A.
FACTS:
Air Zoom, Inc. is an airline company
principally based in Cebu City. It has 5,000
rank-and-file employees nationwide and has
been operational for almost 20 years now.
Aside from the flight, cabin and ground crew
personnel, the company employs its own
emergency, safety & maintenance personnel
including security and janitorial personnel.
They worked from Monday to Friday in various
shifts.
Air Zoom Rank-and-File Employees Union-
Federasyon ng Manggagawa sa Paliparan is
the certified rank-and-file bargaining union of
the company. This union is a chartered local
of Federasyon ng Manggagawa sa Paliparan,
the largest federation of unions in the
transportation industry. It has an existing
collective bargaining agreement with the
company valid until December 31, 2017,
containing a “No Strike, No Lock-out” clause,
among other stipulations.
For the past six months, the airline company
was embroiled into a number of employment
issues when it adopted and implemented the
following policies, to wit:
a) policy lowering the age of compulsory
retirement for its female flight attendants from
65 years old to 50 in order to ensure their
health and safety, taking into account their
maternal functions; and
b) policy limiting salary deduction to a
maximum of 40% of one’s take home pay in
order to prevent employees who take on loans
from going home with zero net pay.
In its latest tirade, the Union condemned the
aforementioned company policies as
discriminatory and illegal. Over the objection
of management, the union’s complaints were
submitted to voluntary arbitration after they
were left unresolved at the grievance
machinery.
Meanwhile in March 2017, the airline
management decided to spin-off and
outsource its airport service operation, in-flight
catering and call center by contracting the
services of Zoom-Zoom All Around Multi-
Purpose Cooperative, a third party service
provider duly registered with the Cooperative
Development Authority and duly registered
with the DOLE. The airline company
announced that it incurred a net loss of $10.6
Million for the quarter ending in March 2015
from an income of $31.6 Million in the same
period last year, due to escalating labor costs,
stiff competition, rising fuel costs, and
unstable foreign currency exchange brought
about by the global economic slowdown. With
the outsourcing plan, the airline is aiming for a
modest profit for its incoming fiscal year, after
raking in $72.5 Million in the previous fiscal
year.
Together with Batman and Robin, the Union’s
President and Secretary, respectively, some
2,600 regular employees who are members of
the union were notified of the termination of
their employment effective on May 1, 2017.
Notices were posted at the airline’s bulletin
boards, and individual notices were delivered
to each of the affected employees on April 1,
2017. As a measure of compassion, the airline
management asked the affected workers to
join and apply for employment with the third
party service provider.
In view of this announcement, the Union led
by Batman, filed on April 5, 2017 a notice of
strike with the NCMB, accusing the
management of illegal contracting amounting
to union busting and other various unfair labor
practices. Series of conferences were held
before the NCMB. Of the affected employees,
some 500 of them led by Wonderwoman, the
Union’s Vice-President, accepted the offer to
join Zoom-Zoom All Around Multi-Purpose
Cooperative as members-owners.
Feeling uncertain on the outcome of the
conferences, the Union on April 10, 2017
submitted to the NCMB, the results of the
strike vote which the Union conducted among
its members after serving prior notice to the
NCMB. Meanwhile, in one of the NCMB
conferences held on April 25, 2017, the
company’s Vice-President for Human
Relations announced to the Union
representatives that all ground crew assigned
at airport counters would be on “off duty”
beginning on April 28, 2017 until the end of
the month with pay. The Union’s President
could not believe the latest decision of
management, further accusing the company
of union busting. A marathon conference
continued with the NCMB the whole afternoon
until midnight of April 26 to explore all
avenues for the peaceful settlement of the
dispute.
On April 27, 2017, some 300 ground crew
members, including those in charge of check
in and catering assigned at the airport, led by
the Union's officers stopped working and
abandoned their respective work stations
beginning at 8:00 a.m. to protest the
outsourcing plan. This led to the cancellation
of all domestic and international flights until
noon, causing massive inconvenience to
almost 14,000 passengers. The disruption
came as the airline company was already
operating a reduced number of flights as a
temporary measure to ensure volumes remain
manageable during the transition into
outsourcing.
Caught off-guard, the company’s Vice-
President for Airport Operations immediately
requested for PNP police assistance to escort
the strikers out of the airport premises, some
of who were bodily lifted outside to prevent
them from disrupting the airport operations.
The blue guards of the airline company also
assisted the police authorities. The strikers
were immediately replaced by contractual
workers from Zoom-Zoom All Around Multi-
Purpose Cooperative. However the contractor
failed to deliver. There were no adequate
ground staff in the counters. Only few call
center operators were able to attend to
customers, most of them were even starting
their learning curves, with no experienced in
dealing with impatient, angry and agitated
airline customers and passengers.
Upon learning of this development, the
Secretary of the DOLE on April 28 motu
proprio, issued an Assumption of jurisdiction
order (“AJO”), and reminded the parties to
maintain the status quo. The AJO was
immediately posted at two conspicuous places
at the airport station while copies thereof were
served to the Union by registered mail.
Meanwhile, the Union’s President accused
management of coercion and harassment,
and initiated the filing of criminal cases
against the company’s board of directors and
officers with the City Prosecutor’s office.
Criminal complaints were also similarly lodged
by the management with the same office
against the Union’s officers and members who
knowingly participated in the stoppage of work
which, according to top management,
amounted to economic sabotage and violation
of existing civil aviation rules and regulations.
On May 1, 2017, the company announced the
release and payment to the separated
employees of their separation pay computed
at one-half month pay for every year of
service, including payment of their last pay
and other benefits due to them i.e.
proportionate 13th month pay. The highest
separation package reached P2.4 Million,
while those who only served for a minimum of
one year was about P120,000.00. However,
the top management excluded those workers
who participated in the April 27 stand off at the
airport pending resolution of the criminal
complaints lodged against them before the
City Prosecutor’s Office. This prompted the
Union led by its President to file with the
Secretary/DOLE where the AJO case was
pending, a motion for indirect contempt
against the airline management and officers
for flagrantly defying the AJO.
Now for those who did not participate in the
April 27 stand off, the Union led by its Vice-
President Wonderwoman filed a class suit in
their behalf against the airline company with
the arbitration branch of the NLRC for
underpayment of separation pay and
unlawful withholding of such pay, final pay
and other benefits.
Meanwhile, the Secretary/DOLE issued a
notice for the holding of a conference. All the
parties were required to appear. On the other
hand, a separate notice was issued by the
arbitration branch of the NLRC for the holding
of a conciliation and mediation conference. On
other other hand, the City Prosecutor sent
subpoenas to the concerned parties for the
filing of their counter-affidavits and conduct of
preliminary investigation.
B. QUESTIONS:
Question No.1: If you were the VA, how will
you rule on the issues?
Question No.2: If you were the Secretary of
DOLE, how will you rule on the AJO case, and
the contempt case?
Question No. 3: If you were the Labor Arbiter,
how will you decide on the case?
Question No. 4: If you were the City
Prosecutor, how will you rule on the case?
Write legibly. Explain your answer/s concisely.
Please do not repeat the facts.
[1]QUESTION
My establishment engaged in the manufacture
of softdrink bottles was visited by the DOLE for
the conduct of a compliance visit. I then learned
from the DOLE Labor Law Compliance Officer
that there was one worker who was working
with my company for the past 10 years until his
resignation last month who lodged a complaint
with the DOLE for underpayment of wages
amounting to Php5,000. In spite my explanation
that this former worker was merely disgruntled,
the DOLE Labor Law Compliance Officer ("DOLE
LLCO") issued me the Notice of Results. Did the
DOLE LLCO act correctly? Please advise.
[2] QUESTION
My establishment is engaged in the manufacture
of beer products. I have rank-and-file employees
in my factory. Six months after, I granted a daily
wage adjustment to these factory workers from
Php366 to Php400. Their fellow rank-and-file
workers in the administrative department who
were paid the prescribed daily minimum wage,
however, complained of wage distortion since
no similar increase was given to them. Do these
workers have a valid grievance? Why or why
not? Please advise.
[3] QUESTION
In my pharmaceutical company, two of my
outside salesmen who are paid a fixed salary of
Php20,000 plus Php5,000 monthly allowance for
expenses, and commission of 10% on all sales,
applied for retirement although they were both
below the retirement ages provided by law. In
consideration of their 10 years of loyal and
dedicated service, I allowed them to retire and
paid them 150% of their latest total salary. Two
months after, another salesman who has been
employed only for two years likewise applied for
retirement, which I also granted but paid him
only 100% of his latest total salary. This
salesman now complained that he was unjustly
and unlawfully discriminated, anchoring his
claim on company practice. Does he have a valid
cause of action? Why or why not. Please advise.
[4] QUESTION
Due to Wage Order No. 20 issued in Region VII,
my furniture establishment was visited by the
DOLE for the conduct of a joint assessment. In
the course of such assessment, I was found by
the DOLE Labor Law Compliance Officer to be
paying my rank-and-file piece rate workers only
Php15 for every piece of chair produced which is
way below the prescribed daily minimum wage,
and thus, advised to pay the wage difference.
However, I have a facility valuation from the
RTWPB to prove that the meals I provide these
workers during lunch were duly approved,
thereby making their daily wages twice the
prescribed daily minimum wage. Do I need to
comply? Why or why not? Please advise.
[5] QUESTION
I am the President of a call center in Cebu City
which caters to the needs of clients operating in
various time zones. As I am anticipating
successive non-working special holidays due to
the forthcoming APEC conferences which will be
held in Cebu, I am planning to operate for seven
straight days starting on Monday. After making
an advance announcement of my plan, I was
surprised to receive a protest letter from fifty of
my employees who are members of Iglesia Ni
Kristo, informing me of their strong reservation
of making them work on Saturday, their
scheduled rest days, which is also their day of
worship. Do these employees have legal basis
for their protest? Kindly advise.
[6] QUESTION
I worked as a regular utility worker for a
businessman in Lapu-Lapu City who own a large
rice mill. Customarily, I am paid a daily cash
wage of Php250.00 plus daily wage in kind
consisting of 5 kilos of "Ganador" rice worth
Php150.00, the value of which I have accepted
in writing. I am planning to file a complaint
against my employer for wage underpayment
since my daily cash wage is way below the
prescribed minimum wage. Do I have solid legal
basis to pursue my complaint? Please advise
ANSWER
As to your inquiry, we advise you not to pursue
your complaint, as it does not have any solid
legal basis. As a general rule, wages are payable
in cash. However, there is an exception where
the wage is payable partly in cash and partly in
kind.
“Facilities” is defined in the Section 5, Rule 7-A,
Book III of the Omnibus Rules Implementing the
Labor Code as “articles or services for the
benefit of the employee or his family but shall
not include tools of the trade or articles or
service primarily for the benefit of the employer
or necessary to the conduct of the employer’s
business.” As provided for in the Labor Code, if
payment qualifies as facilities, it forms part of
the wages of the employee, and as such, the
reasonable value thereof may be deducted from
the employee’s wage.
It is well-settled that in order for payment to
qualify as facilities and be considered as an
integral part of an employee’s wage, the
following requisites must be present:
1. It must be customarily furnished by the
employer to the employee;
2. It must be charged at a fair and reasonable
value; and
3. The provision on deductibility must be
voluntarily accepted by the employee in writing.
In your case, the payment in kind qualifies as
“facilities” because it is an expense necessary
for you and your family’s existence and
subsistence. Also, it satisfies all the requisites in
order for a facility to be wage-deductible. Since
the daily wage in kind consisting of 5 kilos of
“Ganador” rice worth P150.00 is customarily
furnished by your employer and you have
accepted the value of such in writing, the fair
and reasonable value thereof can be charged
and deducted from your wage. Therefore,
finding no legal basis, we advise that you do not
pursue your complaint, as your daily wage does
not fall below the prescribed minimum wage and
the payment in kind qualifies as facilities and
forms part of your daily wage
of P400.00.
[7] QUESTION
I was a marketing officer of a retail
establishment engaged in repair and retread
services for used tires, until I was offered by its
owner to operate a tire and retreading business,
using the establishment's business name and
service system. Since the owner would provide
me with revolving funds I can use to run the
business subject to periodic liquidation, I
accepted the offer and quit my job.
In carrying out my undertaking, I abide with the
owner's dictated prices, and faithfully observe
the owner's prescribed quality of services and
good business practices. Out of my sales from
this business, I am required to deduct from the
revolving fund the expenses I spent with the
balance thereof representing my income. For the
past eight months, I noticed however that I was
getting income way below the monthly minimum
wage in the region. I intend to file a complaint
against the owner for underpayment of wages?
Please advise.
ANSWER
In response to your inquiry, we strongly advise
you to file a complaint to protect your rights as
a worker.
Given that you did not state the exact amount of
the monthly-wage you have been receiving for
the past 8 months, we would like to inform you
of the Cebu City standing basic wage of
P366/Day for non-aggricultural work.
As a worker, you have a right to a Living Wage,
under Section 3, Article 8 of the 1987
Constitution. This means that you are entitled to
an amount of family income needed to provide
for the family's food and non-food expenditures
with sufficient allowance for savings/investments
for social security so as to enable the family to
live and maintain a decent standard of human
existence beyond mere substinence level, taking
into account all of the family's psychological,
social and other needs.
The Law protects workers Mr. Dela Cruz, to not
only receive wages for mere day-to-day survival
but for more. The manner of work that you are
undertaking as of the moment is not fair labor
but is what we call a "sweating system" which
means you are being exploited as workers with
wages so low as to be insufficient to meet the
bare cost of living.
Lastly, Article 113 of the Labor Code of the
Philippines states that;
"No employer, in his own behalf or in behalf of
any person, shall make any
deduction from the wages of his employees
except;
1.) as payment for premium on the insurance
2.) Union Dues with the authorized consent in
writing of the employee
3.) Deductions authorized by law.
As your situation is not among those listed, the
deduction of the employer from your wages is
unlawful.
[8] QUESTION
I am the owner of a coconut plantation. During
the harvest season, I employ workers to harvest
fresh coconuts. While at the farm, these workers
break the coconut shells, remove the meat from
the shells, dry the shells and place the dried
copras in sacks of one hundred kilos each to be
transported and sold later to public markets. I
pay my workers the daily minimum agricultural
rates but they protested and claim they are into
processing of coconuts into copra, which
involves non-agricultural work. Please advise.
ANSWER
To answer your predicament, you need to
understand the nature of the work that your
farm workers are engaged in. In your point of
view, you consider their work to be agricultural
and in so considering, are paying them the
minimum agricultural rates. On the other hand,
they think that they should be paid the non-
agricultural wage rates as they are engaged in
processing of coconuts into copra.
To shed light on this matter, we consult the
Labor Code. Article 97 (d) defines “agriculture”
as including farming in all its branches and,
among other things, includes the cultivation and
tillage of soil, dairying, the production,
cultivation, growing and harvesting of any
agricultural and horticultural commodities, the
raising of livestock or poultry, and any practices
performed by a farmer on a farm as an incident
to or in conjunction with such farming
operations, but does not include the
manufacturing or processing of sugar, coconuts,
abaca, tobacco, pineapples or other farm
products.
The above-stated provision clearly cites the
manufacturing of coconuts as not falling under
the term “agriculture”. Based on your
description of the work that they do (i.e.
breaking coconut shells, removing meat from
the shells, and placing dried copras in sacks), it
involves the processing of coconuts and is
therefore excluded from the term “agriculture”.
It is also important for you to understand that
different minimum wage rates apply to different
types of work. Since it has already been
established that the nature of your farm
workers’ job is non-agricultural, they must be
paid with the minimum wage rates for non-
agriculture work.
[9] QUESTION
I am the owner of a large poultry farm in
Batanes island. My farm can produce thousands
of egg a day from chickens. I have ten (10) full
time workers whose main job involve processing
the eggs, and mixing it with milk, sugar and
other ingredients using an automated machinery
and kitchen equipment, and packing them into
candies. I pay them the daily minimum
agricultural wage rates applicable in the region.
Did I act correctly? Please advise.
ANSWER
Unfortunately, your act of paying your 10 full-
time workers the daily minimum agricultural
wage rates is not correct. This is because
“Agricultural work” as defined by Article 97(d) of
the Labor Code, means the raising of livestock
or poultry and other chores incidental to
ordinary farming operations. In your case, even
if you are engaged in a poultry farm, your
employees are not performing chores incidental
to ordinary farming operations specifically the
raising of livestock or poultry as they are
performing industrial work.
“Industrial Work” is performed when the harvest
are processed into finished product or
transformed to another product. In relation to
your case, your workers are involved in
processing the eggs and mixing it with milk,
sugar, and other ingredients using an
automated machinery and kitchen equipment
and packing them into candies. Therefore, your
workers are engaged in industrial work.
This differentiation is important because the
agricultural is generally lower than the industrial
pay rate. Because of this, you appear to be
underpaying your employees.
In conclusion, we advise you to pay them at
least the daily industrial minimum wage rates.
[10] QUESTION
I own a bottling company, which manufactures
containers for juices. One department I have
involves the manual cleaning and inspection of
bottle containers. I pay the workers the daily
minimum wage for an 8 hour of work.However,
I noticed that my workers are less productive
since they can only clean and inspect an
average of 250 containers in a normal work day.
Can I change my method of fixing compensation
without violating any law? Please advise.
ANSWER
Yes, you can change your method of fixing
compensation without violating any law. In the
facts presented, your employees are classified
as daily-paid employees. Under the R.A. 6727 or
the Wage Rationalization Act, the employer can
pay its employees any amount provided that it
does not fall below the prescribed minimum
wage.
Considering your predicament involves slack in
demand, there is a remedy provided under the
Labor Code. The remedies are as follows: (1)
compressed workweek; (2) reduce working
days; (3) temporary suspension of operation of
not more than 6 months. You can avail any of
those as you deemed sufficient.
[11] QUESTION
Our company’s business is in real estate.
Recently, we received several claims for
payment of overtime pay, premium and holiday
pay from 10 licensed and registered real estate
brokers who were responsible in the
advertisement and negotiation for the sale of
our 2hectare commercial land in Carbon, Cebu
City. We already paid these brokers their
commissions and this, we were surprised why
they made these additional claims against the
company. May we request your opinion and
advise as regards the claims made?
ANSWER
The claims made by the real estate broker
should not be granted. The contractual
relationship between you and the 10 real estate
brokers is a principal-contractor relationship,
and is not covered under our labor laws, but is
found in the Civil Code. This kind of contractual
relationship means that you as the principal are
not in control over the means, manner, and
method as to how the work is to be done, and
under the Civil Code, you as the principal may
only control the results thereof. The power over
the means, manner, and method as to how to
conduct the work is an essential element in an
employer-employee relationship, that of which is
absent here. In the said relationship, the
employee here would then be entitled to
overtime time pay, premium pay, and holiday
pay.
To sum up our advice, the 10 real estate brokers
here are not entitled to overtime pay, premium
pay, and holiday pay since such benefits are
merely reserved exclusive for employees under
an employer-employee relationship.
[12] QUESTION
I received a complaint from my construction
workers for alleged illegal deduction of wages.
In particular, they accuse my company that the
value of the meals and lodging which we
provide them within the construction site to
enable them to be available at anytime while
construction activities are going on, should not
have been deducted from their wages. Can you
please advise us if the complaint has basis? And
secondly, can you advise us of the potential
liability of the company, if any?
ANSWER
This is in relation to your query on the complaint
of your construction workers for the alleged
illegal deduction of wages from the lodging and
meals that you provided them.
Under Article 113 of the Labor Code on Wage
Deduction, it is said that no employer, in his
own behalf or in behalf of any person, shall
make any deduction from the wages of his
employees subject to certain exceptions. One
exception pertains to cases where the employer
is authorized by law or regulations issued by the
Secretary of Labor and Employment. Deduction
for value of meals and other facilities is an
example of a deduction authorized by law.
However, it is very important to revisit
Department Order No. 126-13 Series of 2013 or
the Revised Guidelines on the conduct of Facility
Evaluation. Under the said guidelines, facilities,
which is part and deductible from the wage, was
distinguished from supplements, which is not
wage deductible and independent of the wage.
As defined, facilities refer to articles or services
provided by the employer for the benefits of the
employee or his/her family but shall not include
tools of the trade or articles or services primarily
for the benefit of the employer or necessary to
the conduct of the employer’s business. Meals
and housing for dwelling purposes are generally
considered as facilities.
In order that the fair and reasonable value of
the facilities may be deducted from the wages of
the employees. The following requisites must
concur:
a. Facilities subject of valuation are customarily
furnished by the employer to the employee.
b. Facilities must be charged at a fair and
reasonable value.
c. Deductibility of the value of the facilities must
be voluntarily accepted in writing by the
employee.
In your case, food and lodging are not
considered facilities but supplements. A benefit
or privilege granted to an employee for the
convenience of the employer is not facility. The
criterion in making a distinction between
facilities and supplements does not so much lie
in the kind but the purpose. Considering
therefore that your company provided you meals
and lodging within the construction site to
enable the worker to be available at any time for
construction activities are going on, it can be
said that the workers’ availability is a necessary
matter in the construction operations and is
beneficial to the employer. The meals and
lodging in your case should be considered as a
supplement and should not be deducted from
your wage.
For the liability, your company will need to
compensate the amount withheld form the
employees subject to interest.
[13] QUESTION
I just got myself employed in a call center as
technical operator. During the orientation, I was
informed of a company policy which provides for
an early retirement incentive package as
follows:
xxx 1. For those who have reached 40 years old
– 5 months incentive pay
2. For those who have reached 45 years old – 3
months incentive pay
3. For those who have reached 50 years old –
No incentive pay
I need your opinion and advice if the above
employment policy is valid or not.
ANSWER
The policy is valid. Company management is in
the position to prescribe the rules as to the early
retirement incentive package. It may choose he
age for the retirement and the incentive it would
give, provided that it is in accordance with your
collective bargaining agreement. Your consent
based on your independent judgment to the
agreement is the final say.
[14] QUESTION
I am the owner of a coconut plantation. For the
past two years, I have an arrangement with two
residents near the plantation, where I divided
my property between the two and entrusted
each one of them to take care of the land,
remove the weeds near the trees, fumigate the
trees and prevent strangers from taking the
coconuts. I pay these two residents 1/5 of the
total coconut harvest I make from the area
entrusted to them. Yesterday, I received a
complaint from one of the residents, claiming
payment of his wages for the past two years.
Please advise.
ANSWER
The two residents have no right to claim for
their respective wages, under Article 98 of our
Labor Code, wages shall not apply to farm
tenancy or leasehold, domestic service and
persons working in their respective homes in
needle work or in any cottage industry duly
registered in accordance with law.
Since your industry is under Farm tenancy or
leasehold in accordance with RA 1199, tenancy
exist whenever two persons agree on a joint
undertaking for agricultural production wherein
one party furnishes the land and the other is his
labor, and the produce thereof to be divided
between the landholder and the tenant in
proportion to their respective contributions.
The 1/5 of coconut harvest that you have paid
for two years will be their proportion to their
respective contribution of the work done,
therefore you no longer have to pay them for
wages.
[15] QUESTION
My restaurant establishment was visited by a
DOLE labor law compliance officer last week,
who told me it was a compliance visit due to a
complaint filed by one of the waiters. I was
served a Notice of Results, finding violation of
non-payment of overtime pay, premium pay and
holiday pay for the past 2 years. I cannot
understand such violation because I have a
payroll for the past 2 years which clearly
indicated that all my waiters were paid these
labor standards, as in fact, I have proof both
documentary and testimonial that they actually
received payment. I would like to seek your
urgent legal advice and guidance on the
complaint filed and how to address it.
ANSWER
In view of the foregoing, the correct way to
address your query is to contest the Notice of
Inspection Results and present the documentary
proofs i.e. the payroll you mentioned that
proves you have paid correctly, copies of their
