also impressed complete a job, work or service pursuant to an
contractual. with public interest. arrangement between the latter and a principal.

It is entered into to Purpose is for the employee to - Civil Code and pertinent commercial laws-
establish a juridical render some service for the direct govern between the principal and contractor
relationship on behalf of benefit of the employer or
the principal with third employer’s business. - Labor Code and special pertinent laws –
parties. govern between the contractor and his
employees
- No ER-EE relationship exist between the
f. Principal and Independent Contractor
principal and contractor’s employees, but it
exists where the contracting arrangement is
Independent contracting
not legitimate.
- an arrangement whereby the *principal agrees to
farm out to a contractor the performance or
completion of a *specific job or work within a definite
Labor-only contracting – an arrangement whereby the
or predetermined *period, regardless of whether
contractor or subcontractor merely recruits, supplies, or
such job or work is to be performed or completed
places workers to perform a job or work for a principal, and
*within or outside the premises of the principal.
the elements enumerated of Sec. 5 of DO 174, Series of
(D.O.No.174, Series of 2017)
2017, implementing Articles 106-109 of LCP, are present,
- One party to a contract undertakes to accomplish a
certain result according to his own method and Sec. 5 of DO 174, Series of 2017. – Absolute Prohibition
without being subject to the other party’s control against Labor-only Contracting. Labor only contracting,
except as to the result of the work, the contract is one which is prohibited, refers to an arrangement where:
for a piece of work.
- Trilateral Relationship: a) i. the contractor or subcontractor does not have
Principal – refers to any employer who puts out substantial capital, or
or farms out a job, service or work to a ii. the contractor or subcontractor does not have
contractor or subcontractor investments in the form of tools, equipment,
machineries, supervisions, work premises, among
Contractor or subcontractor – refers to any others, and
person or entity engaged in a legitimate iii. the contractor’s or subcontractor’s employees
contracting or subcontracting arrangement recruited and placed are performing activities

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 which are directly related to the main business a. Right or Prerogative?
operation of the principal;
- It is the right of an employer to hire its own employees.
- Labor laws do not, generally, authorize interference with the
or
employer’s judgment in the conduct of its business.
- The determination of the qualifications and fitness of
b) The contractor or subcontractor does not exercise
workers for hiring are exclusive prerogatives of
the right control over the performance of the work
management.
or employee.
- The employer is free to determine, using his own discretion
and business judgment, all elements of employment, "from
hiring to firing," except in cases of unlawful discrimination, or
Examples of independent contracting
those which may be provided for by law. (NFL, et. al., v.,
- Dealership
NLRC, 202 SCRA 346 [1991]).
- Commission agent
- Messenger/janitorial service
- Independent operator
b. Legal Limitations/Prohibitions Prior to Hiring
i. Under the Labor Code
- Article 136 which prohibits an employer from
requiring as a condition of employment that a woman
employee shall not get married.
- Article 139 which prohibits an employer from
employing any person below 18 years old in an
undertaking which is hazardous, or deleterious in
nature.

- Article 248 which considers as unfair labor practice an

act of the employer to require as a condition of
employment that a person or employees shall not join
a labor organization. 