employment contracts, and to have your waiters
put their testimonies under oath in an affidavit
stating that you have made such payments for
the past two years as required by Section 6 of
Rule X, Book III, of the Labor Code.
Please be advised that we have to submit our
contest of the Notice of Inspection Results with
all our documentary proof of your compliance
from the date you have received such Notice at
earliest to the Regional Director of the DOLE or
during the hearing of the case at the latest.
[16] QUESTION
In Batanes island, I own a 200 square meter
warehouse where I employ families in one small
remote barangay and supply them with clothing
materials to make embroideries using seashells
and organic materials. I need your advice
whether I need to pay them the prescribed
minimum wages?
ANSWER
Under Art. 98 of the Labor Code, one of the
exemptions for the non-payment of the
prescribed minimum wage are those persons
working in their respective homes in needle
work.
In your case, although your business is engaged
in clothing materials to make embroideries using
seashells and organic materials, which in nature
is involved in needlework, the law provides that
for the exemption for the payment of prescribed
minimum wage to apply, the persons or
employees must be working in their respective
homes.
Since your employees are working in your own
warehouse and not in their respective homes,
the exemption for the prescribed minimum wage
is not applicable.
Hence, you are obliged to comply with the
prescribed minimum wage.
[17] QUESTION
On the occasion of a big fire in Mandaue City area
two years ago, some personnel of a private non-
governmental organization which is funded by
private donations had to work an average of 12
hours a day, sometimes continuously to assist our
firemen. Some of these personnel filed a claim for
overtime compensation. However, each claim did
not exceed Php5,000.00. Will these claims
prosper?
ANSWER
The firemen can validly claim for overtime
compensation.
Under Article 87 of the Labor code overtime work
is work performed beyond 8 hours a day and an
overtime work is an additional compensation
equivalent to his regular wage.
no employee shall be made to work more than 8
hours a day against his will but this rule is not
absolute, any worker can also be compelled to
work under compulsory overtime work under
article 89 of the Labor code
Under subparagraph “b” when it is necessary to
prevent loss of life or proper or incase of imminent
danger to public safety due to an actual or
impending emergency in the locality caused by
serious accidents, fire, flood, typhoon, earthquake,
epidemic, disaster or calamity
Under this rule employer should pay his workers to
render overtime work so they are entitled to
overtime pay.
Follow up question:
But the employer is the Bureau of Fire Protection?
Will it not matter?
Answer:
The Bureau of Fire is not the employer of those
personnel who assisted the firemen but the private
non- governmental organization.
Under article 82 of our labor code, overtime
compensation shall apply to all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees,
field personnel, members of the family of the
employer who are dependent on him for support,
domestic helpers, persons in the personal service
of another, and workers who are paid by results.
In this case, considering that the employer is the
non-governmental organization, the personnel are
still entitled with overtime compensation.
[18] QUESTION
My restaurant establishment was visited by a
DOLE labor law compliance officer (LLCO) last
week to conduct a Joint Assessment. During such
visit, the LLCO told me I have to pay my Chief
Cook overtime pay since the daily time record of
this manager would show that he works regularly
an average of 10 to 12 hours daily, for the past 3
years. When I disagreed, I was served by the
Regional Director/DOLE of a Notice of Results,
finding violation of non-payment of overtime pay.
Please advise.
[19] QUESTION
I have been in the show business for so many
years. And my childhood friend works exclusively
for me for the past two years, doing all household
chores. During weekend, he accompanies me
when I have some performances. Because of busy
schedule, he was not able to use his leave benefit.
Yesterday, he demanded from me to pay him the
cash equivalent of his unused leave benefits.
Please advise.
[20] QUESTION
I own a fleet of taxi cabs. And I employ drivers
whose arrangement with me is to use the taxi
cabs for 24 hours at anytime of the day and night
except Monday, and I pay them 20% of the gross
proceeds earned. I got a claim from one of the
drivers for payment of overtime pay. Please
advise.
[21] QUESTION
In my pharmaceutical company, two of my outside
salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses
and commission of 10% on all sales lodged a
complaint for payment of overtime pay,
contending that they regularly devote as much as
12 hours a day to sales efforts, which yield to
much higher revenue to the company compared to
their prescribed monthly quotas. Please advise.
[22] QUESTION
In my family-owned pharmacy, two of my
unmarried adult children work full time as
assistants, regularly working an average of 15
hours daily, since they live with me and my wife in
the same house. They are paid a fixed
monthlysalary which they share to the family
upkeep. After they got married, one of the two
children sued me for non-payment of labor
standards. Please advise.
[23] QUESTION
I have been in the show business for so many
years. And my make-up artist and hairdresser who
has been my childhood friend works exclusively for
me in Cebu City. During the week, when I have
some performances or events to attend to, he has
to work for 10 hours daily. However, when there
no events, he only works for one to two hours,
and there are also days when he does not work at
all. In spite the irregular schedule, I pay him a
fixed weekly wage of Php2,000.00. Yesterday, he
confronted me about his pay. Please advise.
[24] QUESTION
I am the President of a call center in Cebu City
which caters to the needs of clients operating in
various time zones. As I am anticipating successive
non-working special holidays due to the
forthcoming APEC conferences which will be held
in Cebu, I am planning to operate for seven
straight days starting on Monday. After making an
advance announcement of my plan, I was
surprised to receive a protest letter from fifty of
my employees who are members of Iglesia Ni
Kristo, informing me of their strong reservation of
making them work on Saturday, their scheduled
rest days, which is also their day of worship. Do
these employees have legal basis for their protest?
Kindly advise.
[25] QUESTION
Due to Wage Order No. 20 issued in Region VII,
my furniture establishment was visited by the
DOLE for the conduct of a joint assessment. In the
course of such assessment, I was found by the
DOLE Labor Law Compliance Officer to be paying
my rank-and-file piece rate workers only Php15 for
every piece of chair produced which is way below
the prescribed daily minimum wage, and thus,
advised to pay the wage difference. However, I
have a facility valuation from the RTWPB to prove
that the meals I provide these workers during
lunch were duly approved, thereby making their
daily wages twice the prescribed daily minimum
wage. Do I need to comply? Why or why not?
Please advise.
[26] QUESTION
In my pharmaceutical company, two of my outside
salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses,
and commission of 10% on all sales, applied for
retirement although they were both below the
retirement ages provided by law. In consideration
of their 10 years of loyal and dedicated service, I
allowed them to retire and paid them 150% of
their latest total salary. Two months after, another
salesman who has been employed only for two
years likewise applied for retirement, which I also
granted but paid him only 100% of his latest total
salary. This salesman now complained that he was
unjustly and unlawfully discriminated, anchoring
his claim on company practice. Does he have a
valid cause of action? Why or why not. Please
advise.
[27] QUESTION
My establishment is engaged in the manufacture
of beer products. I have rank-and-file employees
in my factory. Six months after, I granted a daily
wage adjustment to these factory workers from
Php366 to Php400. Their fellow rank-and-file
workers in the administrative department who
were paid the prescribed daily minimum wage,
however, complained of wage distortion since no
similar increase was given to them. Do these
workers have a valid grievance? Why or why not?
Please advise.
[28] QUESTION
My establishment engaged in the manufacture of
softdrink bottles was visited by the DOLE for the
conduct of a compliance visit. I then learned from
the DOLE Labor Law Compliance Officer that there
was one worker who was working with my
company for the past 10 years until his resignation
last month who lodged a complaint with the DOLE
for underpayment of wages amounting to
Php5,000. In spite my explanation that this former
worker was merely disgruntled, the DOLE Labor
Law Compliance Officer ("DOLE LLCO") issued me
the Notice of Results. Did the DOLE LLCO act
correctly? Please advise.
[29] QUESTION
I worked as a regular utility worker for a
businessman in Lapu-Lapu City who own a large
rice mill. Customarily, I am paid a daily cash wage
of Php250.00 plus daily wage in kind consisting of
5 kilos of "Ganador" rice worth Php150.00, the
value of which I have accepted in writing. I am
planning to file a complaint against my employer
for wage underpayment since my daily cash wage
is way below the prescribed minimum wage. Do I
have solid legal basis to pursue my complaint?
Please advise
ANSWER
As to your inquiry, we advise you not to pursue
your complaint, as it does not have any solid legal
basis. As a general rule, wages are payable in
cash. However, there is an exception where the
wage is payable partly in cash and partly in kind.
“Facilities” is defined in the Section 5, Rule 7-A,
Book III of the Omnibus Rules Implementing the
Labor Code as “articles or services for the benefit
of the employee or his family but shall not include
tools of the trade or articles or service primarily for
the benefit of the employer or necessary to the
conduct of the employer’s business.” As provided
for in the Labor Code, if payment qualifies as
facilities, it forms part of the wages of the
employee, and as such, the reasonable value
thereof may be deducted from the employee’s
wage.
It is well-settled that in order for payment to
qualify as facilities and be considered as an
integral part of an employee’s wage, the following
requisites must be present:
1. It must be customarily furnished by the
employer to the employee;
2. It must be charged at a fair and reasonable
value; and
3. The provision on deductibility must be
voluntarily accepted by the employee in writing.
In your case, the payment in kind qualifies as
“facilities” because it is an expense necessary for
you and your family’s existence and subsistence.
Also, it satisfies all the requisites in order for a
facility to be wage-deductible. Since the daily wage
in kind consisting of 5 kilos of “Ganador” rice worth
P150.00 is customarily furnished by your employer
and you have accepted the value of such in
writing, the fair and reasonable value thereof can
be charged and deducted from your wage.
Therefore, finding no legal basis, we advise that
you do not pursue your complaint, as your daily
wage does not fall below the prescribed minimum
wage and the payment in kind qualifies as facilities
and forms part of your daily wage
of P400.00.
[30] QUESTION
I was a marketing officer of a retail establishment
engaged in repair and retread services for used
tires, until I was offered by its owner to operate a
tire and retreading business, using the
establishment's business name and service
system. Since the owner would provide me with
revolving funds I can use to run the business
subject to periodic liquidation, I accepted the offer
and quit my job.
In carrying out my undertaking, I abide with the
owner's dictated prices, and faithfully observe the
owner's prescribed quality of services and good
business practices. Out of my sales from this
business, I am required to deduct from the
revolving fund the expenses I spent with the
balance thereof representing my income. For the
past eight months, I noticed however that I was
getting income way below the monthly minimum
wage in the region. I intend to file a complaint
against the owner for underpayment of wages?
Please advise.
ANSWER
In response to your inquiry, we strongly advise
you to file a complaint to protect your rights as a
worker.
Given that you did not state the exact amount of
the monthly-wage you have been receiving for the
past 8 months, we would like to inform you of the
Cebu City standing basic wage of P366/Day for
non-aggricultural work.
As a worker, you have a right to a Living Wage,
under Section 3, Article 8 of the 1987 Constitution.
This means that you are entitled to an amount of
family income needed to provide for the family's
food and non-food expenditures with sufficient
allowance for savings/investments for social
security so as to enable the family to live and
maintain a decent standard of human existence
beyond mere substinence level, taking into
account all of the family's psychological, social and
other needs.The Law protects workers Mr. Dela
Cruz, to not only receive wages for mere day-to-
day survival but for more. The manner of work
that you are undertaking as of the moment is not
fair labor but is what we call a "sweating system"
which means you are being exploited as workers
with wages so low as to be insufficient to meet the
bare cost of living.
Lastly, Article 113 of the Labor Code of the
Philippines states that;
"No employer, in his own behalf or in behalf of any
person, shall make any
deduction from the wages of his employees
except;
1.) as payment for premium on the insurance
2.) Union Dues with the authorized consent in
writing of the employee
3.) Deductions authorized by law.
As your situation is not among those listed, the
deduction of the employer from your wages is
unlawful.
Should you decide to pursue legal actions, our Law
Firm is willing to aid you in the upholding of your
rights.
[31] QUESTION
I am the owner of a coconut plantation. During the
harvest season, I employ workers to harvest fresh
coconuts. While at the farm, these workers break
the coconut shells, remove the meat from the
shells, dry the shells and place the dried copras in
sacks of one hundred kilos each to be transported
and sold later to public markets. I pay my workers
the daily minimum agricultural rates but they
protested and claim they are into processing of
coconuts into copra, which involves non-
agricultural work. Please advise.
ANSWER
To answer your predicament, you need to
understand the nature of the work that your farm
workers are engaged in. In your point of view, you
consider their work to be agricultural and in so
considering, are paying them the minimum
agricultural rates. On the other hand, they think
that they should be paid the non-agricultural wage
rates as they are engaged in processing of
coconuts into copra.
To shed light on this matter, we consult the Labor
Code. Article 97 (d) defines “agriculture” as
including farming in all its branches and, among
other things, includes the cultivation and tillage of
soil, dairying, the production, cultivation, growing
and harvesting of any agricultural and horticultural
commodities, the raising of livestock or poultry,
and any practices performed by a farmer on a
farm as an incident to or in conjunction with such
farming operations, but does not include the
manufacturing or processing of sugar, coconuts,
abaca, tobacco, pineapples or other farm
products.
The above-stated provision clearly cites the
manufacturing of coconuts as not falling under the
term “agriculture”. Based on your description of
the work that they do (i.e. breaking coconut shells,
removing meat from the shells, and placing dried
copras in sacks), it involves the processing of
coconuts and is therefore excluded from the term
“agriculture”.
It is also important for you to understand that
different minimum wage rates apply to different
types of work. Since it has already been
established that the nature of your farm workers’
job is non-agricultural, they must be paid with the
minimum wage rates for non-agriculture work.
Thank you.
[32] QUESTION
I am the owner of a large poultry farm in Batanes
island. My farm can produce thousands of egg a
day from chickens. I have ten (10) full time
workers whose main job involve processing the
eggs, and mixing it with milk, sugar and other
ingredients using an automated machinery and
kitchen equipment, and packing them into candies.
I pay them the daily minimum agricultural wage
rates applicable in the region. Did I act correctly?
Please advise.
ANSWER
Unfortunately, your act of paying your 10 full-time
workers the daily minimum agricultural wage rates
is not correct. This is because “Agricultural work”
as defined by Article 97(d) of the Labor Code,
means the raising of livestock or poultry and other
chores incidental to ordinary farming operations.
In your case, even if you are engaged in a poultry
farm, your employees are not performing chores
incidental to ordinary farming operations
specifically the raising of livestock or poultry as
they are performing industrial work.
“Industrial Work” is performed when the harvest
are processed into finished product or transformed
to another product. In relation to your case, your
workers are involved in processing the eggs and
mixing it with milk, sugar, and other ingredients
using an automated machinery and kitchen
equipment and packing them into candies.
Therefore, your workers are engaged in industrial
work.
This differentiation is important because the
agricultural is generally lower than the industrial
pay rate. Because of this, you appear to be
underpaying your employees.
In conclusion, we advise you to pay them at least
the daily industrial minimum wage rates.
[33] QUESTION
I own a bottling company, which manufactures
containers for juices. One department I have
involves the manual cleaning and inspection of
bottle containers. I pay the workers the daily
minimum wage for an 8 hour of work.However, I
noticed that my workers are less productive since
they can only clean and inspect an average of 250
containers in a normal work day. Can I change my
method of fixing compensation without violating
any law? Please advise.
ANSWER
Yes, you can change your method of fixing
compensation without violating any law. In the
facts presented, your employees are classified as
daily-paid employees. Under the R.A. 6727 or the
Wage Rationalization Act, the employer can pay its
employees any amount provided that it does not
fall below the prescribed minimum wage.
Considering your predicament involves slack in
demand, there is a remedy provided under the
Labor Code. The remedies are as follows: (1)
compressed workweek; (2) reduce working days;
(3) temporary suspension of operation of not more
than 6 months. You can avail any of those as you
deemed sufficient.
[34] QUESTION
Our company's business is in real estate. Recently,
we received several claims for payment of
overtime pay, premium and holiday pay from 10
licensed and registered real estate brokers who
were responsible in the advertisement
and negotiation for the sale of our 2 hectare
commercial land in Carbon, Cebu City. We already
paid these brokers their commissions and thus, we
were suprised why they made these additional
claims against the company. May we request for
your opinion and advice as regards the claims
made?
[35] QUESTION
I received a complaint from my construction
workers for alleged illegal deduction of wages. In
particular, they accuse my company that the value
of the meals and lodging which we provide them
within the construction site to enable them to be
available at anytime while construction activities
are going on, should not have been deducted from
their wages. Can you please advise us if the
complaint has basis? And secondly, can you advise
us of the potential liability of the company, if any?
ANSWER
This is in relation to your query on the complaint
of your construction workers for the alleged illegal
deduction of wages from the lodging and meals
that you provided them.
Under Article 113 of the Labor Code on Wage
Deduction, it is said that no employer, in his own
behalf or in behalf of any person, shall make any
deduction from the wages of his employees
subject to certain exceptions. One exception
pertains to cases where the employer is authorized
by law or regulations issued by the Secretary of
Labor and Employment. Deduction for value of
meals and other facilities is an example of a
deduction authorized by law.
However, it is very important to revisit Department
Order No. 126-13 Series of 2013 or the Revised
Guidelines on the conduct of Facility Evaluation.
Under the said guidelines, facilities, which is part
and deductible from the wage, was distinguished
from supplements, which is not wage deductible
and independent of the wage. As defined, facilities
refer to articles or services provided by the
employer for the benefits of the employee or
his/her family but shall not include tools of the
trade or articles or services primarily for the
benefit of the employer or necessary to the
conduct of the employer’s business. Meals and
housing for dwelling purposes are generally
considered as facilities.
In order that the fair and reasonable value of the
facilities may be deducted from the wages of the
employees. The following requisites must concur:
a. Facilities subject of valuation are customarily
furnished by the employer to the employee.
b. Facilities must be charged at a fair and
reasonable value.
c. Deductibility of the value of the facilities must be
voluntarily accepted in writing by the employee.
In your case, food and lodging are not considered
facilities but supplements. A benefit or privilege
granted to an employee for the convenience of the
employer is not facility. The criterion in making a
distinction between facilities and supplements does
not so much lie in the kind but the purpose.
Considering therefore that your company provided
you meals and lodging within the construction site
to enable the worker to be available at any time
for construction activities are going on, it can be
said that the workers’ availability is a necessary
matter in the construction operations and is
beneficial to the employer. The meals and lodging
in your case should be considered as a supplement
and should not be deducted from your wage.
For the liability, your company will need to
compensate the amount withheld form the
employees subject to interest.
[36] QUESTION
I have been in the show business for so many
years. And my make-up artist and hairdresser who
has been my childhood friend works exclusively for
me in Cebu City. During the week, when I have
some performances or events to attend to, he has
to work for 10 hours daily. However, when there
no events, he only works for one to two hours,
and there are also days when he does not work at
all. In spite the irregular schedule, I pay him a
fixed weekly wage of Php2,000.00. Yesterday, he
confronted me about his pay. Please advise.
[37] QUESTION
I am working for a meat processing company
which owns a canned corned beef product, selling
one can at Php80.00. Since I am a regular
employee, I am entitled under the company policy
to purchase on credit company canned goods at
50% discount. Last December 2016, I made
several purchases for the Christmas season.
However, the value of the purchases I made on
credit were considered by the company as part
payment of my wages. Do I have any valid
grievance as regards this company policy.
[38] QUESTION
I am the owner of a coconut plantation. For the
past two years, I have an arrangement with two
residents near the plantation, where I divided my
property between the two and entrusted each one
of them to take care of the land, remove the
weeds near the trees, fumigate the trees and
prevent strangers from taking the coconuts. I pay
these two residents 1/5 of the total coconut
harvest I make from the area entrusted to them.
Yesterday, I received a complaint from one of the
residents, claiming payment of his wages for the
past two years. Please advise.
ANSWER
The two residents have no right to claim for their
respective wages, under Article 98 of our Labor
Code, wages shall not apply to farm tenancy or
leasehold, domestic service and persons working
in their respective homes in needle work or in any
cottage industry duly registered in accordance with
law.
Since your industry is under Farm tenancy or
leasehold in accordance with RA 1199, tenancy
exist whenever two persons agree on a joint
undertaking for agricultural production wherein
one party furnishes the land and the other is his
labor, and the produce thereof to be divided
between the landholder and the tenant in
proportion to their respective contributions.
The 1/5 of coconut harvest that you have paid for
two years will be their proportion to their
respective contribution of the work done, therefore
you no longer have to pay them for wages.
[38] QUESTION
My restaurant establishment was visited by a
DOLE labor law compliance officer last week, who
told me it was a compliance visit due to a
complaint filed by one of the waiters. I was served
a Notice of Results, finding violation of non-
payment of overtime pay, premium pay and
holiday pay for the past 2 years. I cannot
understand such violation because I have a payroll
for the past 2 years which clearly indicated that all
my waiters were paid these labor standards, as in
fact, I have proof both documentary and
testimonial that they actually received payment. I
would like to seek your urgent legal advice and
guidance on the complaint filed and how to
address it.
ANSWER
In view of the foregoing, the correct way to
address your query is to contest the Notice of
Inspection Results and present the documentary
proofs i.e. the payroll you mentioned that proves
you have paid correctly, copies of their
employment contracts, and to have your waiters
put their testimonies under oath in an affidavit
stating that you have made such payments for the
past two years as required by Section 6 of Rule X,
Book III, of the Labor Code.
Please be advised that we have to submit our
contest of the Notice of Inspection Results with all
our documentary proof of your compliance from
the date you have received such Notice at earliest
to the Regional Director of the DOLE or during the
hearing of the case at the latest.
[39] QUESTION
In my pharmaceutical company, two of my outside
salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses
and commission of 10% on all sales lodged a
complaint for payment of overtime pay,
contending that they regularly devote as much as
12 hours a day to sales efforts, which yield to
much higher revenue to the company compared to
their prescribed monthly quotas. Please advise.
[39] QUESTION
I am the lawful wife of the General Manager of a
meat processing company. My children and I have
not been provided with monthly support by my
husband for the past two months. I am planning
to write the President of my husband's company to
request him to deduct from my husband's monthly
salary the sum of Php50,000 for support. Can you
advise me if my idea is doable or not, and if I have
other legal options to make sure I get a monthly
support from my husband's salary? But I do not
want my husband to go to jail.
[40] QUESTION
I have been in the show business for so many
years. And my childhood friend works exclusively
for me for the past two years, doing all household
chores. During weekend, he accompanies me
when I have some performances. I pay him
a fixed weekly wage of Php2,000.00. Yesterday,
he asked me to let him spend a two day vacation
in his hometown, which I flatly denied. He later
sued me to pay him the cash equivalent of his
leave benefits. Please advise.
[41] QUESTION
I am the President of a call center in Cebu City
which caters to the needs of clients operating in
various time zones. As I am anticipating successive
non-working special holidays due to the
forthcoming APEC conferences which will be held
in Cebu, I am planning to operate for seven
straight days starting on Monday. After making an
advance announcement of my plan, I was
surprised to receive a protest letter from fifty of
my employees who are members of Iglesia Ni
Kristo, informing me of their strong reservation of
making them work on Saturday, their scheduled
rest days, which is also their day of worship. Do
these employees have legal basis for their protest?
Kindly advise.
[42] QUESTION
I am working for a fine dining restaurant as a
waiter. At the time I was hired, I was told by the
General Manager that my wages would be
deducted for the value of plates or glasses that I
may broke while in the performance of my work.
Although I did not give my conformity, I was
surprised that on two occasions when I carelessly
broke some plates (I admit I was then in a hurry
to go home), my weekly wage suffered a 10%
deduction based on the actual value of these
plates. I need your advice if I can validly recover
what was deducted from my wage.

ANSWER
Article 91 of the Labor Code states that the
management has a prerogative in fixing the rest
day for the employees. This is subject to an
exception which is “the employer must respect the
preference of employees as to their weekly rest
days when such preference is based on religious
grounds”.

Your employees who are from Iglesia ni Kristo

have a ground on this however there is also an
exception to the exception. This is when the
choice of the employees as to their rest day based
on religious grounds will inevitably result in serious
prejudice or obstruction to the operations or
undertaking and the employer cannot normally be
expected to resort to other remedial measures, the
employer in this case may schedule the weekly
rest day of their choice for at least two days in a
month.

Since you are expecting an important event (APEC

Conferences) you have a reason to require your
employees to work. The choice of your employees
would eventually cause some problems for your
business so you can adjust the schedule for their
rest days. You can even find more support under
Article 92(c) of the Labor Code where you can
compel employees to work on a rest day in the
event of abnormal pressure or work due to special
circumstances which in this case is the
forthcoming APEC.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
[1] QUESTION
After watching a movie at the Ayala mall with my grandchildren,
I saw a booth of Tele BPO Call Center Company recruiting call
center agents, preferably males, college graduate, with age
range from 18 years old to 25 years old. I took my chance and
got myself interviewed. After the interview, my application was,
however, flatly rejected as I studied from an unknown school
and was already 63 years old. However, the company explained
to me it is management prerogative to prescribe employment
qualifications. Kindly advise me what to do.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is
my legal opinion that the age qualification prescribed by the Tele
BPO Call Center Company is an invalid exercise of management
prerogative.
It is settled in our jurisprudence that management prerogative
is not absolute because it is regulated by law.
Under Section 5, paragraph 3 of Republic Act No. 10911 or
known as the “Anti-Age Discrimination in Employment Act
which was just passed recently, it is unlawful for an employer to
decline any employment application because of the individual s
age.
Under Section 6, paragraph (a) of the same law, there is an
exception to such prohibition when 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. However, it is my
opinion that such exception is not applicable to your case
because your age is not a bona fide occupational qualification
reasonably necessary in the normal operation of the Tele BPO
Call Center Company.
Moreover, the Tele BPO Call Center Company cannot also
discriminate you on the ground that you studied from an
unknown school because it is not bona fide occupational
qualification.
[2] QUESTION
I will be hiring full time teachers to teach in the College of
Commerce, starting this coming first semester of the school
year, 2017-18, as the school expects a surge in college enrollees.
However, I also need to make sure these qualified job applicants
are made to undergo probation, while at the same time fixing
their employment on a semestral basis. Can you please draft a
simple contract which abides with the minimum requirements of
law?
ANSWER:
Based on the existing labor laws and CHED Memorandum
Circular No. 40, s.2008 (Manual of Regulations for Private Higher
Education of 2008), here is a draft of a simple contract which
complies with such laws and regulations.
Probationary Employment Contract
Date:
EMPLOYEE:
Address:
1 UNIVERSITY OF SAN CARLOS
Dear Employee:
We are pleased to inform you that we are engaging your services
as a teacher for College of Commerce, Cruz School of Geniuses
effective this First semester for the School Year 2017-2018 with
a monthly rate of Eighteen Thousand Pesos (P 18,000). The
following are the conditions of your employment with this
Company:
Probationary Period
You shall be on probation for six (6) consecutive semesters
commencing on your first day of work with Cruz School of
Geniuses. During your probationary employment, you will be
working with us on a trial basis to determine your fitness for
regularization. Your conversion to permanent status shall be
primarily conditioned and dependent upon your satisfactory
service and performance of the work assigned to you and it is
within the exclusive discretion of Cruz School Geniuses to
determine whether or not such service is satisfactorily performed
and on your having successfully passed / complied with our
established standards for regularization which include, among
others, the following criteria: dependability, trustworthiness,
efficiency, initiative, attitude towards work/ the public/ the
school, its officers and co-employees, cooperation, client
response, judgment, punctuality, quality/ quantity of work,
educability, articulateness and professionalism;
Termination
The Cruz School of Geniuses likewise reserves its rights to
terminate or not renew your probationary employment, even
prior to the expiration of your probationary period or every after
semester, for any of the just and authorized causes provided by
existing law or for your having failed to satisfactorily meet and
comply with the above-mentioned standards, conditions and
requirements. In such event, you will be entitled to collect only
your salary up to the end of working hours of the last day of
your actual service;
Duties
You are required to comply with the all existing rules, regulations
and policies of Cruz School of Geniuses as well as those which
may hereafter be issued, including but not limited to those
governing order and discipline, honesty, safety and security,
work assignments and standard operating procedures, use of
school properties and access to matters of confidentiality, and
such other rules deemed necessary in the conduct of our
business;
Limitations
This probationary employment does not entitle you to the
benefits that is or may hereafter be granted only to regular and
permanent employees, except those which the Company as a
matter of policy and upon its discretion, extends to all employees
regardless of status and to those provided by law;
Confidentiality
You agree that all record and documents of the Cruz School of
Geniuses and all information pertaining to its business and/or its
affairs and that of its customers are absolutely confidential and
unauthorized disclosure or reproduction of the same will not be
made by you at any time during or after your employment. You
agree that any breach of confidentiality will constitute sufficient
ground for immediate termination of your employment for cause
and/or civil and criminal liability;
Resignation
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
In case you intend to resign from the Cruz School of Geniuses,
you are required to notify the Cruz School of Geniuses at least
thirty (30) days prior to the effectively of your resignation,
otherwise, failure on your part to do so will render you liable for
damages. However, it is within the sole discretion of the Cruz
School of Geniuses whether or not to accept such resignation
earlier than the expiration of said period.
If you agree with the above terms and conditions, please
indicate your conformity by signing on the space provided below
for this purpose.
Very truly yours,
Mr. Juan dela Cruz
President
Cruz School of Geniuses
Brgy. Banilad, Cebu City
I HEREBY CERTIFY that I have read and have fully understood
the foregoing terms and conditions of my employment with the
Agency and that I accept the same completely.
EMPLOYEE
[3] QUESTION
I am 21 years old, single, unemployed, without any work
experience, and was in third year high school level when I
stopped schooling due to the sudden demise of my parents. Last
March 1, 2016, I underwent a 10 day training with the DOLE to
develop my behavior and attitude to prepare me meet the daily
challenges of life, followed by a full three (3) month technical
training as a Skilled Welder with a TESDA accredited vocational
institute. Immediately after when the maritime school of one
local university opened up, I easily got an offer for another three
(3) month internship which I accepted and also successfully
completed. However when I later applied for a job with a known
shipping company in Cebu, I was offered a three (3) month
probationary employment as Ship Welder. Is this employment
offer lawful? Please advise.
ANSWER:
This year, we have a new law named "JobStart Philippines Act"
allowing youth like you to be a competent candidate to get hired
for jobs that are in the demand in the labor market without
needing to finish formal education.
Under the law, you are a qualified to be JobStart Trainee, one
who is (1) a Filipino citizen, (2) belonging to the age bracket of
18 to 24 years of age, and (3) have at least reached high school
level. As a qualified applicant, the training entitles you to
undergo the JobStart program wherein the Government will
facilitate methods for you to be fully employed.
The JobStart Training has three (3) phases, namely:
(a) JobStart Life Skills Training, wherein you are given a life skills
training conducted by PESOs with technical assistance from the
DOLE for a period of ten (10) days.
(b) JobStart Technical Training, this is the period of technical
training which will last for a period of up to three (3) months.
(c) Jobstart Internship, where you shall be an intern for a period
of not more than three (3) months or six hundred (600) hours.
2 UNIVERSITY OF SAN CARLOS
In your case, you have successfully passed all the three (3)
phases of the training.
Regarding your query on the offer for employment, if the
maritime school where you undertook internship program is a
participating employer of the JobStart Training, you could be
exempted to undergo the three (3) month probationary
employment should they have offered you employment. The
new law grants you this privilege.
Accordingly, the known shipping company who offered you a
three (3) month probationary employment as Ship Welder can
be considered a non-participant of the JobStart Program which
does not entitle you an exemption of the probationary phase.
The offer for employment with the shipping company, as a
prospective employer, gives them the authority to test your skills
and capabilities as a Ship Welder. In this probationary period of
three (3) months, your performance will be assessed whether
satisfactory or not. If performance is satisfactory, it is followed
by a regular employment, if not, the employment is terminated.
FOLLOW-UP QUESTION:
Do you mean to say the technical training and the internship
must be undertaken with the same company that offered me
employment?
FOLLOW-UP ANSWER:
Yes. To be exempted from the probationary period of
employment, you should complete your technical training and
internship within the training plan prepared by the same
participating employer.
This presupposes that the company or establishment is a
participating employer of the JobStart Program. However, there
are two scenarios in your query.
First, if the technical training is offered by the same company,
they have the option to skip the technical training and transition
you directly to internship stage. This internship stage shall not
be more than three (3) months or six hundred (600) hours.
Accordingly, should you be hired in the same establishment upon
completion of the program, you are no longer required to
undergo a probationary period.
Second, if the technical training is offered by the same company,
you undergo the technical training for a period of up to three (3)
months which may also be less than three (3) months depending
on the skills and competencies that the JobStart trainee must
achieve and as determined by the participating employer. Next,
if they offer you an internship, this shall be not more than three
(3) months or six hundred (600) hours. Then finally, should you
be hired in the same establishment upon completion of the
program, you are no longer required to undergo a probationary
period.
Take note that this process should be done by the same
company or establishment who is a participating employer of the
JobStart Program.
In your case, you took the technical training as a Skilled Welder
with a TESDA accredited vocational institute and internship from
a maritime school, separately. Accordingly, the latest offer you
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
had was from a separate shipping company who has the right to
employ you on a three (3) month probationary period.
[4] QUESTION
I have been operating my restaurant business for the past 20
years. As I am getting already old, I have decided to spend the
rest of my life traveling abroad. Hence, last November 1, 2016,
I served notice to all my restaurant managers and employees
that effective upon receipt they will no longer be required to
report to work but will be paid their one month salary in advance,
and furthermore, that one month from the same notice, their
employment will be terminated as I will be closing my restaurant
for good. I also served a similar notice to the regional office of
the DOLE. Did I act in accordance with law? Please advise.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is
our legal opinion that your act is not in accordance with the law
particularly article 298 of the Labor Code with regard to the
payment of separation pay.
Under this article, you are obliged to give a separation pay to
your employees equivalent to at least 1 month pay or ½ month
pay for every year of service, whichever is higher, in case of
termination due to closure or cessation of operations of
establishment or undertaking not due to serious business losses
or financial reverses.
In your case, the closure of your establishment was not due to
serious business losses or financial reverses. Hence, you are
obliged to comply with the payment of separation pay.
With regard to the validity of the closure itself, it is our legal
opinion that such is in accordance with the law. Under DOLE
D.O. No. 147-15, S. 2015, Section 5.4 (d), the following must be
complied:
1. There must be a decision to close or cease operation of the
enterprise by the management;
2. The decision was made in good faith; and
3. There is no other option available to the employer except to
close or cease operations.
You have complied with all these requisites.
With regard to your act of not allowing your employees to work
after giving the notice of termination and giving them 1-month
advance salary, it is our legal opinion that it is not in violation of
the law. This is because such is favorable to the employees to
have ample time to look for new employment while enjoying the
advance salary.
Lastly, with regard to the procedure for termination, your act is
still in accordance with the law. DOLE D.O. No. 147-15, S. 2015,
Section 5.3 requires that there must be a service of a written
notice to the employees and the appropriate Regional Office of
the DOLE at least thirty days (30) before the effectivity of the
termination, specifying the ground or grounds for termination.
You have complied with this requirement as well.
[5] QUESTION
I am employed with a fast food delivery service as service and
delivery crew. In one of my trips, I figured in a vehicular accident
when my motorcycle was bumped by a truck from behind while
I was swerving to my left to make a U-turn. I knew it was my
3 UNIVERSITY OF SAN CARLOS
fault when I swerved to my left as I was in a hurry to make a u-
turn to avoid a heavy traffic. My employer talked to me and
offered me to either resign or face administrative investigation
for gross negligence. With a heavy heart, I tendered my
resignation which my employer graciously accepted
immediately.
I need your advice if I have any cause of action against my
employer for constructive dismissal.
ANSWER:
In the case of Vicente v. CA (2007), the Supreme Court held that
in order for a resignation to be involuntary so as to amount
constructive dismissal, the resignation must be the product of
coercion or intimidation. It is incumbent upon the employee to
prove that the resignation was not voluntary but was actually a
case of constructive dismissal with clear, positive, and
convincing evidence.
Likewise, in the case of Gan v. Galderma Philippines, Inc. (2013),
the employee must be forced, threatened, intimidated or
dictated against his will to resign in order to constitute forced
resignation.
More importantly, in the case of St. Michael Academy v. NLRC
(1998), it was held that the requisites for intimidation to vitiate
one s consent are: (1) that the intimidation caused the consent
to be given; (2) that the threatened act be unjust or unlawful;
(3) that the threat be real or serious, there being evident
disproportion between the evil and the resistance which all men
can offer, leading to the choice of doing the act which is forced
on the person to do as the lesser evil; and (4) that it produces a
well-grounded fear from the fact that the person from whom it
comes has the necessary means or ability to inflict the
threatened injury to his person or property.
In your case, it is our legal opinion that there was no vitiation of
your consent in resigning. You were not subjected to coercion,
intimidation, force, threat or was dictated against your will. The
fact that your employer had offered you to either resign or face
administrative investigation for gross negligence does not
amount to threat or intimidation. This is because subjecting you
to an administrative investigation is a right of the employer. It
was not an unjust or unlawful act.
[6] QUESTION
A Union succeeds in negotiating with the employer a CBA which
provides for substantial benefits to the employees in the
bargaining unit. Among the employees are members of a
religious organization which prohibits their members from giving
contributions to union's or any other organization. Since they
have accepted the benefits of the CBA, the union demands that
the employer deduct from the wages of the members of the
religious organization the appropriate agency fees. The company
however refused because the CBA did not provide for payment
of agency fees. Did the company act correctly? Please advise.
ANSWER:
Based on applicable laws and jurisprudence in our country, it is
our legal opinion that company did not act correctly in refusing
to deduct the appropriate agency fees from the employees.
When an employee, who is a non-union member, accepts
benefits from the Collective Bargaining Agreement, confers upon
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
the union who negotiated the CBA the right to collect reasonable
agency fees as provided by Article 248(e) of the Labor Code as
originally numbered and Rule XXV, Section 4 of the
Implementing Rules and Regulations of the Labor code.
Notwithstanding the absence of any provision in the CBA
regarding the payment of agency fees, it is the duty of the
employer to deduct or check of this sum from the non-union
member s wages. This is illustrated in the case of Holy Cross of
Davao College, Inc. vs. Joaquin, 263 SCRA 358. In that case, the
Supreme court held that the agency fee is quasi-contractual in
nature. The employee cannot unjustly enrich themselves by
benefitting from the CBA without paying the necessary agency
fee.
The employees cannot hide from payment of agency fees by
using the Freedom of Religion. In the first place, they were never
forced to associate themselves with the union nor there is no
law that compels non-union members to accept the benefits of
the CBA which gave rise to the obligation to pay the
corresponding fees.
[7] QUESTION
One month after the expiration of the five year term of the
existing CBA, some Union members of the certified bargaining
unit quit their membership and join the minority Union existing
in the same bargaining unit. As the CBA contained a
maintenance of membership clause, the bargaining agent
sought the dismissal of the said members. Would this action be
legally appropriate? Please advise.
ANSWER:
The bargaining agent may legally seek for the dismissal of the
union members who quit their membership and subsequently
joined to the minority Union.
The Labor Code recognizes a Union Security Clause as a valid
stipulation of a bargaining agent. The type of Union Security
involved in the case is the Maintenance of Membership Clause
which provides that no employee is compelled to join the union
but all present or future members must as a condition of
employment remain in good standing in the union.
Although the Collective Bargaining Agreement (CBA) had already
expired when the union members quit their membership to the
bargaining agent, their dismissal may still be validly sought. The
law mandates an Automatic Renewal Clause deemed
incorporated in all CBAs pending the renewal of a CBA. In such
case, the parties are bound to keep the status quo and to treat
the terms and conditions embodied therein with full force and
effect during the sixty (60) day freedom period and/or until a
new agreement is negotiated and finally concluded or reached
by the parties.
In the case at hand, the Union Security Clause must continue to
be in effect even after the expiration of the CBA. This is to
prevent a gap during an absence of a governing agreement from
the time the old agreement expired to the time of a new
agreement is concluded.
Hence, all members of a bargaining agent are not allowed to quit
or terminate their membership. Any member of the bargaining
agent who resigns or is expelled may be recommended by the
bargaining agent to the employer for a termination of his
employment.
4 UNIVERSITY OF SAN CARLOS
An enforcement of a Union Security Clause is a valid cause for
termination. It constitutes a dismissal from employment due to
the enforcement of the Collective Bargaining Agreement.
Dismissal effected by the employer pursuant to the Labor
Union s demand in accordance with the Union Security
agreement does not constitute unfair labor practice.
Nonetheless, in order for the employer to avoid incurring any
liability from acceding to the recommendation of the Labor
Union, we advise that before these employees be terminated by
invoking the Maintenance of Membership clause, the following
requisites must be present:
1. The union security clause is applicable;
2. The bargaining union is requesting for the termination of
employment due to enforcement of the union security provision
in the CBA; and
3. There is sufficient evidence to support the union's decision to
expel the employee from the union.
Furthermore, the employer should afford due process to the said
employees by affording an independent and separate hearing.
[8] QUESTION
Walde Rank-and-file Union entered into a CBA with USC School
effective from January 1, 2005 to December 31, 2010. This CBA
was duly registered.
On February 25, 2010, the Walde Rank-and-file Union signed
another CBA with management effective from January 1, 2011
to December 31, 2016.
On November 15, 2010, Torregosa Rank-and-file Union, a
minority Union in the same bargaining unit filed a petition for
certification election.
If you were the Med-Arbiter, will you grant the petition?
ANSWER:
If we were the Med-Arbiter, we would grant the petition for
certification election filed by Torregosa Rank-and-File Union.
Article 268 of the Labor Code, as renumbered, governs
representation issues in an organized establishment. Under this
article, a petition for certification election may be filed by any
legitimate labor organization with the Bureau of Labor Relations,
in this case, with the Med-Arbiter, within the 60-day period
before the expiration of the CBA.
Moreover, under D.O. No. 43-03, Rule VIII, Section 14, the 60-
day period based on the original collective bargaining agreement
shall not be affected by the amendment, extension, or renewal
of the collective bargaining agreement. Further, under Section
25 of the same rule states that the representation case shall not
be adversely affected by a collective bargaining agreement
registered before or during the last 60 days of a subsisting
agreement or during the pendency of the representation case.
In this case, the 60-day freedom period to file is from November
2, 2010 to December 31, 2010 (the expiry of the original CBA).
Torregosa Rank-and-File Union filed its petition on November 15,
2010, thus, the said petition was filed well within the 60-day
freedom period.
The subsequent CBA to be effective on January 1, 2011 to
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
December 31, 2016 entered by Walde Rank-and-File Union and
the Management is immaterial. Torregosa Rank-and-File Union's
petition for certification is not affected by a subsequent collective
bargaining agreement executed by Walde Rank-and-File Union
and the Management as provided under D.O. No. 43-03, Rule
VIII, Section 14 and 25 as stated above.
Therefore, the petition for certification election by Torregosa
Rank-and-File Union should be granted provided that they had
fully complied with all the requisites for a valid certification
election under Article 268 of the Labor Code, as renumbered,
and Rule VIII, Book V of the implementing rules notwithstanding
the fact of the alleged signing of a new CBA by Walde Rank-and-
File Union and the Management.
[9] QUESTION
After several weeks of bargaining negotiations, the certified
bargaining Union was constrained to accept a stipulation that in
exchange for a yearly wage increase, it would waive full payment
of overtime compensation and accept no more than 5%
premium for overtime work. If you were another legitimate labor
union existing in the same bargaining unit, what legal action may
you take against the certified bargaining Union for agreeing to
such a CBA stipulation.
ANSWER:
As held in the case of Benson Industries Employees Union v.
Benson Industries Inc., G.R. No. 200746, August 6, 2014, the
parties in a CBA, as in all contracts, may establish such
stipulations, clauses, terms and conditions as they may deem
convenient provided these are not contrary to law, morals, good
customs, public order or public policy.
In your case, the CBA entered by the certified bargaining union
is invalid because such is contrary to law, particularly the Labor
Code, for waiving full payment of overtime compensation and
accept no more than 5% premium for overtime work.
Pursuant to D.O. 40-F-03, dated October 30, 2008, a petition for
cancellation of registration of a union on the ground that the
certified bargaining union entered into a CBA which provides for
terms and conditions of employment below minimum standards
established by law, is no longer applicable. The said Department
Order of the DOLE now limits the grounds for cancellation of
registration to three (3).
Hence, the other legitimate labor union cannot file a petition for
cancellation of registration of the certified bargaining union.
However, it is my legal opinion that the remedy of the other
legitimate labor union is to file an inter-union dispute complaint
pursuant to D.O. No. 40-03 before the Regional Office that
issued its certificate of registration and question the
appropriateness of the act of the certified bargaining union as
well as the validity of the CBA as being contrary to law and
prejudicial to their interests. Aside of its apparent illegality, it is
also worthy to take note of the fact that the certified bargaining
union was just “constrained to accept such stipulation.
[10] QUESTION
Our company is engaged in the assembly and distribution of
motor spare parts for vehicles. Sometime in May of 2015, we
employed Juan as a production trainee under probation. As per
policy, the probationary period was from 3 months to a
maximum of 6 months. Juan was given orientation on May 15,
5 UNIVERSITY OF SAN CARLOS
2015 about company's history, philosophy including company
standards for regularization. Juan started working on May 27,
2015, and was assigned at the machine parts conveyors. After
an evaluation, management found the performance of Juan
unsatisfactory. Hence, the company served Juan on November
26, 2015 a notice of termination dated November 25, 2015
effective on said date of service, since he failed to meet the
required company standards for regularization. Did our company
act in accordance with law, and if not, what is our liability, if
any?
ANSWER:
To shed light regarding your concern, your company did not act
in accordance with the law. Juan, your production trainee, was
illegally dismissed since he started working in your company on
May 27, 2015, thus, by that time that you terminated him on
November 26, 2015, he no longer was a probationary employee
but was already a regular employee by operation of law since
Article 296 of the Labor Code provides that probationary
employees shall not exceed 6 months from the date the
employee started working and in computing the 6 month
probationary period, the Supreme Court explained in the case of
Mitsubishi Motors vs. Chrysler Phil. Labor Union, that it would be
180 days from the date the employee started to work.
Moreover, Article 294 of the Labor Code of the Philippines
provides that: in cases of regular employment, the employer
shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and to his backwages computed
from the time his compensation was withheld from him up to the
time of his actual reinstatement.
Gleaning from the abovementioned law, and as stated earlier,
Juan was illegally dismissed and is entitled to reinstatement
without loss of seniority rights and backwages.
FOLLOW-UP QUESTION:
Was there no just cause to terminate the employment? And the
award of backwages, until when will it be computed?
FOLLOW-UP ANSWER:
In clarifying your first question, there was no just cause in
terminating the employment of Juan. As enunciated by the
Supreme Court in the case of Mitsubishi Motors vs. Chrysler Phil.
Labor Union, “Under Article 282 of the Labor Code, an
unsatisfactory rating can be a just cause for dismissal only if it
amounts to gross and habitual neglect of duties. Gross
negligence has been defined to be the want or absence of even
slight care or diligence as to amount to a reckless disregard of
the safety of person or property. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid
them. It is a settled doctrine that the employer has the burden
of proving the lawfulness of his employee s dismissal. The
validity of the charge must be clearly established in a manner
consistent with due process.
In your case, there was no clear showing that there was gross
and habitual neglect of duties on the part of your employee. The
basis for which you terminated Juan s employment was his
alleged unsatisfactory rating for failure to meet the required
company standards for regularization, which he was informed of
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
only on November 26, 2015 when he was already considered as
a regular employee.
As to your query on the award of backwages, it shall be
computed from the time of Juan s dismissal up to the time of his
actual reinstatement, pursuant to Article 294 of the Labor Code.
[11] QUESTION
Our company is a beef cannery, where majority of our workers
are doing packing and casing up of beef meat which are
exported to China. We foresee a substantial reduction of volume
of orders from China beginning on January 1, 2016.
I need you to draft for our company the prescribed notices to
validly implement a suspension of operations, and furthermore,
to advise us on the step by step procedure. Kindly ensure I am
compliant with law and will not incur any liability.
ANSWER:
December 15, 2015
DOLE Regional Office
Cebu City
Dear Ma am/Sir,
This letter is in compliance of the mandatory 30-day prior notice,
as provided in the Amended Rules to implement the Labor Code,
before retrenching majority of our employees effective on
January 15, 2016.The retrenchment is due to a substantial
reduction of volume of orders from China beginning January 1,
2016. We are aware that we cannot temporarily retrench our
affected employees as of January 1, 2016, hence, the
suspension of operation will only commence on January 15,
2016. The said suspension of operation will not exceed 6
months.
Respectfully,
JMMarquez
President
Beefy Meat Company
December 15, 2015
Residence of Employee 1
Cebu City/ Mandaue City
Dear Employee 1,
We would like to inform you that we are suspending some of our
operations due to substantial reduction of volume of orders from
China. Due to the suspension, it is inevitable that some of the
employees would be temporarily be retrenched. Unfortunately,
you are one of those employees. The suspension of operation
will be effective on January 15, 2015.
We will immediately inform you if the operations have already
resumed.
Respectfully,
JMMarquez
President
Beefy Meat Company
[12] QUESTION
6 UNIVERSITY OF SAN CARLOS
I am employed as an agent in a call center company in Cebu
City, whose principal client is AT&T, a telecommunication
company based in U.S. AT&T pays our company depending on
the number of employees assigned to AT&T's account and the
volume of calls needed. I have been with the company for one
month already. As agent, I am required to be physically available
at the office in order to service the continuous inflow of customer
queries. I usually start my shift by logging on to my computer
and wait for the customers to call in with their queries.
Yesterday, I was notified by my Team Leader that the volume of
calls required by AT&T is expected to decrease due to the
Christmas holidays in the U.S. and thus, I am one of those whose
employment will be terminated by our Company effective
December 24, 2015.
I need your legal advice on what are my rights in case I am
served a notice of dismissal anytime from now.
ANSWER:
As a project employee, you enjoy security of tenure during the
duration of the project. This means that you may not be lawfully
terminated for no just or authorized causes.
To clarify, basing on the facts of your case, your dismissal does
not fall under any of the Just and Authorized causes provided by
the Labor Code.
Under the Labor Code, Just Causes for termination of employment
are as follows:
1. Serious misconduct
2. Willful disobedience
3. Gross and habitual neglect of duty
4. Fraud or breach of trust
5. Commission of crime or offense against employer, his family, or
representative
6. Other analogous causes
Furthermore, Authorized Causes for termination of employment
under the Labor Code are as follows:
1. Installation of labor-saving device
2. Redundancy
3. Retrenchment to prevent losses
4. Closure and cessation of business
5. Disease / illness
Terminating your employment within the duration of the project
without a just or authorized cause tantamount to an illegal
dismissal. If you will be served with a notice of dismissal anytime
from now, your rights are as follows:
1. Reinstatement without loss of seniority rights
2. In lieu of reinstatement, you may also be given separation pay
of one month pay for every one year of service
3. Back wages from time compensation was withheld up to the
time of reinstatement
4. Damages for non-compliance of the company of due process in
relation to your dismissal
Based on the facts of your case, there has been a violation of due
process. Procedurally, if the dismissal is based on a just cause, the
employer must give the employee two written notices and a
hearing or opportunity to be heard before terminating
employment; that is, a notice specifying the grounds for which
dismissal is sought and, after hearing or opportunity to be heard,
a notice of the decision to dismiss. If the dismissal is based on
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
authorized causes, the employer must give the employee and the
DOLE written notices 30 days prior to the effect of resignation.
The grounds must be specified in the notice of dismissal; and if it
is for Just or Authorized causes, the above mentioned procedure
must be followed. Since these were not complied with by the
company, a violation of due process has been committed and you
may seek damages for such.
[13] QUESTION
I am the President of a call center in Cebu City which caters to
the needs of clients operating in various time zones. All our
clients are located in USA, which observes federally mandated
holidays that are different from those in the Philippines. It is
customary within the BPO industry to follow the holidays of the
specific country in which the service recipient is domiciled. All
my agents have been employed for more than one year.
We received notice yesterday from our clients that for two (2)
weeks effective on Monday, December 22, they will be
temporarily closed and would not need our services. I need legal
advice and guidance on what to do with my agents during the
two (2) weeks furlough.
ANSWER:
I apologize for the previous advice I gave you that would expose
your company to liability. I failed to take into account that
temporary lay-off or suspension of operations, which is in the
nature of retrenchment to prevent losses, is considered as a
measure of last resort. Before resorting to the drastic measure
of retrenchment, employers must first employ cost-cutting
measures to prevent possible losses due to causes beyond their
control. These cost-cutting measures are provided for under the
Guidelines on the Adoption of Flexible Work Arrangements
(DOLE Department Advisory No. 2, s. 2009). From the cost-
cutting measures enumerated in the guidelines, the one that is
applicable in your situation is placing your employees on forced
leave during the two-week period that your company would have
no clients. Forced leave refers to one where the employees are
required to go on leave for several days or week utilizing their
leave credits.
Further, it is a requirement that the enumerated cost-cutting
measures must only be temporary in nature and the employer
needs to prove that it is expected to incur losses if such
measures are not resorted to. In your case, the forced leaved
would only be employed to in a period of two-weeks, so it
complies with the requirement of temporary nature. Moreover,
if you do not resort to this cost-cutting measure during the two-
week period where your company would have no clients, it is
possible that you would incur losses.
But before placing your employees on forced leave, you should
first notify the Department of Labor and Employment (DOLE)
through its Regional Office in Cebu City of the adoption of such
cost-cutting measure, using the Report Form as provided by
DOLE.
[14] QUESTION
My company is engaged in mining operations. Sometime in May
of 2015, I was offered employment as Manager for Finance
under a six month period of probation. As a condition for my
employment, I was required to submit clearance from my
previous employer. I actually started working on July 1, 2015.
7 UNIVERSITY OF SAN CARLOS
Last December 25, I was served a notice that effective close of
office hours on January 10, I was dismissed from my
employment for failure to qualify as a regular and permanent
employee as I did not submit the previous employment
clearance.
Do I have any valid cause of action against my company for
illegal dismissal?
ANSWER:
Allow me to clarify my previous advice. As I go through again
the details of your case, in my humble opinion sir, the employee
was still a probationary at the time he was dismissed.
To clarify, your employee started working on July 1, 2015 and
the notice of dismissal was served on December 25 of the same
year. And so if we apply the Civil Code in counting the
probationary period, the six months probationary consists of one
hundred eighty (180) days and in computing the period, the first
day should be excluded and the last day should be included.
Thus, the one hundred eighty (180) days commenced on July 2,
2015 and ended on December 27, 2015. Therefore, at the time
the notice of dismissal was served on December 25, 2015, the
employee was still then a probationary employee under the
Labor Code.
And the Labor Code provides that probationary employees may
only be terminated from just cause, authorized cause or failure
to meet the standards. And in failure of an employee to meet
the standards of the employer in the case of probationary
employment, it shall be sufficient that a written notice of
termination is served to the employee within a reasonable time
from the effective date of termination.
Therefore sir, you do not have any cause of action against your
company. The termination made by them was valid and at the
same time, the notice served was in accordance with the law.
[15] QUESTION
Our company is engaged in a fast food restaurant business. We
offer fast food delivery service and employ service and delivery
crew. In one of his trips, Miguel a delivery crew, figured in a
vehicular accident when his motorcycle bumped a young girl
who was crossing the street causing bodily injury. Because of
the accident, Miguel was charged criminally for reckless
imprudence resulting to physical injuries. He was detained in jail.
After eight months, Miguel came to the office to report to work,
and submitted to us a judgment of acquittal rendered by the
Municipal Trial Court in his criminal case. Can we request your
legal advice on how we will deal with Miguel administratively?
ANSWER:
To clarify your question on how Miguel should be
administratively dealt with upon his return to work, you may
initiate disciplinary action against him for his gross negligence
and inefficiency in the performance of his duties. The charge
against him can be attributed to his reckless driving resulting to
injury to a pedestrian. As delivery crew, it is in the nature of his
job that he exercises utmost diligence and care in performing his
duty to deliver the goods to its destination safely. However,
considering that this is his first offense and the facts of the case
does not state that he has previously violated any of the
company rules and regulations which is detrimental to the
interest of your company, the disciplinary action may not
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
necessarily be dismissal, but may either be in the form of a
warning, reprimand, or suspension, depending on what penalty
is prescribed for such offense under your company rules and