III. HIRING
ii. Under Special Laws

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- RA No. 7610 otherwise known as "Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act," as amended by Republic Act No.
7658, expressly defines the conditions under which a
child below 15 years old may be employed.
o Sec. 12 thereof states that children below 15 years
of age shall not be employed except:
1) When a child works directly under the sole
responsibility of his parents or legal guardian
and where only members of the employer’s
family are employed: Provided, however, that
his employment neither endangers his life,
safety, health and morals, nor impairs his
normal development: Provided further, That
the parent or legal guardian shall provide the
said minor child with the prescribed primary
and/or secondary education; or
2) When a child’s employment or participation
in public entertainment or information through
cinema, theater, radio or television is essential:
Provided, the employment contract is
concluded by the child’s parents or legal
guardian, with the express agreement of the
child concerned, if possible, and the approval
of the Department of Labor and Employment:
and Provided, That the following requirements
in all instances are strictly complied with:
(a) The employer shall ensure the
protection, health, safety, morals and
normal development of the child;
(b) The employer shall institute
measures to prevent the child’s
exploitation or discrimination taking
into account the system and level of
remuneration, and the duration and
arrangement of working time; and
c) The employer shall formulate and
implement, subject to the approval and
supervision of competent authorities, a
continuing program for training and
skills acquisition of the child.
In the above exceptional cases where any such child
may be employed, the employer shall first secure,
before engaging such child, a work permit from the
Department of Labor and Employment which shall
ensure observance of the above requirements.
- Sec. 14 thereof that no person shall employ child
models (below 18 years old) in all commercials or
advertisements, promoting alcoholic beverages,
intoxicating drinks, tobacco and its by-products, and
violence.
- RA No. 7877 Anti-Sexual Harassment Act of 1995:
- Sec. 3. -(a) In a work-related or employment
environment, sexual harassment is committed when:
(1) The sexual favor is made as a condition in
the hiring or in the employment, re-employment or
continued employment of said individual, or in
granting said individual favorable compensation,
terms of conditions, promotions, or privileges; or the
refusal to grant the sexual favor results in limiting,
segregating or classifying the employee which in any
way would discriminate, deprive or diminish
employment opportunities or otherwise adversely
affect said employee.
- RA No. 8504 Philippine AIDS Prevention and Control Act
of 1998-
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 - Sec. 35. Discrimination in the workplace. —
Discrimination in any form from pre-employment to
post-employment, including hiring, promotion or
assignment, based on the actual, perceived or
suspected HIV status of an individual is prohibited.
Termination from work on the sole basis of actual,
perceived or suspected HIV status is deemed
unlawful.
- RA No. 7277 – An Act Providing for The Rehabilitation,
Self-Development and Self-Reliance Of Disabled Person
And Their Integration Into The Mainstream Of Society
And For Other Purposes.
- SECTION 5. Equal Opportunity for Employment. - No
disabled persons shall be denied access to
opportunities for suitable employment. A qualified
disabled employee shall be subject to the same terms
and conditions of employment and the same
compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able-bodied
person. Five percent (5%) of all casual, emergency and
contractual positions in the Department of Social
Welfare and Development; Health; Education, Culture
and Sports; and other government agencies, offices or
corporations engaged in social development shall be
reserved for disabled persons.
- R.A. 8791 General Banking Law of 2000
- SECTION 19. Prohibition on Public Officials. — Except
as otherwise provided in the Rural Banks Act, no
appointive or elective public official, whether full-time
or part-time shall at the same time serve as officer of
any private bank, save in cases where such service is
incident to financial assistance provided by the
government or a government-owned or controlled
corporation to the bank or unless otherwise provided
under existing laws.
- RA NO. 10354 "The Responsible Parenthood and
Reproductive Health Act of 2012″.
- Section 23. Prohibited Acts. –
(c) Any employer who shall suggest, require,
unduly influence or cause any applicant for
employment or an employee to submit
himself/herself to sterilization, use any modern
methods of family planning, or not use such
methods as a condition for employment,
continued employment, promotion or the
provision of employment benefits. Further,
pregnancy or the number of children shall not
be a ground for non-hiring or termination from
employment;
- RA NO. 10911 AN ACT PROHIBITING DISCRIMINATION
AGAINST ANY INDIVIDUAL IN EMPLOYMENT ON
ACCOUNT OF AGE AND PROVIDING PENALTIES
THEREFOR
- Sec. 5. Prohibition of Discrimination in Employment
on Account of Age. –
(a) It shall be unlawful for an employer to:
1) Print or publish, or cause to be
printed or published, in any form of
media, including the internet, any
notice of advertisement relating to
employment suggesting preferences,
limitations, specifications, and
discrimination based on age;
-
Labor 1 Notes/Pia Sarcon
9
 (2) Require the declaration of age or
birth date during the application
process;
(3) Decline any employment application
because of the individual's age;
-
- Sec. 6. Exceptions. – It shall not be unlawful for an
iii.
employer to set age limitations in employment if:
(a) Age is a bona fide occupational qualification
reasonably necessary in the normal operation
of a particular business or where the
differentiation is based on reasonable factors
other than age;
(b) The intent is to observe the terms of a bona
fide seniority system that is not intended to
evade the purpose of this Act;
- RA No. 9208 Anti-Trafficking in Persons Act of 2003
- Section 4. Acts of Trafficking in Persons. - It shall be
unlawful for any person, natural or juridical, to
commit any of the following acts:
(a) To recruit, transport, transfer; harbor,
provide, or receive a person by any means,
including those done under the pretext of
domestic or overseas employment or training
or apprenticeship, for the purpose of
prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or
debt bondage;
(e) To maintain or hire a person to engage in
prostitution or pornography;
(g) To recruit, hire, adopt, transport or abduct
a person, by means of threat or use of force,
fraud, deceit, violence, coercion, or
intimidation for the purpose of removal or sale
of organs of said person; and
-
(h) To recruit, transport or adopt a child to
engage in armed activities in the Philippines or
abroad.
Under other law
- Civil Code, Art. 1703 - No contract which practically
amounts to involuntary servitude, under guise
whatsoever, shall be valid.
- Revised Penal Code
- Art. 272. Slavery. — The penalty of prision mayor
and a fine of not exceeding 10,000 pesos shall be
imposed upon anyone who shall purchase, sell,
kidnap or detain a human being for the purpose of
enslaving him.
If the crime be committed for the purpose of
assigning the offended party to some immoral
traffic, the penalty shall be imposed in its
maximum period.
- Art. 273. Exploitation of child labor. — The
penalty of prision correccional in its minimum and
medium periods and a fine not exceeding 500
pesos shall be imposed upon anyone who, under
the pretext of reimbursing himself of a debt
incurred by an ascendant, guardian or person
entrusted with the custody of a minor, shall,
against the latter's will, retain him in his service.
-
- Art. 274. Services rendered under compulsion in
payment of debt. — The penalty of arresto mayor
in its maximum period to prision correccional in its
minimum period shall be imposed upon any
person who, in order to require or enforce the
Labor 1 Notes/Pia Sarcon
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 payment of a debt, shall compel the debtor to
work for him, against his will, as household
servant or farm laborer.
-
- Art. 278. Exploitation of minors. — The penalty of
prision correccional in its minimum and medium
periods and a fine not exceeding 500 pesos shall
be imposed upon:
1. Any person who shall cause any boy or girl
under sixteen years of age to perform any
dangerous feat of balancing, physical strength,
or contortion.
2. Any person who, being an acrobat, gymnast,
rope-walker, diver, wild-animal tamer or circus
manager or engaged in a similar calling, shall
employ in exhibitions of these kinds children
under sixteen years of age who are not his
children or descendants.
3. Any person engaged in any of the callings
enumerated in the next paragraph preceding
who shall employ any descendant of his under
twelve years of age in such dangerous
exhibitions.
xxx

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