regulations. Such penalty is for the purpose of disciplining Miguel
so that he will exercise the diligence required of him and he will
be more careful the next time he performs his duties as delivery
crew.
Moreover, before imposing such disciplinary action, Miguel
should still be afforded due process as required by law, wherein
he shall be allowed to show cause why no disciplinary action
shall be meted against him for his wrongful conduct.
[16] QUESTION
Reaching a deadlock in the collective bargaining with
management, the Union filed a notice of strike on July 1, 2015.
In a meeting on July 5, 2015, the Union membership
overwhelmingly voted to declare a strike. The Union furnished
the NCMB the results of the strike vote on July 7, 2015. On July
22, 2015, the Union went on strike.
What action may be taken by management on the Union's strike
as there was no vote taken yet when the Union filed the notice
of strike?
ANSWER:
Let me clarify first: actually, under the law, the taking of votes
does not precede the filing of notice to strike, the law requires
that a filing of notice to strike be first made and the voting would
come subsequent to that, specifically after the cooling off period.
In your case, gleaning from the stated facts, it would seem that
although the strike was based on a legal ground, the Union failed
to comply with the procedural requirements provided for under
Art. 277 of the Labor Code. The requirements for a legal strike
are as follows: filing of notice of strike, observance of the
cooling-off period, taking of strike vote, and observance of the
seven-day strike-vote-report period.
For failure to comply with the procedural requirements, the
strike is deemed illegal, thereby the management may file the
proper petition to the appropriate Arbitration Branch of the NLRC
to seek a declaration of the illegality of the strike of lockout
subject to the provision of Article 263(g). Once declared illegal,
the management may be authorized to terminate the
employment of union officials who knowingly participated in the
illegal strike and any worker or union officer who knowingly
participated in the commission of illegal acts during the strike.
[17] QUESTION
While in the course of negotiations for a collective bargaining
agreement, the employer refuses a Union demand for a closed-
shop stipulation. Can the Union charged management with
unfair labor practice? If not, what legal action may it take on the
matter? Please advise.
ANSWER:
The general rule is that employees are free to join or not to join
an association. Therefore, they have the freedom of association
and the negative freedom of association which is the right not
to join an organization. However, this right is not absolute since
our law allows an agreement between employer and union to
8 UNIVERSITY OF SAN CARLOS
require membership in a union for purpose of continued
employment.
In this case, the union may declare a bargaining deadlock for
failure to resolve the issue and they may refer this to a
conciliator or a voluntary arbitrator to be able to continue the
bargaining and put each parties back to the negotiating table
and help them craft a win-win solution.
I hope that I was able to help in clarifying your concern. Should
you have further queries, please don't hesitate to contact me.
[18] QUESTION
A CBA was concluded between Union "A" and management. This
CBA was not however registered with the BLR/DOLE. Aware of
his deficiency, Union "B", the minority Union filed a petition for
certification election, which was granted by the Med-Arbiter. In
the ensuing election, Union "B" won, and was certified as the
sole and exclusive bargaining agent. However, when Union "B"
demanded from management for the negotiation of a new CBA,
the latter refused because of the existing CBA it had concluded
with Union "A".
Did management act legally? Please advise.
ANSWER:
As regards to your question:
Yes, the management acted legally.
The Labor Code of the Philippines provides that a Collective
Bargaining Agreement must be registered with the Bureau of
Labor Relations pursuant to Article 231, as follows:
"Art. 231. Registry of unions and file of collective agreements.
xx
"It shall also maintain a file of all collective agreements and other
related agreements and records of settlements of labor disputes,
and copies of all orders and decisions of voluntary arbitrators.
The file shall be open and accessible to interested parties under
conditions prescribed by the Minister of Labor and Employment,
provided that no specific information submitted in confidence
shall be disclosed unless authorized by the Minister, or when it
is at issue in any judicial litigation or when public interest or
national security so requires.
"Parties shall submit copies of their collective agreement to the
Bureau through the regional offices. Such agreements shall be
accompanied with a verified proof of ratification by the majority
of all the workers in the bargaining unit.
Xxx
Moreover, it is also provided by the Labor Code that the effect
of said registration is that no certification election issue shall be
entertained by the employer, as follows:
Art. 257
xxx
No certification election issue shall be entertained if a collective
agreement which has been submitted in accordance with Article
231 of this Code exists between the employer and a legitimate
labor organization except within sixty (60) days prior to the
expiration of the life of such collective agreement."
However, in the instant case, the CBA concluded between Union
A and management was not registered with the BLR/DOLE, thus,
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
contract bar rule does not apply, meaning, the certification
election filed by Union B and subsequently granted by the Med-
Arbiter was valid. Having been certified as the sole and exclusive
bargaining agent, the law directs that Union B must be the one
to enter into a collective bargaining agreement with the
Company, pursuant to Article 263 of the Labor Code. It is a duty
of the employer and even refusal to do so would constitute unfair
labor practice. This right to bargain collectively only belongs to
certified bargaining unit which in this case is Union B.
However, nevertheless, the existing CBA agreement made by
Union A and The Company cannot be assailed and must be
respected until its expiration. This is pursuant to the
Substitutionary Doctrine which provides that "employees cannot
revoke the validly executed collective bargaining contract with
their employer by the simple expedient of changing their
bargaining agent. The new agent must respect the contract. The
employees, thru their new bargaining agent, cannot renege on
the collective bargaining contract, except to negotiate with
management for the shortening thereof."
[19] QUESTION
Our company is engaged in deep sea fishing, and we employed
Juan for the past two (2) years to unload the fish catch from our
vessels into third parties refrigerated vans for delivery to various
public markets. His work was however intermittent, depending
on the arrival of our fishing vessels. There were times when Juan
would work on vessels belonging to other fishing companies.
Last quarter of this year, we notified Juan of the cessation of his
employment with us as it was the low season in fish catching.
Did our company act in accordance with law?
ANSWER:
Based on the facts you provided, it is our opinion that the act of
notifying Mr. Juan of the cessation of his employment with your
company is not in accordance with the law.
Mr. Juan is a regular employee. Though his work is intermittent,
he cannot be considered as a seasonal employee. According to
jurisprudence, the activity of catching fish is a continuous
process and could hardly be considered as seasonal in nature.
Furthermore, he has worked with you for two years already,
continuous or broken, making him a regular employee.
Since he is a regular employee, he cannot be terminated without
just or authorized cause. Low season in fish catching is not one
of the just or authorized causes enumerated in the Labor Code.
[20] QUESTION
After several sessions, the company and the certified bargaining
Union's respective negotiating panels entered into a deadlock as
regards the economic provisions of the CBA.
During their lunch break, the members of the Union started to
picket the ingress to and egress from the company's premises,
which blocked the office of another company which is beside the
premises.
If you were the counsel of the other company, what is your
remedy against the Union?
ANSWER:
9 UNIVERSITY OF SAN CARLOS
The remedy available to you is to file for injunction. Third parties
cannot be disrupted by a labor dispute of another company,
foreign to the interest of your own, and they have a right to file
for injunction.
While peaceful picketing is entitled to protection as an exercise
of free speech, the courts are empowered to confine or localize
the sphere of communications or the demonstration to the
parties to the labor dispute. The court may insulate
establishments or persons with no industrial connection or
having interest totally foreign to the context of the dispute.
Thus, the right may be regulated at the instance of third persons
or innocent bystanders if it appears that the inevitable result of
it is to create an impression that a labor dispute with which they
have no connection or interest exists between them and the
picketing union or constitute an invasion of their rights.
It was discussed in the case of Liwayway Publications, Inc. v.
Permanent Concrete Workers Union, that picketing labor union
has no right to prevent employees of another company from
getting in and out of its rented premises, otherwise, it will be
held liable for damages for its acts against an innocent by-
stander.
In the case of MSF Tire and Rubber, Inc., vs CA., it was discussed
that, an "innocent bystander," who seeks to enjoin a labor strike,
must satisfy the court that aside from the grounds specified in
Rule 58 of the Rules of Court, it is entirely different from, without
any connection whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context thereof.
Considering that there are two companies affected by the act of
picketing by the members of the Unions, and there s no
connection as to the relation of the two companies affected by
the picketing of the member of the Unions, the proper remedy
left to the prejudiced innocent bystanders is to file for injunction.
[21] QUESTION
After several weeks of bargaining negotiations, the certified
bargaining Union was constrained to accept a stipulation that in
exchange for a yearly wage increase, it would waive full payment
of overtime compensation and accept no more than 5%
premium for overtime work.
If you were a member of the bargaining unit, can you assail the
legality of the CBA stipulation which is clearly illegal,
unconscionable and grossly disadvantageous to the members of
the bargaining unit? If yes, how?
ANSWER:
Yes, as a member of the bargaining unit, you can assail the legality
of the CBA.
First of all, it is important to take note that according to the Labor
Code, one of the labor standard benefits is the payment of
overtime pay. This means that every employee is entitled to
payment of overtime pay. According to the law, “Work may be
performed beyond eight (8) hours a day provided that the
employee is paid for the overtime work an additional
compensation equivalent to his regular wage plus at least 25%
thereof. Work performed beyond eight hours on a holiday or rest
day shall be paid an additional compensation equivalent to the rate
of the first eight hours on a holiday or rest day plus at least 30%
thereof. According the case of Patricia Halaguea et.al. vs. Phil.
Airlines Inc. G.R. 172013, "if the provisions of the CBA is contrary
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
to law, public morals or public policy, such provisions may very
well be voided."
This means that the stipulation of the CBA, which the certified
bargaining union was constrained to accept, is in violation of the
Labor Code.
To assail its legality as a member of the bargaining unit, your
signature is needed for its enforcement. And since the stipulation
is illegal, you can opt not to sign the CBA for ratification purposes.
If majority of the members also assailed the said stipulation, and
withheld their signatures, then the CBA cannot be enforced.
You may also raise your concern to the RTC because of the
unconstitutionality of the provision. According to the case of
Patricia Halaguea et.al. vs. Phil. Airlines Inc. G.R. 172013, “the
RTC has power to decide issues of constitutionality or legality of
the CBA. As the issue involved is constitutional in character, the
labor arbiter or the NLRC has no jurisdiction over the case.
[22] QUESTION
A newly formed labor Union which was certified to represent the
majority of the rank-and-file workers of a BPO company presented
a list of demands to the management for collective bargaining
negotiations. The company declined to talk to the Union leaders.
The Union felt offended and during their lunch break, march to
and from the company premises, wearing black arm bands.
What action can you advise management to stop the Union from
these concerted activities?
ANSWER:
First of all, it is important to take note that the Constitution
guarantees the right of workers to peaceful concerted activities,
including the right to strike in accordance with law.
Strike, as defined by the Labor Code, means any temporary
stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute. In your case, the employees
performed such concerted activities during their lunch break. This
means that no stoppage of work occurred. Therefore, the actions
of the employees did not constitute a strike. Their actions were in
exercise of their right to peaceful concerted activities; as well as
an exercise of their freedom of speech.
As supported by Jurisprudence, in the case of Elizabeth C. Bascon
vs. Honorable Court of Appeals, G.R. 144899, “The court of
appeals found that petitioner s actual participation in the illegal
strike was limited to wearing armbands and putting up placards.
There was no finding that the armbands or the placards contained
offensive words or symbols. Thus, neither such wearing of
armbands nor said of putting up of placards can be construed as
an illegal act. In fact, per se, they are within the mantle of
constitutional protection under freedom of speech.
As your good counsel, it is my advice to talk with and listen to the
demands of the Union. It is highly recommendable for the
management to negotiate the matters written in their proposed
collective bargaining agreement of the Union. According to Article
259 of the Labor Code, it is an unfair labor practice of an employer
to violate the duty to bargain collectively as prescribed by the
Code. The terms and conditions of the collective bargaining
agreement must be negotiated by both parties to avoid further
damage before the Union can file a case of Unfair Labor Practice
against the management.
10 UNIVERSITY OF SAN CARLOS
[23] QUESTION
I am employed with a fast food delivery service as service and
delivery crew. Last week, I decided to tender my resignation
effective immediately when my request for parental leave was not
acted upon by my employer in spite of my lawful entitlement
thereto. My employer however refused to accept my resignation
since I failed to comply with the one month notice period. I was
even served by my employer a notice to report to work until full
compliance with the one month notice period. I would like your
legal advice on whether my employer is acting in accordance with
law as I need to report to work to my new employer this week.
ANSWER:
Yes, your employer acted in accordance with the law when he
refused to accept your resignation before the lapse of one
month.
Under the Labor Code, an employee can terminate the
employer-employee relationship by serving a written notice on
the employer at least one month in advance. In your case you
tendered your resignation effective immediately, which is a clear
violation of the Labor Code and could make you liable for
damages.
There is an exception to this one-month notice rule and that is
termination by the employee for just cause which include:
serious insult by the employer or his representative on the honor
and person of the employee, inhuman and unbearable treatment
accorded the employee by the employer or his representative,
commission of a crime or offense by the employer or his
representative against the person of the employee or any of the
immediate members of his family and other analogous causes to
any of the foregoing. However in your case, your employer's
failure to allow your parental leave does not constitute any of
the above exceptions which would have entitled you to severe
your employment without just cause. Therefore, your employer
acted in accordance with the law when he refused, for the time
being, to accept your resignation as it was tendered without
notice.
[24] QUESTION
Our company is engaged in a fast food restaurant business. We
offer fast food delivery service and employ service and delivery
crew. As it is critical to the nature of our business that our workers
are free from drug use or abuse, we adopted a policy, which
requires our workers to undergo random drug tests. Two of our
crew objected to the policy, contending that it would violate their
right against self-incrimination which is protected by the
Constitution.
If these crew were to question the policy, which has jurisdiction,
and why? And finally, is there legal basis for the worker's claim?
Please advise
ANSWER:
First of all I would like to apologize for any confusion i have caused
in answering your queries. I would like to retract my answer to
your initial question with regards to who has jurisdiction supposing
the crew members would question the company policy of a
random drug test, stating that it is a violation of their
Constitutional right against self-incrimination.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
Taking into consideration the facts of the case as well as
conducting further research, if the crew members were to
question the constitutionality of their company policy, as it
infringes their right to self incrimination which is a right granted
by the Constitution, the power to interpret such issue is lodged
under the jurisdiction of the regular courts.
Citing the case of Halagueña et. al v. PAL where the primary issue
was whether provision of compulsory retirement in their CBA
unconstitutional and unlawful, which allegedly discriminates
against female flight attendants. The aggrieved party challenged
the constitutionality of the said provision. It was decided by the
Supreme Court that the subject of litigation is incapable of
pecuniary estimation, exclusively cognizable by the RTC. Being an
ordinary civil action, the same is beyond the jurisdiction of labor
tribunals.
It was also stated in the same case that the said issue cannot be
resolved solely by applying the Labor Code. Rather, it requires the
application of the Constitution, labor statutes, law on contracts
and the Convention on the Elimination of All Forms of
Discrimination Against Women, and the power to apply and
interpret the constitution and CEDAW is within the jurisdiction of
trial courts, a court of general jurisdiction.
In the case of Georg Grotjahn GMBH & Co. v. Isnani, this Court
held that not every dispute between an employer and employee
involves matters that only labor arbiters and the NLRC can resolve
in the exercise of their adjudicatory or quasi-judicial powers. The
jurisdiction of labor arbiters and the NLRC under Article 244of the
Labor Code is limited to disputes arising from an employer-
employee relationship which can only be resolved by reference to
the Labor Code, other labor statutes, or their collective bargaining
agreement.
Hence, where the principal relief sought is to be resolved not by
reference to the Labor Code or other labor relations statute or a
collective bargaining agreement but by the general civil law, the
jurisdiction over the dispute belongs to the regular courts of justice
and not to the labor arbiter and the NLRC. In such situations,
resolution of the dispute requires expertise, not in labor
management relations or in wage structures and other terms and
conditions of employment, but rather in the application of the
general civil law.
[25] QUESTION
I am a Marketing & Sales Liaison Manager of a beef cannery,
who was hired by the company for a fixed period of 5 months,
starting June 1, 2015 to handle and manage the shipment of
canned beef meat to China, in view of the high volume of
demand in that country for the period covered. On October 15,
2015, I was notified by the company that the latest shipment I
made were canceled by our client in China when they found the
canned beef meat damaged and thus, unable to pass quality
control. In that same notice, I was informed that my services
were no longer needed due to the expiration of my contract. I
need a legal advice if I have any cause of action, and relief
against my employer.
ANSWER:
With regard to your question, you are not a regular employee. A
fixed term employee is not a regular employee. The nature of a
fixed term employee's job is not always regular in nature. There
are however two qualifications that may consider a fixed term
11 UNIVERSITY OF SAN CARLOS
employee as a regular employee. With that, a fixed term employee
only becomes a regular in such a way that 1) the nature of his
work is necessary or desirable in the principal business of the
employer; and 2) he enjoys security of tenure during the limited
time of employment as before the end of agreed period. That is
the only way that makes a fixed term employee regular, but not a
permanent regular. And such regularity is only limited as to the
agreed period by the parties.
[26] QUESTION
I am one of the workers in a large sugar cane plantation
company, doing watering and weeding which is one of the
several phases of agricultural work. Every October until
December of the year for the past five years, I was made to
perform the same tasks, getting paid the minimum wage rate
for agricultural workers. For the rest of the months of each of
those years, I was free to work for other farm owners. Since
October of this year, I have been waiting to be called to work.
Its already December but no work is forthcoming. I need to
consult you what remedy do I have, if any, against the sugar
cane plantation company. Please advise.
ANSWER:
We are writing in reply to your inquiry regarding the status of your
work at the sugar cane plantation company.
First of all, you are classified as a seasonal employee. Seasonal
employment is one where work or service to be performed is
seasonal in nature and the employment is for the duration of the
season. The following are what you need to know regarding a
seasonal undertaking:
1. It is dependent on climatic or natural causes – which means its
operations must be limited to a regular, annual, or recurring part
or parts of each year and regularly closes during the remainder of
the year due to climatic or other natural causes;
2. The activity must be agricultural.
In your case, you have been employed from October to December
for the past five yours, performing agricultural work namely
watering and weeding. These facts make you a seasonal
employee.
Since you have been rehired continuously without interval season
after season for the past five years, you are considered as a
regular seasonal worker. You enjoy security of tenure within the
duration of the season. This means that the employer must
continue to rehire you season after season; and cannot terminate
you without just cause as provided in the Labor Code of the
Philippines.
Since you enjoy security of tenure within the duration of the
season, you may demand for reinstatement so as to put you back
to your previous position in the sugar cane plantation. Please take
note that you may only demand to be rehired for the duration of
the season because as we have emphasized, you are a seasonal
regular worker. In case your employer refuses to grant your
request for reinstatement, you may file an action for illegal
dismissal against the sugar cane plantation.
[27] QUESTION
The CBA negotiated by Walde rank-and-file Union provides for a
P50 daily wage increase for employees in the production and
maintenance department which constituted the bargaining unit.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
To avoid charges of discrimination, the company also granted
the same increase to employees in the administrative and sales
department. Walde Union now demands that agency fee be
deducted from the wages of the employees in the administrative
and sales department. Is such demand valid?
ANSWER:
The collection of agency fees from employees who are not union
members is recognized under the law, specifically under Art. 259
of the Labor Code. To quote the express provision under the law,
it states that:
“Employees of an appropriate bargaining unit who are not
members of the recognized collective bargaining agent may be
assessed a reasonable fee equivalent to the dues and other fees
paid by members of the recognized collective bargaining agent,
if such non-union members accept the benefits under the
collective bargaining agreement: Provided, that the individual
authorization required under Article 242, paragraph (o) of this
Code shall not apply to the non-members of the recognized
collective bargaining agent;
However, this provision should be read in light with Rule 25, Sec.
4 of the Implementing Rules and Regulations.
Rule XXV, Section 4. Check off from non members – Pursuant to
Article 248 (e) of the Code, the employer shall check off from
non-union members within a collective bargaining unit the same
reasonable fee equivalent to the dues and other fees normally
paid by union members without the need for individual check off
authorizations.
Based on the foregoing, the right to check-off from non-
members is only applicable when they belong to the same
bargaining unit. Since the administrative and sales department
employees do not belong to the same bargaining unit as that of
the production and maintenance department employees, the
collection of agency fees from the wages of employees in the
administrative and sales department is not valid.
[28] QUESTION
Our company is engaged in a fast food restaurant business. It
has an existing drug free workplace policy. Due to the serious
campaign of the Duterte administration against drugs, two of
our service crew were apprehended by the local police
authorities and detained for alleged use of prohibited drugs. As
these crew were unable to report to work, we served to them a
notice to explain why they should not be dismissed for
abandonment of work. As they did not explain, we then served
them a notice of termination. One (1) month after, the subject
crew reported to work as they were able to successfully secure
from the City Prosecutor the dismissal of the criminal cases
against them for insufficiency of evidence. Are we obliged to
admit them back to work? And if we do not, what is our liability
if any? Please advise.
ANSWER:
This is in reply to your query regarding the dismissal of your two
service crew due to their abandonment of their work due to their
alleged commission of a crime involving drugs.
Firstly, we are afraid to say that the dismissal on the ground of
abandonment was illegal for there was really no abandonment.
12 UNIVERSITY OF SAN CARLOS
In the case of Agabon vs NLRC, the court provided the requisites
for abandonment which are:
1. Absence without justifiable or valid reason
2. A clear intention to sever the employer-employee relationship
manifested by their overt acts.
None of these requisites are present in your case. The absence
of the service crew is justifiable for they were detained against
their will for the alleged commission of a crime. Secondly there
really was no intention to sever the relationship because as can
be seen from their acts, they immediately returned to work after
they were released which is inconsistent with the intent to sever.
Hence the dismissal was illegal.
As there was no abandonment, and as the criminal case was
dismissed, you are obliged to admit them back to work.
As was ruled in the similar case of Asian Terminal vs NLRC,
where the employee was also detained but whose case was
dismissed because of insufficiency of evidence, the termination
of the two service crew was based on a false or non-existent
cause. His absences as a consequence thereof are not only
involuntary but also excusable. Hence like in the above cited
case, they are entitled to reinstatement and back wages.
You are required to reinstate the crew members as there was no
just cause in their dismissal. However should your relationship
become strained already because of this issue, you may opt not
to readmit them but you will be liable for separation pay of 1
month salary or 1 month for every year of service whichever is
higher and full back wages.
Hope this answers your concerns.
FOLLOW-UP QUESTION:
If I admit them back, am I liable for illegal dismissal?
FOLLOW-UP ANSWER:
From the moment that the employees were served with the
notice of termination based on the subsequently declared non-
existent cause, you were already liable for illegal dismissal
because the employees were dismissed without just cause. This
liability for illegal dismissal is the reason why the employees are
entitled to reinstatement and full back wages from the time he
was prevented from continuing with his employment.
FOLLOW-UP QUESTION:
You mean to say whether I admit them or not when they
reported to work, I am guilty of illegal dismissal, right? But do
you expect me to wait for them when they could get themselves
out of jail? Does this not involve dismissal for a false or inexistent
cause?
FOLLOW-UP ANSWER:
Yes sir, we are sorry for the confusion in the terms we used in
our reply, but the dismissal in your case is a dismissal for a false
or inexistent cause. Jurisprudence has provided that this is not
the same as dismissal without just cause, but still it has been
declared as illegal.
As the dismissal was illegal you are liable for reinstatement and
back wages depending on the circumstances. If upon release
from detention and reporting for work again, you admitted them
back immediately then you are not liable for back wages and the
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
reinstatement is enough because the employees are not entitled
to back wages during the period of their detention. If you initially
refused to admit them back to work, then you are liable for
reinstatement and back wages counted from the time of such
refusal until they are reinstated.
However, during the time of detention, the business should not
be prejudiced to suffer losses because of the absence and
detention of the employees regardless of their guilt. Hence if
upon release of the employees, replacement or substitute
employees have already been hired during their detention, the
returning employees cannot compel you to reinstate them to
their original positions, but only to a substantially equivalent
position.
[29] QUESTION
Our company is engaged in the assembly and distribution of
motor spare parts for vehicles. Sometime on May 1, 2016, our
company offered Juan employment as a production trainee but
under a two (2) month period of probation, to start on June 1,
2016, which was the same date Juan actually started working.
Three (3) days after, Juan was made to undergo a one-on-one
orientation about company's history, philosophy including
company standards for regularization.
Juan's performance was first evaluated on July 1, 2016 where it
was discovered that Juan falsified his employment application by
falsely representing he was a college graduate when in fact he
was not. On the same date, the company served Juan a notice
of preventive suspension for 30 days without pay. On July 6,
2016, the company served Juan a notice to explain, to which
Juan immediately responded on the same date by simply flatly
denying the charges. A formal hearing was also held on August
1, 2016 which was attended also by Juan represented by
counsel. Before the close of office hours on August 1, 2016, the
company served Juan with a notice of termination for failure of
Juan to meet the prescribed company standards for
regularization. The notice was made effective close of office
hours on August 5, 2016.
Juan contested his dismissal by raising issues on the following:
a) validity of his preventive suspension; b) validity of his
dismissal; and c) violation of his statutory right to due process.
Kindly advise us.
ANSWER:
a) validity of his preventive suspension;
The preventive suspension was not valid. In the case at hand,
the preventive suspension preceded the service of the notice to
explain to the employee.
The notice to explain must be served first or simultaneously with
the notice of preventive suspension. The rationale under Policy
Instructions No. 10 where the Sec. of Labor and Employment
explained the rationale for the imposition of preventive
suspension is as follows:
“Before Presidential Decree No. 850, the employers placed
workers under preventive suspension flagrantly and
indiscriminately even if their presence in the work site did not
pose a serious danger to life or property of the employer or his
employees.
13 UNIVERSITY OF SAN CARLOS
Preventive suspension may be imposed on an errant employee
while he is undergoing an investigation for certain serious
offenses. It is justified only in cases where the employees
continued presence in the company premises during the
investigation poses a serious an imminent threat to the life or
property of the employer or of the employee s co-workers.
(Mandapat v. Add Force Personnel Services, Inc.) Applying the
principle of the case, preventive suspension can only be imposed
during the investigation, not afterwards.
b) validity of his dismissal;
The dismissal was valid. According to the Labor Code, the
following can be the grounds for validly dismissing probationary
employees:
First, for just and authorized causes as provided by law.
Second, for failure of the employee to qualify in accordance with
the standards of the employer made known to the former at the
time of the engagement.
Department Order 147-15 provides:
(g) Analogous Causes – To be a valid ground for termination,
the following must be present:
1. There must be an act of omission similar to those specified
just causes; and
2. The act or omission must be voluntary and/or willful on the
part of the employees.
No act or omission shall be considered analogous cause unless
expressly specified in the company rules and regulations or
policies.
The present case falls squarely under this. First, the act of
falsifying his employment qualification by falsely representing he
was a college graduate is an act analogous to fraud or willful
breach of duty.
To constitute as fraud, the following requisites must be met:
1. There must be an act, omission, or concealment;
2. It involves a breach of legal duty, trust or confidence justly
reposed;
3. It must be committed against the employer or his/her
representative; and
4. It must be in connection with the employee s work.
Second, the act or omission must be voluntary and/or willful on
the part of the employees. Clearly, it was a willful act on his part
to falsify his employment qualification. It cannot be a mere act
of inadvertence who himself prepared such document. His mere
act of simply flatly denying the charges will not suffice since it is
mere self-serving. While the general rule is that the burden of
proving dismissal is upon the employer, the employer was able
to discharge this burden. The employee, on the other hand, had
every opportunity to controvert the same after the notice to
explain was given and during the hearing but he failed to do so.
The dismissal is valid as the employee was dismissed for a just
cause (for fraud and dishonesty), however, there was a violation
of the statutory due process for which the employer may be
liable to pay for damages.
c) violation of his statutory right to due process.
The act of dismissing a worker for failure to qualify when what
he did was fraud or dishonesty constitutes deprivation of
procedural due process.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
In Glaxo Wellcome vs. NEW-DFA (2005) citing BPI Credit
Corporation vs. NLRC (1994), the Supreme Court ruled that an
employee cannot be dismissed if the ground used in the notice
to explain is different from which was made as basis in the notice
to terminate. This is tantamount to procedural due process.
In the instant case, the notice to explain sent to the employee
is on the basis of his act of falsifying his employment application
by falsely representing he was a college graduate when in fact
he was not. This falls under fraud as a ground for dismissal. On
the other hand, the notice for termination was based on failure
of Juan to meet the prescribed company standards for
regularization which is another ground. Consequently, since the
ground used in the notice to explain is different from which was
made as basis in the notice to terminate, there is a violation of
procedural due process.
[30] QUESTION
I am the President of a call center in Cebu City which caters to
the needs of clients operating in various time zones. All our
clients are located in USA, which observe federally mandated
holidays that are different from those in the Philippines. It is
customary within the BPO industry to follow the holidays of the
specific country in which the service recipient is domiciled. All
my agents have been employed for more than one year. Today,
December 2, 2016, we got notice from our clients that for two
(2) weeks effective on Monday, December 5, 2016 they will be
temporarily closed and would not need our services. I need legal
advice and guidance on what to do with my agents during the
period in question.
ANSWER:
Considering the nature of the BPO industry, such “floating
status is not unusual since the availability of the work also
depends on the holidays of the specific country from which your
clients are domiciled.
Under the law, the bona fide suspension of the operation of a
business or undertaking not exceeding six (6) months does not
terminate employment. The following requisites must be
followed for it to be considered a valid suspension of operations:
First, the period of suspension must not be exceeding six
months.
Second, the employer shall reinstate the employee to his former
position without loss of seniority rights, if he indicates his desire
to resume his work not later than one month from the
resumption of operations of his employer.
In your case, since the temporary closure will only last for two
weeks, the said law applies. Such closure will not terminate the
employment of your employees. It is incumbent upon you as the
employer to comply with the second requisite mentioned above.
You must reinstate the employees to their former positions
without loss of seniority rights, as long as they indicate their
desire to resume their work not later than one month from the
time that the clients will resume to avail of your services.
In the meantime, you must serve your employees with a written
notice of suspension individually addressed to the employees
that will be affected by the temporary closure containing the
following:
14 UNIVERSITY OF SAN CARLOS
1. The reason why the employer is suspending operations which
in your case is the temporary closure of the business of your
clients.
2. The date that the employer expects to resume operations.
Since the closure will take effect on December 5, 2016, the
expected resumption of business will be on December 19, 2016.
3. That the employees must indicate, within one month from
resumption of operations, their desire to resume working with
the employer.
FOLLOW-UP QUESTION:
How soon can I serve the notice? When will such notice take
effect? No need to notify the DOLE?
FOLLOW-UP ANSWER:
Based on decided cases, the one-month notice rule to both the
DOLE and the employee is mandatory for both permanent and
temporary suspension of operation.
As such, even if the suspension of your employees is temporary,
you should have given the notice a month before the suspension
will take effect or in your case, on November 5, 2016.
However, considering the circumstances surrounding your case,
the one-month notice rule can no longer be complied with.
The temporary suspension remains valid. However, for failing to
comply with the one-month notice, you must pay indemnity to
the employees.
Another course of action that you may take to avoid paying
indemnity is to avail of one type of a labor-saving device which
is forced leave. It refers to one where the employees are
required to go on leave for several days or weeks utilizing their
leave credits if there are any.
FOLLOW-UP QUESTION:
Why is there such a 30-day notice, when the employment is not
terminated if the operation of the company is merely
suspended?
FOLLOW-UP ANSWER:
The notice must be given at least one month in advance from
the date of effectivity of suspension to enable the employees to
look for other means of employment during the time of
suspension so that the impact of the loss of their jobs and the
corresponding income will be mitigated. This is to prevent the ill
consequences to the employees who do not get paid while there
is a temporary suspension of operations.
This is based on jurisprudence where courts interpreted Article
301 [formerly Article 286] which provides:
ART. 301. When Employment not Deemed Terminated. The
bona-fide suspension of the operation of a business or
undertaking for a period not exceeding six (6) months, or the
fulfillment by the employee of a military or civic duty shall not
terminate employment. In all such cases, the employer shall
reinstate the employee to his former position without loss of
seniority rights if he indicates his desire to resume his work not
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
later than one (1) month from the resumption of operations of
his employer or from his relief from the military or civic duty.
The following jurisprudence shall shed light on the matter:
In Lopez v. Irvine (2014), the court ruled that “There is no
specific provision of law which treats of a temporary
retrenchment or lay-off and provides for the requisites in
effecting it or a period or duration therefor. These employees
cannot forever be temporarily laid-off. To remedy this situation
or fill the hiatus, Article 286 may be applied but only by analogy
to set a specific period that employees may remain temporarily
laid-off or in floating status.
It further ruled that “Notably, in both a permanent and
temporary lay-off, jurisprudence dictates that the one-month
notice rule to both the DOLE and the employee under Article 283
[now Article 298] of the Labor Code, as above cited, is
mandatory.
In PT&T v. NLRC (2005) citing Sebuguero v. National Labor
Relations Commission (1995), the notice must also be given at
least one month in advance of the intended date of
retrenchment to enable the employees to look for other means
of employment and therefore to ease the impact of the loss of
their jobs and the corresponding income. That they were already
on temporary lay-off at the time notice should have been given
to them is not an excuse to forego the one-month written notice
because by this time, their lay-off is to become permanent and
they were definitely losing their employment.
In all of these cases, it can be said that provisions on the one-
month notice rule is applicable to both permanent and
temporary layoff. Thus, in your case where there is temporary
suspension, the one-month notice rule is also applicable. Both
permanent and temporary layoff have economic consequences
to employees. The law affords protection to labor, as much as it
does to capital, that is why while it is considered a management
prerogative to layoff employees, procedure on notice must be
followed to lessen the impact of the loss of jobs to employees'
income. Adverse economic consequences are both present in
permanent and temporary layoff of employees.
[31] QUESTION
Our company is engaged in the assembly and distribution of
motor spare parts for vehicles. Sometime in May of 2016, our
company hired and employed Juan Dela Cruz employment as a
production trainee under a six-month period of probation
effective September 15, 2016, where he was apprised of the
measures of performance, the desired performance rating, and
what he is expected to do or accomplish during the period of
probation. Two months after, the company found the
performance of Juan wanting in terms of efficiency, diligence
and initiative.
May we ask you to draft for us a notice of dismissal, and to
advise us of the step by step procedure to make the dismissal
valid. The employee's address is at 100 Junquera St., Cebu City.
ANSWER:
To affect valid termination, first, you must notify him of his
failure to comply with the standards based on what he was
apprised of when he was engaged as found out by your company
that his performance is wanting in terms of efficiency, diligence,
and initiative.
15 UNIVERSITY OF SAN CARLOS
Second, a letter or notice indicating the grounds for the
termination and the effectivity of the termination must be served
to him within reasonable time. At least 5-day notice to the
employee before the effectivity of termination is sufficient.
Third, you must make sure that the notice be sent to him
personally or to his last known address.
Below is a sample of notice of dismissal.
DRAFT NOTICE OF DISMISSAL
November 28, 2016
Private and confidential
Mr. Juan Dela Cruz
100 Junquera St., Cebu City
Dear Mr Juan Dela Cruz;
Good Day!
Termination of Employment
Your probation period with us at Toyota Motor Parts Company
as a production trainee is due to end on March 16, 2016.
We confirm that we have decided not to continue your
employment beyond your probationary period for your
unsatisfactory work performance and poor performance ratings
as you have fallen short of the required satisfactory measures of
performance, desired performance ratings, and the expectations
to be accomplished during the period of probation.
During the two months from the date of your employment, as
per assessment, your performance is wanting in terms of
efficiency, diligence and initiative. As early as the time you
started working with us, you had been apprised of the measures
of performance, desired performance ratings, and what you are
expected to do to accomplish during the period of probation.
However, two months after the date of your employment, after
a thorough observation and evaluation of your performance, the
company found out that you failed to comply with the standards
provided for under the contract. Despite your knowledge of the
standards, the company has seen enough of your actuations that
you continued to have performance problems and you did not
exert the required dedication to comply with the standards.
Because of this, you were given an unsatisfactory rating arising
from your poor performance.
As such, because of your failure to qualify with standards as
provided for in your employment contract, the company has
finally decided to terminate your employment effective on
December 15, 2016.
We wish you well in your future endeavors.
Thank you.
Very Truly Yours,
Toyota Motor Parts Company
[32] QUESTION
Our company is into private scientific and laboratory research.
And our ongoing project involves a study and research of various
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
chemical components used in building a nuclear plant. We were
recently notified by the Professional Regulatory Commission to
hire and employ registered chemists to head our chemical
laboratory. Right now, what we have is a licensed Chemical
Engineer but no registered Chemist. We are at a loss as we
believe that hiring and employment of managerial staff must be
left to our sound discretion as management prerogative, which
the government must not interfere with. Kindly advise.
ANSWER:
On the matter at hand, the Professional Regulatory Commission,
which is an agency of the government has the power to impose
regulations in pursuance to the police power of the government
to promote the safety and health aspect of the society. Which is
why they may validly impose such regulation on your company
and this does not interfere with your vested management
prerogative.
[33] QUESTION
I will be hiring full time teachers to teach in senior high school
for this coming school year, 2017-18, as there is a high demand
for academic teaching personnel due to the K to 12
implementation. However, I also need to make sure these
qualified job applicants are made to undergo probation. Can you
please draft a simple contract which abides with the minimum
requirements of law?
ANSWER:
Attached is the proposed draft for your contract with your
desired employees. Such has been prepared in pursuant to the
requirements of our Labor Code and the 2010 Revised Manual
of Regulations for Private School.
EMPLOYMENT CONTRACT
This AGREEMENT is made as of the 23rd day of November, 2016,
between Mr. Juan dela Cruz, owner of [NAME OF SCHOOL],
having its address at Pelaez, Cebu City; and [NAME OF
EMPLOYEE], of the City of Cebu.
1. EMPLOYMENT
The Employee agrees that he will perform all of the duties
required as full time teachers in senior high school for this
coming school year, 2017-2018. That under this duration, the
employee shall be under probation in order for the Employer to
assess the Employee's fitness and efficiency for the work.
On the other hand, the Employee, as a probationary academic
personnel, undertakes to:
a. Possess at least the minimum academic qualification
prescribed by the 2010 Revised Manual of Regulations for Private
School in Basic Education (see annex);
b. Have a total working day of not more than eight hours a day
devoted to the school;
c. Have no other remunerative occupation elsewhere requiring
hours of work that will conflict with the working hours in school;
d. Not teach full-time in any other educational institution.
2. COMPENSATION
The employer, Mr. Juan dela Cruz, assumes to pay monthly
based on the regular teaching loads as will be assigned on the
16 UNIVERSITY OF SAN CARLOS
start of school year. Other benefits in compliance with the
minimum standards required by the Labor Law shall also be
provided by the Employer.
3. QUALIFICATIONS FOR REGULARIZATION
That the employee, after such period, shall become a regular full
time academic personnel if and only if he/she has satisfactorily
met the following reasonable standards:
a. The Employee will at all times faithfully, industriously, and to
the best of his skill, ability, experience and talents, perform all
of the duties required of his position.
b. That in carrying out these duties and responsibilities, the
Employee shall comply with all Employer policies, procedures,
rules and regulations, both written and oral, as are announced
by the Employer from time to time.
c. That it is agreed to by the Employee that his assignment,
duties and responsibilities and reporting arrangements may be
changed by the Employer in its sole discretion without causing
termination of this agreement.
4. Entire Agreement
This agreement contains the entire agreement between the
parties, superseding in all respects any and all prior oral or
written agreements or understandings pertaining to the
employment of the Employee by the Employer and shall be
amended or modified only by written instrument signed by both
of the parties hereto.
SIGNED, SEALED AND DELIVERED this 23rd of November, 2016
in the presence of:
________________________________________.
[Name of employee]
[Signature of Employee]
[Name of Employer Rep]
[Signature of Employer]
Thank you very much for your engagement. I hope that I have
addressed your concerns.
[34] QUESTION
I have been operating my restaurant business for the past 20
years. Last month, I received an advance notice from my lessor
that our lease contract where my restaurant is located will no
longer be renewed after its expiration on December 31, 2016. I
need your legal advice whether I can terminate the employment
of all my restaurant managers and employees since I have no
other plans to relocate my establishment. Please advise.
ANSWER:
We have reviewed your concern and we are happy to inform you
that under our laws, you can validly terminate the employment
of all of your managers and employees.
Under the Labor Law, Art. 298, previously 283, and provided in
the case of Industrial Timber Corp. vs. Ababon a reading of
Article 283 of the Labor Code shows that a partial or total closure
or cessation of operations of establishment or undertaking may
either be due to serious business losses or financial reverses or
otherwise. Under the second kind, the employer can lawfully
close shop anytime as long as cessation of or withdrawal from
business operations was bona fide in character and not impelled
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
by a motive to defeat or circumvent the tenurial rights of
employees, and as long as he pays his employees their
termination pay in the amount corresponding to their length of
service. Just as no law forces anyone to go into business, no law
can compel anybody to continue the same. Your case falls under
this circumstance because termination of the lease contract
without renewing leading to closure of the business is an
analogous authorized cause.
Employers are accorded rights and privileges to assure their self-
determination and independence, and reasonable return of
capital. This is the so-called management prerogatives. One of
the rights accorded an employer is the right to close an
establishment or undertaking. The decision to close the business
due to non-renewal of a lease contract is definitely not a
circumvention of law thus we are confident that you may validly
terminate their employment.
Be warned, however, that under DO 147-15, you have to serve
a written notice to all your employees and the appropriate
regional office of the Department of Labor and Employment at
least 30 days before the effectivity of the termination, specifying
the ground for termination. Considering that the expiration will
be on Dec. 31, 2016, the 30-day can no longer be complied with
in your case. We just want to give you a heads up and be ready
to answer for nominal damages in case some of your employees
would ask for vindication for a possible violation of their right to
statutory due process.
[35] QUESTION
A strike occurs at a local bank. Since acts of violence have been
actually committed by the strikers, the bank's management filed
directly with the NLRC a petition for injunction to enjoin the
commission of further illegal acts. Acting in the interest of public
welfare, the NLRC issued an injunction ordering the striking
employees to return to work, and obliging management to
accept them back to work. The bank was happy with the
decision, while the striking union consulted you as regards the
injunction order issued by the NLRC. What will be your advice to
the Union?
ANSWER:
The injunction issued by the NLRC, ordering the striking workers
to return to work and for management to accept them back to
work is improper. Article 265 of the Labor Code states that no
temporary or permanent injunction or restraining order in any
case involving or growing out of labor disputes shall be issued
by any court or other entity, except as otherwise provided in
Articles 218 and 264. Labor injunction is not favored, but it is
subject to exceptions.
Under Article 218 of the Labor Code the NLRC have the power
and authority to enjoin or restrain any actual or threatened
commission of any or all prohibited or unlawful acts or to require
the performance of a particular act in any labor dispute which,
if not restrained or performed forthwith, may cause grave or
irreparable damage to any party or render ineffectual any
decision in favor of such party. Hence, the NLRC can only issue
an injunction order directed only against the illegal acts being
connected with the labor dispute; it cannot be directed against
the dispute itself.
In your case, the injunction order issued by the NLRC was not
directed against the illegal acts committed by the striking
workers. It ordered the striking workers to return to work and
17 UNIVERSITY OF SAN CARLOS
for management to accept them. It was not issued to enjoin the
commission of further illegal acts as filed by the management.
It was directed against the labor dispute itself, which is not
proper except after hearing the testimony of witnesses, with
opportunity for cross-examination, in support of the allegations
of a complaint made under oath, and testimony in opposition
thereto, if offered, and only after a finding of fact by the
Commission. Thus, the Union has grounds to question the
validity of the injunction order issued by the NLRC.
[36] QUESTION
Our company is into private scientific and laboratory research.
And our ongoing project involves a study and research of various
chemical components used in building a nuclear plant. We were
recently notified by the Professional Regulatory Commission to
hire and employ registered chemists to head our chemical
laboratory. Right now, what we have is a licensed Chemical
Engineer but no registered Chemist. We are at a loss as we
believe that hiring and employment of managerial staff must be
left to our sound discretion as management prerogative, which
the government must not interfere with. Kindly advise.
ANSWER:
I would like to take this opportunity thank you for trusting us
with your query. The crux of the issue you presented to us was
whether or not the Professional Regulatory Commission (PRC)
can interfere with your management prerogative in choosing
your employees.
To start with, you are correct in saying that the hiring and
employment of managerial staff is a management prerogative
which the government must generally not interfere with.
However, this right is not absolute as confirmed by several
jurisprudence. As provided in a case, management prerogative
is limited by the provisions of law or regulations in the exercise
of the police power of the state.
Following the presumption of regularity in the performance of
functions of the PRC, their issuances of reasonable regulations,
like in your case of requiring registered chemists, defeats
management prerogative. Being a government agency tasked to
regulate professions, it has the power to issue regulations to
require the registration of employees in the exercise of the police
power of the state. Nuclear plants, being a very hazardous
endeavor, the state has reasons why the employees working in
such establishment are highly regulated, hence requiring
registration to ensure quality of performance.
Hence, we must follow the directives of the PRC and hire a
registered chemist for your nuclear plant.
[37] QUESTION
Our company is in construction business. And our ongoing
project involves the construction of a 10 storey commercial
building in Ayala. For the erection and installation of
airconditioning machinery, we offered an employment to Engr.
Edwin as Chief Engineer with a starting monthly salary of
Php50,000.00. While he conveyed to me his interest in the the
offer, Engr. Edwin would like us however to offer him a higher
pay due to his experience in the construction industry. Yesterday
afternoon while management was deliberating on the counter-
offer, Engr. Edwin called me by phone informing me that he was
accepting the salary originally offered. I informed him however
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
that management has offered the job to another person. Were
we right in rejecting Engr. Edwin? Please advise.
ANSWER:
I would like to take this opportunity to thank you for trusting us
with your query. Going to the query in hand, the gist of your
questions is whether or not your rejection to the acceptance of
Eng. Edwin as Chief engineer in your company is valid.
In our professional opinion, your rejection to the acceptance of
Eng. Edwin for the Job is valid. Under the Labor Code, no
provisions can be found prohibiting the rejection by a projected
employer to a projected employee. Inherently, this is a
management prerogative on the side of the employer to whether
or not to accept the projected employee.
The employer cannot be faulted by the subsequent acceptance
of the projected employee, to do so, would violate the right of
the employer against involuntary servitude.
[38] QUESTION
Juan, Jorge and Joy are employed as tailors by a tailoring
establishment operating in Lapu-Lapu City. They are paid on a
piece-rate basis. However, they were considered as mere casual
employees even at present although they have been working for
8 months already. Is this employment arrangement lawful?
ANSWER:
In our legal opinion, the employment arrangement was unlawful.
The law, specifically the Labor code, defines casual employment
as follows:
“An employment shall be deemed to be casual if it is not covered
by the preceding paragraph: Provided, That any employee who
has rendered at least one year of service, whether such service
is continuous or broken, shall be considered a regular employee
with respect to the activity in which he is employed and his
employment shall continue while such activity exists.
Furthermore, the implementing rules and regulations of the
Labor Code gives casual employment a definition, which is as
follows:
“Where an employee is engaged to perform a job, work, or
service which is merely incidental to the business of the
employer, and such job, work, or service is for a definite period
made known to the employee at the time of the engagement.
In your case, you were employed as a tailor in a tailoring
establishment. Since casual employment, as defined above,
refers to employment which is incidental to the main business or
trade of the employer, your arrangement with the employer is
unlawful, as it is not in compliance with the requirements set
under the law for casual employment, you being employed in
the main business or trade of your employer.
Moreover, the law, as stated above, requires that casual
employment status be made known to you at the time of
engagement.
In your case, you were already working for 8 months with your
employer. The latter never informed you beforehand at the time
18 UNIVERSITY OF SAN CARLOS
of your engagement months ago, that you were indeed a casual
employee. It runs short again of compliance with the law
pertaining to casual employment.
Thus, again, it is of our opinion that your employment
arrangement with your employer is unlawful.
FOLLOW-UP QUESTION:
Do you mean to say that if these workers were informed at the
time of their engagement that they were casual employees, their
employment arrangement is lawful?
FOLLOW-UP ANSWER:
The test for classifying one as a casual employee is whether the
service performed by the employee is not usually necessary or
desirable to the principal business of the employer. Otherwise
stated, one is deemed to be a casual employee if the job
performed is merely incidental to the main business of the
employer.
It is then inconsequential whether you were notified of your
classification as an employee. Hence, notwithstanding the fact
that the employee was notified, the arrangement is still unlawful.
FOLLOW-UP QUESTION:
If that is the case, why was there a need for you to include the
following in your legal advice?
In your case, you were already working for 8 months with your
employer. The latter never informed you beforehand at the time
of your engagement months ago, that you were indeed a casual
employee. It runs short again of compliance with the law
pertaining to casual employment.
FOLLOW-UP ANSWER:
Our initial legal opinion included such advice to discuss further
the requirements for casual employment to be met, for the
purpose of determining further whether or not your employment
arrangement was unlawful.
However, since the first requirement under the law, which is that
work should be incidental to the main business of the employer
was already not met, the employment arrangement was already
unlawful, regardless of whether or not you were informed
beforehand at the time of engagement of your employment
status.
[39] QUESTION
Our company is a beef cannery, where majority of our workers
are doing manual packing and casing up of beef meat which are
exported to China. Miguel who is one of my regular manual
workers recently contracted viral skin diseases. I immediately
asked Miguel to secure a certification from a public health
hospital if his disease is curable or not. After a week, Miguel
failed to provide me with such certification as he wanted to keep
his job. I issued a notice of preventive suspension to Miguel for
30 days without pay, and five days after, i asked him to explain
why he should not be dismissed for his disease. Miguel still
refused to answer. Please advise me whether I acted in
accordance with law and how I shall proceed to be legally
compliant.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
ANSWER:
Thank you once again for trusting us with your query. Based on
our understanding, your problem revolves around the issue of
whether or not your act of preventively suspending your
employee and subsequent request for explanation why he
should not be dismissed is legal based on the fact that he
contracted a viral skin disease.
First of all, based on the fact that you are requesting Miguel to
show cause as to why he should not be dismissed, it would seem
that you are currently contemplating of dismissing him from
service. In this regard please take note that your act of requiring
him to secure a certification is not in accordance with the law
because the burden of securing and proving the validity of the
dismissal rests on the employer, meaning the burden of making
sure that there is a medical certificate is on you. Without this
medical certificate, an employee cannot be dismissed as decided
by jurisprudence. Hence we advise that you should ensure that
this is taken care of and not leave it to Miguel s discretion,
otherwise, he cannot be dismissed.
As to the preventive suspension, in the implementing rules of
the Labor Code an employer may subject an employee to
preventive suspension if his continued employment poses a
serious and imminent threat to the life or property of the
employer or of his co-workers. This is clearly applicable in the
case at bar especially that the company is engaged in food
processing. Considering that the skin disease is viral, it clearly is
a threat to the life of your other employees and your property
as it may contaminate your food products. The preventive
suspension in this case is not a form of penalty but rather a
measure to protect the life and property of the employer. Hence,
the preventive suspension was valid.
FOLLOW-UP QUESTION:
Can preventive suspension be used if the ground for dismissal is
disease?
Was it right when I asked my employee to explain? If not, can
you advise me the step by step procedure on how to handle this
right?
FOLLOW-UP ANSWER:
This is in response to your request for clarifications on our
previous reply.
Firstly, on whether preventive suspension can be used for the
ground of disease, the law does not clearly provide for rules and
neither does jurisprudence. However, taking guidance from the
deliberations in drafting implementing rules of the labor code
and the case of Mandapa v. Add Force Personnel Services, Inc,
preventive suspension is a measure allowed by law and afforded
to the employer if an employees continued employment poses a
serious and imminent threat to the employer s life or property or
of his co-workers. It may be legally imposed against an
employee whose alleged violation is the subject of an
investigation. With this explanation, it would seem that
preventive suspension is not applicable in the case at bar as
disease is not a serious violation or offense of the employee.
Also, as this is an authorized cause, there would be no
investigation and so preventive suspension is not applicable.
Hence, we deviate from our previous answer that the suspension
was valid. We were simply concerned of the health risks in
having an employee with skin disease in the company premises,
19 UNIVERSITY OF SAN CARLOS
however preventive suspension is not the proper remedy. In
order to prevent the spread of such disease in your company,
allowing him leave with pay may be a more equitable recourse.
On the question of whether it was right for you to ask your
employee to explain, this is a rather complicated matter.
Termination on the ground of disease has constantly been held
by jurisprudence as an authorized cause. However, in the case
of Deoferio v. Intel Technology Philippines, Inc (2014), despite
acknowledging that it is an authorized cause, the court ruled that
the procedure to be followed should be the twin notice
requirement in termination for just causes. This ruling poses
serious questions as it is quite confusing why an employee still
needs to explain or show cause as to why he should be
terminated, when in fact this should no longer be subject to
debate as this can already by settled through the medical
certificate. If the certificate shows the disease is not curable in
6 months then termination is proper, otherwise it is not. Hence,
probably seeing this flaw, the Department of Labor issued DO
No. 147-15 series of 2015 clearly setting the rules for
termination based on disease. In the Department order, Disease
has been clearly classified as an authorized cause and so it
follows the procedure for authorized causes as follows:
1. Notice to the sick employee to submit himself for medical
examination by a competent public health authority to determine
that the disease is incurable within a period of 6 months even
with proper medical treatment must be acquired. A certification
to this effect must be acquired and the burden to ensure this is
with the employer.
2. If proven that the disease is not curable within 6 months
through the certificate, there must be service of a written notice
to the employee and the appropriate Regional Office of the DOLE
at least thirty days before the effectivity of the termination
specifying the grounds for termination.
Hence with the following explanation above, we believe that
requiring the employee to explain is not right because there is
no such need. The certification is all the proof that is required.
[40] QUESTION
Walde Rank-and-file Union entered into a CBA with USC School
effective from January 1, 2005 to December 31, 2010. This CBA
was duly registered. On February 25, 2010, the Walde Rank-
and-file Union signed another CBA with management effective
from January 1, 2011 to December 31, 2016. On November 15,
2010, Torregosa Rank-and-file Union, a minority Union in the
same bargaining unit filed a petition for certification election. If
you were the Med-Arbiter, will you grant the petition?
ANSWER:
Renegotiation of the CBA before or during the freedom period is
expressly allowed by D.O. No. 40-03. Under Sec. 14, Rule 8, a
Med-Arbiter may dismiss a petition for a Certification Election on
the ground that the petition was filed before or after the freedom
period of a duly registered collective bargaining agreement
provided that the sixty day period based on the original collective
bargaining agreement shall not be affected by any amendment,
extension, or renewal of the collective bargaining agreement.
Sec. 24 thereof states that the certification case shall not be
adversely affected by a collective bargaining agreement
registered before or during the last 60 days of a subsisting
agreement or during the pendency of the representation case.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
In your case, the renegotiation was made on February 25, 2010
and therefore, sanctioned by the rules. However, Torregosa
Rank-and-File Union filed a petition for certification of election
on November 15, 2010 which is within the 60-day freedom
period of the original Collective Bargaining Agreement.
Therefore, it should not be adversely affected by any
amendment or renewal of the CBA granted to Walde Rank-and-
File Union which will take effect on January 1, 2011 to December
31, 2016.
However, should Torregosa Rank-and-File-Union win, the
certified would have to still respect the contract entered into
between Walde Rank and File Union but it may bargain with the
management to shorten the life of the contract if it is too long
as was ruled in the case of General Maritime Stevedores Union
of the Philippines vs. South Sea Shipping Lines.
[41] QUESTION
I was offered employment as a part-time academic teacher in
high school. I agreed and signed an employment contract for
the school year 2015-2016, to start on 15 June 2015 and end on
15 April 2016. After the end of the said school year, I was
surprised that the school did not renew my employment
contract. Do I have any cause of action against the school?
ANSWER:
Under 2010 Revised Manual of Regulations for Private Schools,
only school personnel who has successfully undergone the
probationary period and who is fully qualified under the existing
rules and standards of the school shall be considered
permanent.
In the case of La Cuesta vs ADMU, a part time teacher cannot
acquire a permanent status. Only when he has served as a full
time teacher can he acquire a permanent or regular status. As
part time lecturer, her employment as such had ended when her
contract has expired. Petitioner could only qualify to be a
permanent employee upon fulfilling the reasonable standards for
permanent employment as faculty member. At the end of the
probation period, the decision to re-hire an employee on
probation, belongs to the university as the employer alone.
Probationary employees enjoy security of tenure but only within
the period of probation.
In your case, you are considered under probationary period
since you are employed as a part time teacher only for that
school year 2015. You are fully aware that your employment
contract as a part-time academic teacher will end on 15 April
2016. Hence upon the expiration of your contract if you failed to
meet the standards set forth by the school, it is within
management prerogative of the school not to re-new your
employment contract. Absent any showing of the violation of the
statutory procedural and substantive due process, you may not
have a cause of action against the school.
Unless you have not been notified of the fact of the expiration
of the employment contract and your failure to meet the
standards set forth under the law and school policies was not
communicated, you may have a cause of action against the
school for failure of the school with the procedural due process
with regards to the termination of your contract.
[42] QUESTION
20 UNIVERSITY OF SAN CARLOS
I was among those employed as field surveyor by a company
engaged in market research and information, doing public
surveys about consumer goods. My employment was covered by
three (3) project employment contracts which were successively
and unintermittently renewed, one after the other, depending
on my level of performance. At the end of each contract, our
employer would report to the regional office of the DOLE the
completion or termination of such contracts. Among the salient
provisions of my project employment contract is a stipulation
that "if our employer finds that we are not qualified, competent
or efficient in accordance with the standards made known to us
at the start of our employment, our employment may be
terminated after compliance with due process without the
benefit of separation pay." Last week, I was about to start with
my fourth (4th) project employment contract. However, my
employer notified me that it will no longer renew my contract,
because of my poor performance from the last contract.
ANSWER:
Taking into consideration the totality of your employment
contract with your employer it seems that the designation of
your contract as project employment is merely farcical such that
it is only intended to circumvent security of tenure and other
privileges, benefits granted to a regular employee.
Under the Labor Code, a project employment is one whose
employment has been fixed for a specific project or undertaking,
the completion or termination of which has been determined at
the time of the engagement of the employee. The services of
project employees are coterminous with the project and may be
terminated upon the end or completion of that p project for
which they are hired.
From the facts you presented your contract can hardly be
considered as project employment although it is labeled it as
such. Except in so far as reporting made by the employer the
completion or termination of your contracts with the regional
office of the DOLE, there is no other indicators that you are a
project employee at the very least as provided in Section 2.2 of
D.O No, 19. The fact of reporting is not conclusive but only an
indication that you are a project employee.
However, even assuming that you are project employee, the fact
that your project employment contracts which were successively
and unintermittently renewed, one after the other, depending
on your level of performance had already made you gain a status
of regular employee such that you are entitled to the twin
requirement of notice before your employment may be
terminated.
We have jurisprudence to support this. In the case of Samson
vs NLRC, the Supreme Court ruled that with the successive
contracts of employment t wherein petitioner continued to
perform virtually the same kind of works throughout his period
of employment, it is manifest that petitioner s tasks are usually
necessarily or desirable in the usually. The repeated re-hiring
and continuing need for his services are sufficient evidence of
the necessity and indispensability of such services to private
respondents business or trade. Where from the circumstances
it is apparent that periods have been imposed to preclude the
acquisition of tenurial security by the employee, they should be
struck down as contrary to public policy, morals, good customs
or public order.
Hence, having acquired the status of a regular employee, the
employer must follow the procedural and substantive due
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018
process afforded to a regular employee. In your case, the
employer did not comply with the requirement hence you can
sue the employer for illegal dismissal, and you may demand
backwages and even reinstatement.
[43] QUESTION
I am one of the workers of a tuna cannery. On July 1, 2014, I
was employed as temporary emergency worker on casual basis
for a fixed period of 5 months in order to cope with, and meet
the unusually high volume of production orders from Japan,
doing skinning, loining, packing and casing up of tuna meat. My
temporary casual contract of employment expressly states that
my period of employment shall not go beyond the duration of
the work or purpose for which I was engaged. On February 1,
2015, I was told that my services were no longer needed as the
volume of production has normalized. I was then paid my final
pay and made to sign a quitclaim, absolving the company of any
liability.
I am presently employed now with another company. However,
I need a legal advice if I have any cause of action, and relief
against my former employer.
ANSWER:
There are two types of activities in project employment. First, it
could refer to a particular job within the regular or usual business
of the employer company but which is distinct and separate, and
identifiable as such, from other undertakings of the company.
The second one refers to a particular job not within the regular
or usual business operations of the employer but which is distinct
and separate, and identifiable from the ordinary or regular
operations of the employer.
Since the skinning, loining, packing and casing up of tuna meat
are not distinct and separate, and not identifiable from the
undertakings of the company, your employment should have
been deemed regular after five months.
Upon the expiration of a contract of employment for a definite
term, and the employee continues to render the same services
without entering into any new agreement is evidence of the
necessity and desirability of the service in the business. After
Dec. 1, 2014 or 5 months after the date of engagement, your
employment was no longer for a specific period as that period
has lapsed and you continued to work.
Since you were already a regular employee on February 1, 2015,
and there was no just or authorized cause in your dismissal, you
have a cause of action against your previous employer for illegal
dismissal.
[44] QUESTION
I am the President of a call center company in Cebu City, which
caters to the needs of clients operating in various time zones.
My principal client is AT&T, a telecommunication company based
in U.S. and I just got a three year contract with them subject to
pre-termination by either party upon a five (5) day advance
notice. Because of the peculiarity of the nature and exigencies
of my business, I need call center agents who will be physically
available at the office to keep their seats manned in order to
service the continuous inflow of customer queries. My agents are
expected to be awake most of the night from 10 pm till 8 the
next morning, usually starting their shift by logging on to their
21 UNIVERSITY OF SAN CARLOS
computers and wait for the customers to call in with their
queries.
I need your legal advice on what is the best type of employment
contract I can hire these agents.
ANSWER:
We are of the opinion that the best type of employment contract
that you should use is project employment contract. There are
two requisites for an employee to be considered project-based,
first, is that the employee is assigned to carry out to a specific
project or undertaking; and second, is that the duration and
scope of which were specified at the time they were engaged.
There are two types of project, the project could either be (1) a
particular job or undertaking that is within the regular or usual
business company, but which is distinct and separate and
identifiable as such, from the other undertakings of the
company; or (2) a particular job or undertaking that is not in the
regular business of the corporation. Your case falls squarely on
the first type.
In drafting your project employment contract, you must specify
that the employee s work is confined to the specific project or
undertaking which is catering to the needs of AT&T; the duration
of which is co-terminus to the duration of the contract.
Project employment is the best employment contract under the
circumstances since it provides a benefit for both the employer
and the employee. Under project employment, your agents are
considered as regular employees and therefore will benefit by
having security of tenure for the duration of the project and may
only be terminated for just or authorized causes. On the other
hand, you as the employer will enjoy the benefit of the project
employment being co-terminus with the project, thereby
foreclosing the possibility of redundancy when the project is
complete. This means that at the expiration of the contract, you
will not be compelled to keep the agents employed when there
is no more work for them to do. Under the project employment
contract, you need not also pay separation pay to your agents
when they are dismissed from employment due to the
completion of the project.
[45] QUESTION
The Secretary of the DOLE certified the strike in a tire
manufacturing company to the NLRC for compulsory arbitration
and ordered the striking employees to report back to work. The
Union refused to obey, prompting the company to file a
complaint for illegal strike against defiant officers and members
of the Union. If you were the counsel for the Union officers and
members, what defense/s may you interpose?
ANSWER:
According to Art. 263 par. 7, "when, in his opinion, there exists
a labor dispute causing or likely to cause a strike or lockout in
an industry indispensable to the national interest, the Secretary
of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for
compulsory arbitration." This provision of law requires that the
industry in question is indispensable to the national interest. In
connection with this, a perusal of Department Order 40-H-13
shows that the tire industry is not one of those indispensable to
the national interest. Thus, grave abuse of discretion on the part
of the Secretary of Labor in assuming jurisdiction may be raised
by the members and officers of the union as a defense.
LABOR LAW REVIEW Labor Relations Online Questions Compilation USC LAW Batch 2018

for two months. I was then able to finish my college and

In the case of Philippine Long Distance Telephone Co. vs.
Manggagawa ng Komunikasyon sa Pilipinas, the Supreme Court
said that “[w]hen the Secretary exercises the powers granted by
Article 263(g) of the Labor Code, he is, indeed, granted great
breadth of discretion. However, the application of this power is
not without limitation, lest the Secretary would be above the law.
The discretion conferred upon officers by law is not a capricious
or arbitrary discretion, but an impartial discretion guided and
controlled in its exercise by fixed legal principles. It is not a
mental discretion to be exercised ex gratia, but a legal discretion
to be exercised in conformity with the spirit of the law, and in a
manner to subserve and not to impede or defeat the ends of
substantial justice. From the foregoing, it is quite apparent that
no matter how broad the exercise of discretion is, the same must
be within the confines of law. Thus, the wide latitude of
discretion given the Secretary under Art. 263(g) shall and must
be within the sphere of law.
[46] QUESTION
After faithfully complying with all the prescribed requirements,
the certified bargaining Union went on strike for unfair labor
practices on the part the manufacturing company. While
conducting the strike, some Union officers blocked the ingress
to and egress from the company's plant, locked the gates, and
threw stones at the company's vehicles. This prompted the
company to bring to the factory replacements for these strikers
since production must continue in order to meet pending orders
from customers.
Did management act in accordance with law? Please advise.
ANSWER:
graduated on time. Three (3) months after, I received an offer
from the same pharmaceutical company as Inventory Clerk
under a six month period of probation. Is it lawful for the
company to hire and engage me for a full six months probation
when I had already learned the job and acquired the skills
desired during my summer job with the same company. Please
advise.
ANSWER:
Based on the information you gave me, I can say that it is not
lawful for the company to hire and engage you for a full six
months probation.
Under RA 10869, as amended by RA 10917, an out-of-school
youth who is 15 years of age but not more than 30 years old,
and has experienced working in a company, can have his period
of employment in the said company counted as part of the
student's probationary period should he apply in the same
company after graduation.
In your case, you have worked for the company for two months.
This period of employment must be taken into account by the
company when they offered you a job as Inventory Clerk. Hence,
the period of probation should have been at most 4 months and
not 6 months.
Art. 281 of the Labor Code limits the probationary period to 6
months. A duration which exceeds that will be considered
unlawful.
I hope that I have answered your query. Should you have further
queries, please do not hesitate to contact me.

Yes, the management acted in accordance with law.

Even though a strike is valid because it has complied with all the
prescribed requirements, the commission of prohibited activities
under Art. 279 of the Labor Code, as amended, makes the strike
illegal. Article 279 paragraph (e) of the Labor Code, as amended,
states that “[n]o person engaged in picketing shall commit any
act of violence, coercion or intimidation or obstruct the free
ingress to or egress from the employer s premises for lawful
purposes, or obstruct public thoroughfares.

Since the strike was illegal because of the commission of the

prohibited activities, the employment status of the union officers
who committed the illegal acts or knowingly participated the
strike is deemed lost. Article 279(a) paragraph 4 of the Labor
Code, as amended, states “. . . Any officer who knowingly
participates in an illegal strike and any worker or any union
officer who knowingly participates in the commission of illegal
acts during a strike may be declared to have lost his employment
status. . . .

Since the employment status of the union officers is already

deemed lost, the management is free to hire replacements to
meet the pending orders from customers.

[47] QUESTION

I am an out-of-school youth who is still single, unemployed and

without any work experience. I am 28 years old when I stopped
my fourth year schooling in college due to financial difficulties.
Last summer vacation, I got myself a full time job as Inventory
Clerk at a pharmaceutical company in Mandaue City and worked

22 UNIVERSITY OF SAN CARLOS

ONLINE RECIT QUESTIONS ANSWERS
Exempted from overtime pay. Field Personnel

1. In my pharmaceutical company, two of my

outside salesmen whose work schedule is from
Monday to Friday, 9:00 am until 9:00 pm were each
paid a fixed salary of Php20,000 and commission of
10% on all sales, lodged a complaint for payment
of overtime pay, contending that they regularly
devote as much as 12 hours a day to sales efforts,
which yield to much higher revenue to the company
compared to their prescribed monthly quotas.
Please advise.

Revised Rules on Labor Law Compliance

2. Due to Wage Order No. 20 issued in Region VII,

my establishment engaged in the manufacture of
softdrink bottles was visited by the DOLE for the
conduct of a joint assessment. In the course of such
assessment, the DOLE Labor Law Compliance
Officer ("DOLE LLCO") directly interviewed two
rank-and-file workers who were taking a break at
the canteen, came up with his findings using the
sworn statement of these two workers that they
were underpaid and issued a compliance order. Did
the DOLE LLCO act correctly? Please advise.

Wage Distortion

3. Due to Wage Order No. 20 issued in Region VII,

my establishment which employs only six workers
was visited by the DOLE and advised to adjust the
wage rates of all my rank-and-file workers and
likewise to adjust upward the wage rates of all my
supervisory employees by providing them with the
same prescribed wage increase so as to avoid wage
distortion Do I need to comply. Why or why not?
Please advise.

Anti-Age Discrimination Act. Management

Prerogative.

4. I just got myself employed in a call center as

technical operator. During the orientation, I was
informed of a company policy which provides for an
early retirement incetive package as follows:

Xxx1. For those who has reached 40 years old - 5

months incentive pay
2. For those who has reached 45 years old - 3
months incentive pay
3. For those who has reached 50 years old - No
incentive pay
I need your opinion and advice if the above
employment policy is valid or not

Child Employment
My wife and I own a small grocery store, employing
one cashier, and two helpers. I am planning to
employ my two female children who are both 14
years old, as additional helpers and require them to
work after their school. I will be getting from the
DOLE work permits for both of them. Kindly advise
if this is legally viable.

Compliance Visit

My restaurant establishment was visited by a DOLE

labor law compliance officer last week, who told me
it was a compliance visit due to a complaint filed by
one of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay,
premium pay and holiday pay for the past 2 years.
I cannot understand such violation because I have
a payroll for the past 2 years which clearly indicated
that all my waiters were paid these laborstandards,
as in fact, I have proof both documentary and
testimonial that they actually received payment.
I would like to seek your urgent legal advice and
guidance on the complaint filed and how to address
it.

Piece Rate Order/ Time and Motion Study

Due to Wage Order No. 20 issued in Region VII, my

establishment engaged in the manufacture of
softdrink bottles was visited by the DOLE for the
conduct of a joint assessment. In the course of such
assessment, I was found by the DOLE Labor Law
Compliance Officer ("DOLE LLCO") to be paying my
rank-and-file piece rate workers below the
prescribed daily minimum wage. What type or kind
of documentary evidence do I need to contest the
findings made by the DOLE LLCO?Please advise.
Regular/Special Holiday

I would like to consult you regarding my daily paid

helper in my convenience store, which employs 12
workers. This helper complained that he has to be
paid holiday pay for working during the Barangay
Election, although she did not report for work.
Please advise whether the complaint is valid or not.

Vacation Leave

Our company is engaged in a fast food restaurant

business. It has no certified bargaining Union. In the
nature of our business, punctuality and attendance
are imperative job performance requirements.
Thus, we came out with a company policy on
vacation leave that the same may be availed only in
cases of emergency such as accident. Two of our
crew objected to the policy, contending that it
unduly impairs their right to take vacation leave,
thereby in effect, constituting diminution of
benefits.

If these crew were to question the policy, which has

jurisdiction, and why? Please advise

Service Charges

I would like to consult you regarding my take-home

pay from the restaurant company I am presently
working, which was reduced by around Php100 a
week. This started when my employer discontinued
the collection of service charges from the customers
in order to gain more patrons to compete with the
opening of a new restaurant adjoining our
establishment. Please advise whether I have a valid
grievance.

Working Hours of Health Personnel

I am the administrator of a multi-million hospital in

Metro Manila. Aside from the doctors, nurses,
pharmacist, medical aides, also employed are
electricians and security personnel, who all work
regularly from Monday to Saturday for 8 hours
daily. Last week, a complaint was lodged by the
electricians, contending they are entitled to
overtime pay for the whole 8 hours of work on
Saturday. Please advise.

Working Hours of Children

My wife and I own a small grocery store, employing

one cashier, and two helpers. I am planning to
employ my two female children who are both 14
years old, as additional helpers and require them to
work after their school. I will be getting from the
DOLE work permits for both of them. Kindly advise
if this is legally viable.

13th Month Pay

In my pharmaceutical company, two of my outside

salesmen whose work schedule is from Tuesday to
Sunday, from 9:00 am until 6:00 pm who are paid
a fixed salary of Php20,000 plus commission of 10%
on all sales, lodged a complaint for payment of their
13th month pay for last year, contending that they
have been working continuously for the past 2
years. Do they have valid claims? Please advise.

Night Shift pay

I would like to consult you regarding my daily paid

lady helper in my gas station. My gas station is open
24 hours a day. Aside from the helper, I have one
(1) cashier and three (3) gas attendants. This lady
helper complained that she has to be paid an
additional compensation for working during her shift
from 10:00 pm until 6:00 am the following morning.
Please advise whether her complaint is valid or not.

Wage distortion

My establishment is engaged in the manufacture of

beer products. There is no certified bargaining
agent in my establishment. I have rank-and-file
employees in my factory. Six months after, I
granted a daily wage adjustment to these factory
workers from Php366 to Php400. Their fellow rank-
and-file workers in the administrative department
who were paid the prescribed daily minimum wage,
however, complained of wage distortion after their
negotiation for a wage adjustment with me failed.
They now seek the assistance of the National
Conciliation and Mediation Board. Were they right in
seeking redress of their grievance? Why or why not?
Please advise.

Visitorial Powers

My restaurant establishment was visited by a DOLE

labor law compliance officer last week, who told me
it was a compliance visit due to a complaint filed by
one of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay,
premium pay and holiday pay for the past 2 years.
I contested the findings by presenting the payroll of
the waiters to prove payment and receipt of all
overtime pay, premium pay and holiday pay.
However, the DOLE Regional Director still issued a
Compliance Order, directing me to pay each of the
waiters his unpaid overtime pay, premium pay and
holiday pay in the amount of Php35,000.00. Did the
Regional Director act correctly? What is my remedy,
if any?

Minimum Wage Fixing

I am a member of the Regional Tripartite Wages &

Productivity Board (Board) representing the
employers' sector. There is now a pending petition
with the Board filed by a duly registered federation
of workers in Region VII asking for a Php500 across-
the-board wage increase. Deliberations are now
going on, between and among the members of the
Board, and there is a strong probability that the
federation's petition would be granted. Can you
advise us if the petition conforms with existing law?

RIGHT OF THE EMPLOYER TO A REASONABLE

RETURN OF INVESTMENT / BREACH OF
CONTRACT

One of my technical managers got himself

employed with a rival company after finishing his
training abroad which was fully paid for by the
company. I believe this violated the contract he
signed with us where he bound and committed to
work for us solely and exclusively for one year after
completing his training abroad. Can you please
advise what we can do?

WAGE DISTORTION

My establishment is engaged in the manufacture of

beer products. I have rank-and-file employees in
my factory. Six months after, I granted a daily wage
adjustment to these factory workers from Php366
to Php400. Their fellow rank-and-file workers in the
administrative department who were paid the
prescribed daily minimum wage, however,
complained of wage distortion since no similar
increase was given to them. Do these workers have
a valid grievance? Why or why not? Please advise.

WAGE DEDUCTION

I am the lawful wife of the General Manager of a

meat processing company. My children and I have
not been provided with monthly support by my
husband for the past two months. I am planning to
write the President of my husband's company to
request him to deduct from my husband's monthly
salary the sum of Php50,000 for support. Can you
advise me if my idea is doable or not, and if I have
other legal options to make sure I get a monthly
support from my husband's salary? But I do not
want my husband to go to jail.

KASAMBAHAY LAW – DRIVERS OR PERSONS

ON THE PERSONAL SERVICE OF ANOTHER

I have been in the show business for so many years.

And my childhood friend works exclusively for me
for the past two years, as family driver. During
weekend, he accompanies me for my out-of-town
trips when I have some performances. I pay him a
fixed weekly wage of Php2,000.00. Yesterday, he
asked me to let him spend a two day vacation in his
hometown, which I flatly denied. He later sued me
to pay him the cash equivalent of his leave benefits.
Please advise.

Employer-Employee Relationship

We recently interviewed a male applicant for the job

of foreman in our construction company. And after
the applicant accepted the offer of Php100,000
monthly salary, the company decided to hire him for
our multi-million 10 storey condominium building in
Ayala, Cebu. However, today we received a letter
from his wife that he left for Saudi Arabia yesterday
as he was accepted for employment abroad. We are
now at a loss on what right do we have against this
foreman who has not even started to work but is
now gone. Kindly advise

Visitorial & Enforcement Power of SOLE

I am employed in a real estate company as one of

the licensed and registered brokers. Recently, a
DOLE regional office Labor Law Compliance Officer
(LLCO) visited the establishment and conducted a
Joint Assessment. Based on the Notice of Results,
the LLCO found our establishment guilty of non-
payment of overtime pay, premium and holiday
pay. Instead of accepting its liability, our
establishment contested these findings by
presenting our independent contractorship
agreements and contended that no employer-
employee relationship exists between us and the
company. The DOLE Regional Director however
insisted on making a determination as regards the
issue raised, to which the company vehemently
objected to, contending that it is the arbitration
branch of the NLRC which has jurisdiction under the
Labor Code to hear and resolve issue of employer-
employee relationship and not the Regional Director
of the DOLE. After due deliberation, the DOLE
Regional Director found the absence of employer-
employee relationship.
We would like to ask your legal advice on what is
the effect of such adverse findings by the DOLE
Regional Director on the Notice of Results, and the
remedy we have, if any?
Overtime Pay

On the occasion of a big fire in Mandaue City area

two years ago, some personnel of my department
had to work an average of 12 hours a day,
sometimes continuously to put out fire. Some of
these personnel filed a claim for overtime
compensation with the Regional Director of the
DOLE. However, each claim only amounted to
Php5,000.00. Will these claims prosper?
13th Month Pay

In my pharmaceutical company, two of my outside

salesmen who are paid a fixed salary of Php20,000
plus commission of 25% on all actual sales made,
lodged a complaint for payment of their 13th month
pay for last year, contending that they have been
working continuously for the past 2 years. How
much 13th month pay are they entitled, if any.
Please advise.

Wage Order

I am a member of the Regional Tripartite Wages &

Productivity Board (Board) representing the labor's
sector. There is now a pending petition with the
Board filed by a duly registered federation of
workers in Region VII asking for a Php7.00 wage
adjustment, to be added to the prevailing minimum
wage in the region. Deliberations are now going on,
between and among the members of the Board, and
there is a strong probability that the federation's
petition would be granted. Can you advise us if the
petition conforms with existing law?

Visitorial and Enforcement

Due to Wage Order No. 20 issued in Region VII, my

establishment was visited by the DOLE and advised
to grant all my rank-and-file workers regardless of
their tenure and length of service an across-the
board increase equivalent to the wage adjustment
prescribed by said Order. Do I need to comply. Why
or why not? Please advise.

Holiday Pay

I would like to consult you regarding my daily paid

helper in my gas station. My gas station is open 24
hours a day. Aside from the helper, I have one (1)
cashier and twelve (12) gas attendants. During last
year's Holy Week, the helper reported for work only
on Monday and Tuesday and was absent on
Wednesday when he went on his scheduled vacation
leave. This helper complained about his unpaid
holiday pay when I did not pay him on Holy
Thursday and Maundy Friday. Please advise
whether his complaint is valid or not.

Holiday Pay

I would like to consult you regarding my daily paid

workers in my multi-million textile company. I
suspended the operations of my company from
December 15 to 31 as part of the annual
maintenance and yearly inventory. My workers
complained about their unpaid holiday pay during
the period covered. Please advise whether their
complaint is valid or not.

Management Prerogative; Anti-Discrimination

I just got myself employed in a call center as technical

operator. During the orientation, I was informed of a
company policy which provides for an early retirement
incentive package as follows:
Xxx1. For those who has reached 40 years old - 5
months incentive pay
2. For those who has reached 45 years old - 3 months
incentive pay
3. For those who has reached 50 years old - No
incentive pay
I need your opinion and advice if the above
employment policy is valid or not.

Conditions of employment;Wage enforcement

and recovery

I own a small coffee shop where I permit

talents/entertainers 16 years old and above,
preferably females with celebrity status, to play
selected Cebuano songs every Friday and Saturday,
from 7pm until 12midnight, using their own musical
instruments. I pay these talents/entertainers talent
fees ranging from Php1,000 to Php3,000 after and for
every performance, depending on their skill including
the quality of the song and music played. I provide
these talents/entertainers additional incentive fee of
Php1,000 in case our net sales exceed Php30,000 a
month.
These talents/entertainers come and go, as I do not
keep and maintain them permanently, their services
being solely dependent on whether customers will
continue to patronize their performances or not.
Recently, a Labor Law Compliance Officer served us a
copy of DOLE Notice of Results after he conducted a
Compliance Visit in our establishment. In the DOLE
Notice, he found non-payment of holiday pay and
service charges. We immediately contested these
findings of the DOLE by presenting witnesses
attesting to the irregular and intermittent nature of
the services of these talents/entertainers. However,
the DOLE insisted on its findings that these
talents/entertainers were employees, to which we
vehemently objected to since it is the arbitration
branch of the NLRC which has original and exclusive
jurisdiction under the Labor Code to try, hear and
resolve issue of employer-employee relationship.
May we request for your opinion and advice?
Joint assessment; Minimum Wage; Facility
evaluation

Due to Wage Order No. 20 issued in Region VII, my

furniture establishment was visited by the DOLE for
the conduct of a joint assessment. In the course of
such assessment, I was found by the DOLE Labor Law
Compliance Officer to be paying my rank-and-file
piece rate workers only Php15 for every piece of chair
produced which is way below the prescribed daily
minimum wage, and thus, advised to pay the wage
difference. However, I have a facility valuation from
the RTWPB to prove that the meals I provide these
workers during lunch were duly approved, thereby
making their daily wages twice the prescribed daily
minimum wage. Do I need to comply? Why or why
not? Please advise.

Wage order enforcement; Wage distortion

Due to Wage Order No. 20 issued in Region VII, my

establishment which employs only six workers was
visited by the DOLE and advised to adjust the wage
rates of all my rank-and-file workers and likewise to
adjust upward the wage rates of all my supervisory
employees by providing them with the same
prescribed wage increase so as to avoid wage
distortion Do I need to comply. Why or why not?
Please advise.

13th month pay

In my pharmaceutical company, two of my outside

salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses and
commission of 10% on all sales, lodged a complaint
for payment of their 13th month pay for last year,
contending that they have been working
continuously for the past 2 years. If I were to pay
them, how do I compute their 13th month pay?
Please advise.

Holiday Pay

I would like to consult you regarding my unpaid

holiday pay last Eidl Fitr. I worked as a manicurist
for the past 3 years for a Beauty Parlor & Spa which
opens from 9:00 a.m until 9:00 pm daily, and which
has 15 hair stylists and 5 manicurists including
myself. I am paid Php30.00 for every manicure I
perform. Sometimes, I earn Php120.00 daily, but
there are occasions when there are no customers at
all. Do I have a valid complaint and how much can
I claim? Please advise.
Equal Protection Clause

Congress recently passed a bill which required

every private employer to compensate its workers
who are one year or less in their employ with
separation pay equivalent to the number of months
they actually rendered service, while those more
than one year or more, separation pay equivalent
to one month pay for every year of service, in case
these workers are separated from their employ due
to insolvency. Should I recommend to the President
the signing of the bill into law?

Employer-Employee Relationship

After watching "Terminator" at the Ayala mall, I saw

a booth of Tele BPO Call Center Company recruiting
call center agents. I took my chance and got myself
interviewed. After the interview, I was instantly
offered a job as Call Center Advisor with a monthly
salary of Php50,000, which I graciously accepted.
Was there an employer-employee relationship now
created between me and the company? Kindly
advise.

Visitorial and Enforcement Power

My restaurant establishment was visited by a DOLE

labor law compliance officer last week, who told me
it was a compliance visit due to a complaint filed by
one of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay,
premium pay and holiday pay for the past 2 years.
I contested the findings by presenting the affidavits
of other waiters. However, the DOLE Regional
Director still issued a Compliance Order, directing
me to pay each of the waiters his unpaid overtime
pay, premium pay and holiday pay in the amount of
Php35,000.00. Did the Regional Director act
correctly? What is my remedy, if any?

Wages

I am the owner of a coconut plantation. During the

harvest season, I employ workers to harvest fresh
coconuts. While at the farm, these workers break
the coconut shells, remove the meat from the
shells, dry the shells and place the dried copras in
sacks of one hundred kilos each to be transported
and sold later to public markets. I pay my workers
the daily minimum agricultural rates but they
protested and claim they are into processing of
coconuts into copra, which involves non-agricultural
work. Please advise.

Service Incentive Leave

I am the President of a call center in Cebu City which

caters to the needs of clients operating in various
time zones. My company has a policy granting 10
days vacation leave with pay to all our employees
who have rendered one (1) year of service, and an
additional one day vacation leave with pay for every
year after, up to a maximum of 20 days. However,
our policy says that any leave unused by the
qualified employee within the year of entitlement
shall not be convertible to cash and shall be deemed
forfeited. Ten of my employees who have been with
the company for the past five years did not avail
and use their scheduled vacation leave last year but
are now demanding payment of the cash equivalent
thereof. Do these employees have legal basis for
their claims. Kindly advise.

Compelling an Employee to Work During

Scheduled Rest Days Notwithstanding
Religious Worship Days

I am the President of a call center in Cebu City which

caters to the needs of clients operating in various
time zones. As I am anticipating successive non-
working special holidays due to the forthcoming
APEC conferences which will be held in Cebu, I am
planning to operate for seven straight days starting
on Monday. After making an advance
announcement of my plan, I was surprised to
receive a protest letter from fifty of my employees
who are members of Iglesia Ni Kristo, informing me
of their strong reservation of making them work on
Saturday, their scheduled rest days, which is also
their day of worship. Do these employees have legal
basis for their protest? Kindly advise.

Overtime Pay for Piece-Rate Workers

I work in a candy factory. I am paid by the number

of candies properly wrapped, and alloted 10 hours
of work a day in order to produce at least 1000
pieces of properly wrapped candies. In case I fail to
meet the quota, I am subjected to disciplinary
action. Can I claim payment of overtime pay? Please
advise
Anti Discrimination & Bonfa Fide Qualification
Rule

A company engaged in deep sea fishing advertises

for workers in its fishing operations. When I applied
for employment, my application was denied
because the company's policy expressly stated that
only males need apply due to the nature of the
business. I need your advice and opinion.
Limitations on an Employer’s Right to Select
Employees

After watching "Terminator" at the Ayala mall, I saw

a booth of Tele BPO Call Center Company recruiting
call center agents. I took my chance and got myself
interviewed. After the interview, I was instantly
offered a job as Call Center Advisor with a monthly
salary of Php50,000, which I graciously accepted.
However, when I reported to work, I was dismayed
to learn that there was no more vacancy for my
position. I insisted to sign an employment contract
but the company refused and informed me to return
next year. Kindly advise me what to do.

Employer-Employee Relationship vs.

Independent Contractor Relationship

Our company's business is in real estate. Recently,

we received several claims for payment of overtime
pay, premium and holiday pay from 10 licensed and
registered real estate brokers who were responsible
in the advertisement and negotiation for the sale of
our 2 hectare commercial land in Carbon, Cebu City.
We already paid these brokers their commissions
and thus, we were suprised why they made these
additional claims against the company. May we
request for your opinion and advice as regards the
claims made?

Overtime Pay

I own a fleet of taxi cabs. And I employ drivers

whose arrangement with me is to use the taxi cabs
for 24 hours at anytime of the day and night except
Monday, and I pay them 20% of the gross proceeds
earned. I got a claim from one of the drivers for
payment of overtime pay. Please advise.
Service Incentive Leave
I am the President of a call center in Cebu City which
caters to the needs of clients operating in various
time zones. My company has a policy granting 10
days vacation leave with pay to all our employees
who have rendered one (1) year of service, and an
additional one day vacation leave with pay for every
year after, up to a maximum of 20 days. However,
our policy says that any leave unused by the
qualified employee within the year of entitlement
shall not be convertible to cash and shall be deemed
forfeited. Ten of my employees who have been with
the company for the past five years were not able
to avail and use their scheduled vacation leave last
year due to the successive non-working special
holidays brought about by the APEC conferences
where I required all employees to work for seven
(7) straight days. Can they demand payment of the
cash equivalent of their unused vacation leave.
Pleased advise.
QUESTION
My establishment engaged in the manufacture of
softdrink bottles was visited by the DOLE for the
conduct of a compliance visit. I then learned from
the DOLE Labor Law Compliance Officer that there
was one worker who was working with my
company for the past 10 years until his resignation
last month who lodged a complaint with the DOLE
for underpayment of wages amounting to
Php5,000. In spite my explanation that this former
worker was merely disgruntled, the DOLE Labor
Law Compliance Officer ("DOLE LLCO") issued me
the Notice of Results. Did the DOLE LLCO act
correctly? Please advise.
The LLCO did not act correctly. The visitorial and
enforcement power that may be exercised by
the Regional Director or his representative
through the conduct of a compliance visit
requires that an employer-employee
relationship still exists at the time the complaint
is presented. Such requirement is clearly
provided in Art. 128 (b) of the Labor Code.
Art. 128(b)
b. Notwithstanding the provisions of Articles
129 and 217 of this Code to the contrary, and in
cases where the relationship of employer-
employee still exists, the Secretary of Labor and
Employment or his duly authorized
representatives shall have the power to issue
compliance orders to give effect to the labor
standards provisions of this Code and other
labor legislation based on the findings of labor
employment and enforcement officers or
industrial safety engineers made in the course
of inspection.
In the case at hand, the worker is no longer an
employee of the company at the time the
compliance visit was conducted. Thus, the LLCO
did not act correctly in issuing the Notice of
Results since under the present rules, the
Regional Director or his duly authorized
representatives can exercise both visitorial and
enforcement power provided that there still
exists an employer-employee relationship.
QUESTION
In my pharmaceutical company, two of my outside
salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses, and
commission of 10% on all sales, applied for
retirement although they were both below the
retirement ages provided by law. In consideration
of their 10 years of loyal and dedicated service, I
allowed them to retire and paid them 150% of their
latest total salary. Two months after, another
salesman who has been employed only for two
years likewise applied for retirement, which I also
granted but paid him only 100% of his latest total
salary. This salesman now complained that he was
unjustly and unlawfully discriminated, anchoring
his claim on company practice. Does he have a valid
cause of action? Why or why not. Please advise.
No diminution benefits since there is no
company practice. So that the rule against
diminution may apply, it must be shown that
1. the grant of the benefit is founded on a policy
or has ripened into a practice over a long
period;
2. the practice is consistent and deliberate
3. the practice is not due to error in the
construction or application of a doubtful or
difficult question of law; and
4. the diminution or discontinuance is done
unilaterally by the employer
In this case, the benefit was only granted one by
the employer once, in consideration for long
period of service.
QUESTION
Due to Wage Order No. 20 issued in Region VII, my
furniture establishment was visited by the DOLE for
the conduct of a joint assessment. In the course of
such assessment, I was found by the DOLE Labor
Law Compliance Officer to be paying my rank-and-
file piece rate workers only Php15 for every piece
of chair produced which is way below the
prescribed daily minimum wage, and thus, advised
to pay the wage difference. However, I have a
facility valuation from the RTWPB to prove that the
meals I provide these workers during lunch were
duly approved, thereby making their daily wages
twice the prescribed daily minimum wage. Do I
need to comply? Why or why not? Please advise.
You need not comply with paying the wage QUESTION
difference at this stage. Instead, D.O. 131-B-16 I am the President of a call center in Cebu City
is instructive on the course of action that you which caters to the needs of clients operating in
should take. It provides for the procedures to various time zones. As I am anticipating successive
non-working special holidays due to the
be taken after joint assessment has been
forthcoming APEC conferences which will be held in
conducted. Particularly, Rule v, Sec. 4, para. d, Cebu, I am planning to operate for seven straight
subparagraph d.1. governs Non-compliant days starting on Monday. After making an advance
Establishments, viz: announcement of my plan, I was surprised to
“If the establishment is found non-compliant, receive a protest letter from fifty of my employees
the LLCO shall issue an Notice of Result to the who are members of Iglesia Ni Kristo, informing me
representatives of the employer and the of their strong reservation of making them work on
employees, and the sole and exclusive Saturday, their scheduled rest days, which is also
bargaining agent, if organized, indicated therein their day of worship. Do these employees have
the noted deficiencies.” legal basis for their protest? Kindly advise.
This said Notice of Result contained the wage
Yes, the 50 Iglesia ni Kristo employees have a
deficiencies that were assessed against you
legal basis for their protest.
payable to your employees. The D.O. provides
that you or your representative who disagrees
Under the Labor Code (Article 91a), as a general
with the findings may note your comment on
rule, the employer has the prerogative in fixing
the NR before affixing your signature. You must
the schedule of the rest day of his employees
note in the NR your disagreement as regards
subject to CBA and rules and regulation of the
said wage deficiencies stating there that you
DOLE. However, such general rule is subject to
have a facility valuation which forms part of
an exception under (Article 91b) that is if it is
your employees’ salary.
based on the religious grounds of the
The next step is the conduct of a Mandatory
employees. In other words, the employer’s right
Conference. Under Rule XII, Sec. 1. of the said
and prerogative is subject to the preference in
Department Order, a mandatory conference
the choice by the employee of his rest day
shall be conducted after the lapse of the twenty
based on religious grounds
(20) days period of correction for general labor
However, there is an exception to the
standards deficiencies arising from Joint
abovementioned exception. The employer can
Assessment. During the mandatory conference,
compel the employees to work on their
you may present your facility valuation as proof
preferred rest day despite their religious
that you are not liable to the wage difference as
preference for setting such date as their rest
assessed by the DOLE LLCO.
day if granting it would inevitably result in
Within 10 days after the termination of the
serious prejudice or obstruction to the
mandatory conference, the Hearing Officer shall
operations of the undertaking and the
submit his/her recommendation for the
employer cannot normally be expected to
disposition of the labor standards case.
resort to other remedial measures. In which
Accordingly, the Regional Director shall issue
case, the employer can only compel these
the corresponding compliance Order within 10
workers to work on their preferred rest day for
from receipt of the aforesaid recommendation.
only twice a month.
If you will be issued a Compliance Order, you
may file an appeal to the Office of SOLE by filing
In the case at bar, the President wanted the
a Memorandum of Appeal, furnishing the other
workers to work for 7 straight days to
party with a copy of the same, within 10 days
presumably compensate for the successive non-
from receipt thereof, based on the grounds
working holidays due to the APEC conference.
provided under the said Department Order.
Fifty workers protested of the President's plan.
The president would have been able to compel
these workers to work on their rest day since it
is his prerogative as President to set the
schedule for the rest day. However, these fifty
workers are members of the Iglesia ni Kristo
and they chose Saturday as their preferred rest
day since it is the day of worship for them.
The only way for the President to be able to
compel these fifty workers to work on their
preferred rest day which they chose due to
religious preferences is when allowing these 50
workers to not work on one Saturday would
result in serious prejudice or obstruction to the
operations of the undertaking and the employer
cannot normally be expected to resort to other
remedial measures.
QUESTION
I worked as a regular utility worker for a
businessman in Lapu-Lapu City who own a large rice
mill. Customarily, I am paid a daily cash wage of
Php250.00 plus daily wage in kind consisting of 5
kilos of "Ganador" rice worth Php150.00, the value
of which I have accepted in writing. I am planning
to file a complaint against my employer for wage
underpayment since my daily cash wage is way
below the prescribed minimum wage. Do I have
solid legal basis to pursue my complaint? Please
advise
ANSWER
As to your inquiry, we advise you not to pursue your
complaint, as it does not have any solid legal basis.
As a general rule, wages are payable in cash.
However, there is an exception where the wage is
payable partly in cash and partly in kind.
“Facilities” is defined in the Section 5, Rule 7-A, Book
III of the Omnibus Rules Implementing the Labor
Code as “articles or services for the benefit of the
employee or his family but shall not include tools of
the trade or articles or service primarily for the
benefit of the employer or necessary to the conduct
of the employer’s business.” As provided for in the
Labor Code, if payment qualifies as facilities, it forms
part of the wages of the employee, and as such, the
reasonable value thereof may be deducted from the
employee’s wage.
It is well-settled that in order for payment to qualify
as facilities and be considered as an integral part of
an employee’s wage, the following requisites must
be present:
1. It must be customarily furnished by the employer
to the employee;
2. It must be charged at a fair and reasonable value;
and
3. The provision on deductibility must be voluntarily
accepted by the employee in writing.
In your case, the payment in kind qualifies as
“facilities” because it is an expense necessary for you
and your family’s existence and subsistence. Also, it
satisfies all the requisites in order for a facility to be
wage-deductible. Since the daily wage in kind
consisting of 5 kilos of “Ganador” rice worth P150.00
is customarily furnished by your employer and you
have accepted the value of such in writing, the fair
and reasonable value thereof can be charged and
deducted from your wage. Therefore, finding no
legal basis, we advise that you do not pursue your
complaint, as your daily wage does not fall below the
prescribed minimum wage and the payment in kind
qualifies as facilities and forms part of your daily
wage of P400.00.
QUESTION
I was a marketing officer of a retail establishment
engaged in repair and retreading services for used
tires, until I was offered by its owner to operate a
tire and retreading business, using the
establishment's business name and service system.
Since the owner would provide me with revolving
funds I can use to run the business subject to
periodic liquidation, I accepted the offer and quit
my job.
In carrying out my undertaking, I abide with the
owner's dictated prices, and faithfully observe the
owner's prescribed quality of services and good
business practices. Out of my sales from this
business, I am required to deduct from the
revolving fund the expenses I spent with the
balance thereof representing my income. For the
past eight months, I noticed however that I was
getting income way below the monthly minimum
wage in the region. I intend to file a complaint
against the owner for underpayment of wages?
Please advise.
ANSWER
In response to your inquiry, we strongly advise you
to file a complaint to protect your rights as a
worker.
Given that you did not state the exact amount of the
monthly-wage you have been receiving for the past
8 months, we would like to inform you of the Cebu
City standing basic wage of P366/Day for non-
agricultural work.
As a worker, you have a right to a Living Wage,
under Section 3, Article 8 of the 1987 Constitution.
This means that you are entitled to an amount of
family income needed to provide for the family's
food and non-food expenditures with sufficient
allowance for savings/investments for social security
so as to enable the family to live and maintain a
decent standard of human existence beyond mere
subsistence level, taking into account all of the
family's psychological, social and other needs.
The Law protects workers Mr. Dela Cruz, to not only
receive wages for mere day-to-day survival but for
more. The manner of work that you are undertaking
as of the moment is not fair labor but is what we call
a "sweating system" which means you are being
exploited as workers with wages so low as to be
insufficient to meet the bare cost of living.
Lastly, Article 113 of the Labor Code of the
Philippines states that;
"No employer, in his own behalf or in behalf of any
person, shall make any deduction from the wages of
his employees except;
1.) as payment for premium on the insurance
2.) Union Dues with the authorized consent in
writing of the employee
3.) Deductions authorized by law.
As your situation is not among those listed, the
deduction of the employer from your wages is
unlawful.
Should you decide to pursue legal action, our law
firm is willing to aid you in the upholding of your
rights.
QUESTION
I am the owner of a coconut plantation. During the
harvest season, I employ workers to harvest fresh
coconuts. While at the farm, these workers break
the coconut shells, remove the meat from the
shells, dry the shells and place the dried copras in
sacks of one hundred kilos each to be transported
and sold later to public markets. I pay my workers
the daily minimum agricultural rates but they
protested and claim they are into processing of
coconuts into copra, which involves non-
agricultural work. Please advise.
ANSWER
To answer your predicament, you need to
understand the nature of the work that your farm
workers are engaged in. In your point of view, you
consider their work to be agricultural and in so
considering, are paying them the minimum
agricultural rates. On the other hand, they think that
they should be paid the non-agricultural wage rates
as they are engaged in processing of coconuts into
copra.
To shed light on this matter, we consult the Labor
Code. Article 97 (d) defines “agriculture” as including
farming in all its branches and, among other things,
includes the cultivation and tillage of soil, dairying,
the production, cultivation, growing and harvesting
of any agricultural and horticultural commodities,
the raising of livestock or poultry, and any practices
performed by a farmer on a farm as an incident to or
in conjunction with such farming operations, but
does not include the manufacturing or processing of
sugar, coconuts, abaca, tobacco, pineapples or other
farm products.
The above-stated provision clearly cites the
manufacturing of coconuts as not falling under the
term “agriculture”. Based on your description of the
work that they do (i.e. breaking coconut shells,
removing meat from the shells, and placing dried
copras in sacks), it involves the processing of
coconuts and is therefore excluded from the term
“agriculture”.
It is also important for you to understand that
different minimum wage rates apply to different
types of work. Since it has already been established
that the nature of your farm workers’ job is non-
agricultural, they must be paid with the minimum
wage rates for non-agriculture work.
QUESTION
I am the owner of a large poultry farm in Batanes
island. My farm can produce thousands of egg a day
from chickens. I have ten (10) full time workers
whose main job involve processing the eggs, and
mixing it with milk, sugar and other ingredients
using an automated machinery and kitchen
equipment, and packing them into candies. I pay
them the daily minimum agricultural wage rates
applicable in the region. Did I act correctly? Please
advise.
ANSWER
Unfortunately, your act of paying your 10 full-time
workers the daily minimum agricultural wage rates is
not correct. This is because “Agricultural work” as
defined by Article 97(d) of the Labor Code, means
the raising of livestock or poultry and other chores
incidental to ordinary farming operations. In your
case, even if you are engaged in a poultry farm, your
employees are not performing chores incidental to
ordinary farming operations specifically the raising
of livestock or poultry as they are performing
industrial work.
“Industrial Work” is performed when the harvest are
processed into finished product or transformed to
another product. In relation to your case, your
workers are involved in processing the eggs and
mixing it with milk, sugar, and other ingredients
using an automated machinery and kitchen
equipment and packing them into candies.
Therefore, your workers are engaged in industrial
work.
This differentiation is important because the
agricultural is generally lower than the industrial pay
rate. Because of this, you appear to be underpaying
your employees.
In conclusion, we advise you to pay them at least the
daily industrial minimum wage rates.
QUESTION
I own a bottling company, which manufactures
containers for juices. One department I have
involves the manual cleaning and inspection of
bottle containers. I pay the workers the daily
minimum wage for an 8 hour of work. However, I
noticed that my workers are less productive since
they can only clean and inspect an average of 250
containers in a normal work day. Can I change my
method of fixing compensation without violating
any law? Please advise.
ANSWER
Yes, you can change your method of fixing
compensation without violating any law. In the facts
presented, your employees are classified as daily-
paid employees. Under the R.A. 6727 or the Wage
Rationalization Act, the employer can pay its
employees any amount provided that it does not fall
below the prescribed minimum wage.
Considering your predicament involves slack in
demand, there is a remedy provided under the Labor
Code. The remedies are as follows: (1) compressed
workweek; (2) reduce working days; (3) temporary
suspension of operation of not more than 6 months.
You can avail any of those as you deemed sufficient.
QUESTION
Our company’s business is in real estate. Recently,
we received several claims for payment of overtime
pay, premium and holiday pay from 10 licensed and
registered real estate brokers who were
responsible in the advertisement and negotiation
for the sale of our 2hectare commercial land in
Carbon, Cebu City. We already paid these brokers
their commissions and this, we were surprised why
they made these additional claims against the
company. May we request your opinion and advise
as regards the claims made?
ANSWER
The claims made by the real estate broker should
not be granted. The contractual relationship
between you and the 10 real estate brokers is a
principal-contractor relationship, and is not covered
under our labor laws, but is found in the Civil Code.
This kind of contractual relationship means that you
as the principal are not in control over the means,
manner, and method as to how the work is to be
done, and under the Civil Code, you as the principal
may only control the results thereof. The power over
the means, manner, and method as to how to
conduct the work is an essential element in an
employer-employee relationship, that of which is
absent here. In the said relationship, the employee
here would then be entitled to overtime time pay,
premium pay, and holiday pay.
To sum up our advice, the 10 real estate brokers
here are not entitled to overtime pay, premium pay,
and holiday pay since such benefits are merely
reserved exclusive for employees under an
employer-employee relationship.
QUESTION
I received a complaint from my construction
workers for alleged illegal deduction of wages. In
particular, they accuse my company that the value
of the meals and lodging which we provide them
within the construction site to enable them to be
available at anytime while construction activities
are going on, should not have been deducted from
their wages. Can you please advise us if the
complaint has basis? And secondly, can you advise
us of the potential liability of the company, if any?
ANSWER
This is in relation to your query on the complaint of
your construction workers for the alleged illegal
deduction of wages from the lodging and meals that
you provided them.
Under Article 113 of the Labor Code on Wage
Deduction, it is said that no employer, in his own
behalf or in behalf of any person, shall make any
deduction from the wages of his employees subject
to certain exceptions. One exception pertains to
cases where the employer is authorized by law or
regulations issued by the Secretary of Labor and
Employment. Deduction for value of meals and other
facilities is an example of a deduction authorized by
law.
However, it is very important to revisit Department
Order No. 126-13 Series of 2013 or the Revised
Guidelines on the conduct of Facility Evaluation.
Under the said guidelines, facilities, which is part and
deductible from the wage, was distinguished from
supplements, which is not wage deductible and
independent of the wage. As defined, facilities refer
to articles or services provided by the employer for
the benefits of the employee or his/her family but
shall not include tools of the trade or articles or
services primarily for the benefit of the employer or
necessary to the conduct of the employer’s business.
Meals and housing for dwelling purposes are
generally considered as facilities.
In order that the fair and reasonable value of the
facilities may be deducted from the wages of the
employees. The following requisites must concur:
a. Facilities subject of valuation are customarily
furnished by the employer to the employee.
b. Facilities must be charged at a fair and reasonable
value.
c. Deductibility of the value of the facilities must be
voluntarily accepted in writing by the employee.
In your case, food and lodging are not considered
facilities but supplements. A benefit or privilege
granted to an employee for the convenience of the
employer is not facility. The criterion in making a
distinction between facilities and supplements does
not so much lie in the kind but the purpose.
Considering therefore that your company provided
you meals and lodging within the construction site to
enable the worker to be available at any time for
construction activities are going on, it can be said
that the workers’ availability is a necessary matter in
the construction operations and is beneficial to the
employer. The meals and lodging in your case should
be considered as a supplement and should not be
deducted from your wage.
For the liability, your company will need to
compensate the amount withheld form the
employees subject to interest.
QUESTION
I just got myself employed in a call center as
technical operator. During the orientation, I was
informed of a company policy which provides for an
early retirement incentive package as follows:
xxx 1. For those who have reached 40 years old – 5
months incentive pay
2. For those who have reached 45 years old – 3
months incentive pay
3. For those who have reached 50 years old – No
incentive pay
I need your opinion and advice if the above
employment policy is valid or not.
ANSWER
The policy is valid. Company management is in the
position to prescribe the rules as to the early
retirement incentive package. It may choose he age
for the retirement and the incentive it would give,
provided that it is in accordance with your collective
bargaining agreement. Your consent based on your
independent judgment to the agreement is the final
say.
QUESTION
I am the owner of a coconut plantation. For the
past two years, I have an arrangement with two
residents near the plantation, where I divided my
property between the two and entrusted each one
of them to take care of the land, remove the weeds
near the trees, fumigate the trees and prevent
strangers from taking the coconuts. I pay these two
residents 1/5 of the total coconut harvest I make
from the area entrusted to them. Yesterday, I
received a complaint from one of the residents,
claiming payment of his wages for the past two
years. Please advise.
ANSWER
The two residents have no right to claim for their
respective wages, under Article 98 of our Labor
Code, wages shall not apply to farm tenancy or
leasehold, domestic service and persons working in
their respective homes in needle work or in any
cottage industry duly registered in accordance with
law.
Since your industry is under Farm tenancy or
leasehold in accordance with RA 1199, tenancy exist
whenever two persons agree on a joint undertaking
for agricultural production wherein one party
furnishes the land and the other is his labor, and the
produce thereof to be divided between the
landholder and the tenant in proportion to their
respective contributions.
The 1/5 of coconut harvest that you have paid for
two years will be their proportion to their respective
contribution of the work done, therefore you no
longer have to pay them for wages.
QUESTION
My restaurant establishment was visited by a DOLE
labor law compliance officer last week, who told
me it was a compliance visit due to a complaint
filed by one of the waiters. I was served a Notice of
Results, finding violation of non-payment of
overtime pay, premium pay and holiday pay for the
past 2 years. I cannot understand such violation
because I have a payroll for the past 2 years which
clearly indicated that all my waiters were paid
these labor standards, as in fact, I have proof both
documentary and testimonial that they actually
received payment. I would like to seek your urgent
legal advice and guidance on the complaint filed
and how to address it.
ANSWER
In view of the foregoing, the correct way to address
your query is to contest the Notice of Inspection
Results and present the documentary proofs i.e. the
payroll you mentioned that proves you have paid
correctly, copies of their employment contracts, and
to have your waiters put their testimonies under
oath in an affidavit stating that you have made such
payments for the past two years as required by
Section 6 of Rule X, Book III, of the Labor Code.
Please be advised that we have to submit our
contest of the Notice of Inspection Results with all
our documentary proof of your compliance from the
date you have received such Notice at earliest to the
Regional Director of the DOLE or during the hearing
of the case at the latest.
QUESTION
In Batanes island, I own a 200 square meter
warehouse where I employ families in one small
remote barangay and supply them with clothing
materials to make embroideries using seashells and
organic materials. I need your advice whether I
need to pay them the prescribed minimum wages?
ANSWER
Under Art. 98 of the Labor Code, one of the
exemptions for the non-payment of the prescribed
minimum wage are those persons working in their
respective homes in needle work.
In your case, although your business is engaged in
clothing materials to make embroideries using
seashells and organic materials, which in nature is
involved in needlework, the law provides that for the
exemption for the payment of prescribed minimum
wage to apply, the persons or employees must be
working in their respective homes.
Since your employees are working in your own
warehouse and not in their respective homes, the
exemption for the prescribed minimum wage is not
applicable.
Hence, you are obliged to comply with the
prescribed minimum wage.
QUESTION
On the occasion of a big fire in Mandaue City area two
years ago, some personnel of a private non-
governmental organization which is funded by private
donations had to work an average of 12 hours a day,
sometimes continuously to assist our firemen. Some
of these personnel filed a claim for overtime
compensation. However, each claim did not exceed
Php5,000.00. Will these claims prosper?
ANSWER
The firemen can validly claim for overtime
compensation.
Under Article 87 of the Labor code overtime work is
work performed beyond 8 hours a day and an overtime
work is an additional compensation equivalent to his
regular wage.
no employee shall be made to work more than 8 hours
a day against his will but this rule is not absolute, any
worker can also be compelled to work under
compulsory overtime work under article 89 of the
Labor code
Under subparagraph “b” when it is necessary to
prevent loss of life or proper or incase of imminent
danger to public safety due to an actual or impending
emergency in the locality caused by serious accidents,
fire, flood, typhoon, earthquake, epidemic, disaster or
calamity
Under this rule employer should pay his workers to
render overtime work so they are entitled to overtime
pay.
Follow up question:
But the employer is the Bureau of Fire Protection?
Will it not matter?
Answer:
The Bureau of Fire is not the employer of those
personnel who assisted the firemen but the private
non- governmental organization.
Under article 82 of our labor code, overtime
compensation shall apply to all establishments and
undertakings whether for profit or not, but not to
government employees, managerial employees, field
personnel, members of the family of the employer who
are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers
who are paid by results.
In this case, considering that the employer is the non-
governmental organization, the personnel are still
entitled with overtime compensation.
QUESTION
My restaurant establishment was visited by a DOLE
labor law compliance officer (LLCO) last week to
conduct a Joint Assessment. During such visit, the
LLCO told me I have to pay my Chief Cook overtime
pay since the daily time record of this manager would
show that he works regularly an average of 10 to 12
hours daily, for the past 3 years. When I disagreed, I
was served by the Regional Director/DOLE of a Notice
of Results, finding violation of non-payment of
overtime pay. Please advise.
You can validly contest or question the Notice
Results served by the DOLE to you. DOLE made
a mistake when it found you in violation of the
non-payment of Overtime pay of your Chief
Cook who is a managerial employee of your
restaurant. Since, under our labor laws,
managerial employee is among those
employees exempted from Overtime pay.
But, you can only contest the NR within 20 days
from when you received the NR. It is the
prescribed period to correct deficiencies arising
from Joint Assessments and it is non-extendible.
Otherwise, if you fail to contest the NR within
the prescribed 20 days period, the deficiencies
not corrected will be docketed as a Labor
Standards Case.
There will then be a mandatory conference held
within 10 days from the lapse of the period of
correction which shall last for a period not
exceeding 30 days reckoned from the date of
the first conference. 10 days after the
termination of the mandatory conference, the
Hearing officer will then submit his/her
recommendation on the disposition of the
Labor Standards Case. Accordingly, the Regional
Director will issue either a (1) Compliance Order
or a (2) Order dismissing the case.
If there is still time left of the 20 day period for
correction of the NR. You should take note that
in contesting the NR, issues raised must be
accompanied with documentary proofs not
verifiable during the normal course of the
inspection.
QUESTION
I have been in the show business for so many years.
And my childhood friend works exclusively for me for
the past two years, doing all household chores. During
weekend, he accompanies me when I have some
performances. Because of busy schedule, he was not
able to use his leave benefit. Yesterday, he demanded
from me to pay him the cash equivalent of his unused
leave benefits. Please advise.
Good day!
Let me commend you for bringing your concern
up before taking any actions with respect to the
request of your friend.
First, let's check if he qualifies as a household
helper under Batas Kasambahay (RA 10361) and
if so, does the said law allows the conversion of
the accrued leave benefits into cash?
Under the said law, you friend is considered a
household helper since he qualifies in the
definition under section 4 (d):
 payment of overtime pay, contending that they
(d) Domestic worker or “Kasambahay” refers to regularly devote as much as 12 hours a day to sales
any person engaged in domestic work within an efforts, which yield to much higher revenue to the
employment relationship such as, but not company compared to their prescribed monthly
quotas. Please advise.
limited to, the following: general househelp, x x
x but shall exclude any person who performs
Good Day Mr. -------,
domestic work only occasionally or sporadically
and not on an occupational basis.
Thank you for requesting our assistance
regarding this matter.
In the case of your friend, he was employed by
you to do all household chores. He does not
No, the salesmen cannot be entitled to
perform the work occasionally as in fact, he
overtime pay as they claim to be. Article 82
worked for exclusively for you for the past two
*check daw if wala na renumber* of the Labor
years. Thus, he is convered in the said law.
Code provides for the right of employees to
overtime pay, among others.
Unfortunately for your childhood friend,
although he is entitled to leave benefits he is
However, one exemption to the
not allowed to convert unused leaves to cash
aforementioned provision, is a situation where
under Batas Kasambahay:
the employee is a field personnel.
Field personnel are employees who undertake
Under section 29 of the same law, "a domestic
their jobs, outside the principal place of
worker who has rendered at least one (1) year
business of the employer and those whose
of service shall be entitled to an annual service
working hours cannot be determined by
incentive leave of five (5) days with pay:
reasonable certainty.
Provided, That any unused portion of said
annual leave shall not be cumulative or carried
The reason why this type of employee is not
over to the succeeding years. Unused leaves
included is that the basis of overtime pay, which
shall not be convertible to cash.
is hours of work, cannot be determined due to
the lack of close or personal supervision of the
Hence, you are legally allowed to refuse to give
employer.
him his accrued leave benefits for the last two
(2) years.
Your employees, being outside salesmen are
considered field personnel and consequently,
We hope that we helped you regarding your
since their hours of work cannot be
concern! God bless!
determined, they are exempted from the
QUESTION provision granting employees overtime pay.
I own a fleet of taxi cabs. And I employ drivers whose There is no way that you, the employer, can
arrangement with me is to use the taxi cabs for 24 ascertain the hours of work that your
hours at anytime of the day and night except Monday, employees claim to be serving. They are beyond
and I pay them 20% of the gross proceeds earned. I your personal supervision.
got a claim from one of the drivers for payment of
overtime pay. Please advise. Sincerely,
QUESTION
Cheung super team
In my pharmaceutical company, two of my outside
salesmen who are paid a fixed salary of Php20,000
QUESTION
plus Php5,000 monthly allowance for expenses and
In my family-owned pharmacy, two of my unmarried
commission of 10% on all sales lodged a complaint for
adult children work full time as assistants, regularly
working an average of 15 hours daily, since they live
with me and my wife in the same house. They are
paid a fixed monthly salary which they share to the
family upkeep. After they got married, one of the two
children sued me for non-payment of labor standards.
Please advise.
The suit against the parent for non-payment of
labor standards shall not succeed. Article 82 of
the Labor Code provides that employees who
are members of the family of the employer who
are dependent on him for support shall be
exempted from the minimum labor standards
benefits.
This case fits squarely with the requisites
provided by Article 82. First, the party who filed
the suit is the child of the employer and second,
the child who filed the suit was dependent on
the employer for support since he still live with
his parents before he got married.
While the work done by the child is exempted
from minimum labor standards benefits before
he got married, the work done by the child after
he is emancipated by reason of marriage must
be provided with the minimum labor standards
benefits. This includes night shift differential,
overtime pay, holiday pay, service incentive
leave, and service charges.
QUESTION
I have been in the show business for so many years.
And my make-up artist and hairdresser who has been
my childhood friend works exclusively for me in Cebu
City. During the week, when I have some
performances or events to attend to, he has to work
for 10 hours daily. However, when there no events, he
only works for one to two hours, and there are also
days when he does not work at all. In spite the
irregular schedule, I pay him a fixed weekly wage of
Php2,000.00. Yesterday, he confronted me about his
pay. Please advise.
Thank you for coming to our office for advice.
By looking at the facts surrounding your situation,
your make-up artist and hairdresser can indeed be
considered an employee. In asserting this, we
applied the two-tiered test enunciated by the
Supreme Court in the case of Francisco vs NLRC. This
test involves: (1) 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 (2) the underlying economic realities of the
activity or relationship.
However, he is considered as a person in the service
of another contemplated under Art. 82 of the Labor
Code which are exempted from labor standard
benefits. Hence, you are not required to pay him the
standard minimum wage.
QUESTION
I am the President of a call center in Cebu City which
caters to the needs of clients operating in various time
zones. As I am anticipating successive non-working
special holidays due to the forthcoming APEC
conferences which will be held in Cebu, I am planning
to operate for seven straight days starting on
Monday. After making an advance announcement of
my plan, I was surprised to receive a protest letter
from fifty of my employees who are members of
Iglesia Ni Kristo, informing me of their strong
reservation of making them work on Saturday, their
scheduled rest days, which is also their day of
worship. Do these employees have legal basis for their
protest? Kindly advise.
Yes, the 50 Iglesia ni Kristo employees have a
legal basis for their protest.
Under the Labor Code, as a general rule, the
employer has the prerogative in fixing the
schedule of the rest day of his employees
subject to CBA and rules and regulation of the
DOLE. However, such general rule is subject to
an exception that is if it is based on the religious
grounds of the employees. In other words, the
employer’s right and prerogative is subject to
the preference in the choice by the employee of
his rest day based on religious grounds.
However, there is exception to the
abovementioned exception. The employer can
compel the employees to work on their
preferred rest day despite their religious
preference for setting such date as their rest
day if granting it would inevitably result in
serious prejudice or obstruction to the
operations of the undertaking and the employer
cannot normally be expected to resort to other
remedial measures. In which case, the employer
can only compel these workers to work on their
preferred rest day for only twice a month.
In the case at bar, the President wanted the
workers to work for 7 straight days to
presumably compensate for the successive non-
working holidays due to the APEC conference.
Fifty workers protested the plan of the
President. The president would have been able
to compel these workers to work on their rest
day since it is his prerogative as President to set
the schedule for the rest day. However, these
fifty workers are members of the Iglesia ni
Kristo and they chose Saturday as their
preferred rest day since it is the day of worship
for them.
The only way for the President to be able to
compel these fifty workers to work on their
preferred rest day which they chose due to
religious preferences is when allowing these 50
workers to not work on one Saturday would
result in serious prejudice or obstruction to the
operations of the undertaking and the employer
cannot normally be expected to resort to to
other remedial measures.
However, allowing 50 workers not to work on
only one rest day which they prefer due to
religious reasons would hardly result to serious
prejudice or obstruction to the operations of
the undertaking of the employer. To hold
otherwise would be to assume that any
establishment would suffer serious prejudice or
obstruction to its operations if the workers
would not work for only one day, which in
reality does not happen. In fact, in this case,
only 50 out of all the workers are asking not to
work on their preferred rest day, and
operations will still go on since there are other
workers that can be compelled to work on that
day, provided it is not their preferred rest day
due to religious preference also.
On the other hand, remedial measures could
normally be resorted to if 50 workers would not
work in one day. The president may ask his
other workers whom he could still legally
compel to work on Saturday to do overtime to
be able to compensate for the lost work due to
the absence of 50 workers on that one day.
ANSWER FOR THE ONE WITH FOLLOW-UP
QUESTION:
You are assuming that no work will be
required during the successive holidays. You
are assuming that if there is a holiday in a call
center, it will close its operations.
ANSWER
Article 91 of the Labor Code states that the
management has a prerogative in fixing the rest
day for the employees. This is subject to an
exception which is “the employer must respect
the preference of employees as to their weekly
rest days when such preference is based on
religious grounds”.
Your employees who are from Iglesia ni Kristo
have a ground on this however there is also an
exception to the exception. This is when the
choice of the employees as to their rest day
based on religious grounds will inevitably result
in serious prejudice or obstruction to the
operations or undertaking and the employer
cannot normally be expected to resort to other
remedial measures, the employer in this case
may schedule the weekly rest day of their
choice for at least two days in a month.
Since you are expecting an important event
(APEC Conferences) you have a reason to
require your employees to work. The choice of
your employees would eventually cause some
problems for your business so you can adjust
the schedule for their rest days. You can even
find more support under Article 92(c) of the
Labor Code where you can compel employees
to work on a rest day in the event of abnormal
pressure or work due to special circumstances
which in this case is the forthcoming APEC.
QUESTION
My establishment is engaged in the manufacture of
beer products. I have rank-and-file employees in my
factory. Six months after, I granted a daily wage
adjustment to these factory workers from Php366 to
Php400. Their fellow rank-and-file workers in the Finally, in Bankard Employees Union v. NLRC,
administrative department who were paid the the Supreme Court ruled that the compulsory
prescribed daily minimum wage, however, mandate under Article 124 of the Labor Code to
complained of wage distortion since no similar
correct wage distortion cannot be applied to
increase was given to them. Do these workers have a
valid grievance? Why or why not? Please advise. voluntary and unilateral increases by the
employer, as in this case, because this is
The workers have no valid grievance as there inherently a business judgment prerogative.
has no wage distortion that has happened.
QUESTION
I am working for a meat processing company which
Wage distortion, under article 124 of the Labor owns a canned corned beef product, selling one can at
Code, means a situation where an increase in Php80.00. Since I am a regular employee, I am entitled
prescribed wage results in the elimination or under the company policy to purchase on credit
severe contraction of intentional quantitative company canned goods at 50% discount. Last
differences in wage or salary rates between and December 2016, I made several purchases for the
among employee groups in an establishment as Christmas season. However, the value of the
to effectively obliterate the distinctions purchases I made on credit were considered by the
embodied in such wage structure based on company as part payment of my wages. Do I have any
skills, length of service, or other logical bases of valid grievance as regards this company policy?
differentiation.
Under Article 102 of the Labor Code, no
Further, the Supreme Court, in Prubankers
employer shall pay the wages of an employee
Association v. Prudential Bank, laid down the
by means of promissory notes, vouchers,
elements comprising wage distortion:
coupons, tokens, tickets, chits, or any object
1. An existing hierarchy of positions with
other than legal tender, even when expressly
corresponding salary rates;
requested by the employee. The same article
2. A significant change in the salary rate of a
further provides that payment of wages by
lower pay class without a concomitant increase
check or money order shall be allowed when
in the salary rate of a higher one;
such manner of payment is customary on the
3. The elimination of the distinction between
date of effectivity of this Code, or is necessary
the two levels; and
because of special circumstances as specified in
4. The existence of the distortion in the same
appropriate regulations to be issued by the
region of the country. Furthermore, the
Secretary of Labor and Employment or as
Supreme Court in the same case also held that
stipulated in a collective bargaining agreement.
it is the hierarchy of positions and the disparity
of their corresponding wages and other
In relation thereto, Article 113 of the Labor
emoluments that are sought to be preserved by
Code provides that no employer, in his own
the concept of wage distortion.
behalf or in behalf of any person, shall make
any deduction from the wages of his
In the case at bar, the two groups of employees
employees, except: (1) In cases where the
are all rank-and-file employees. The only
worker is insured with his consent by the
difference between the two is that one group
employer, and the deduction is to recompense
works in the factory, while the other is
the employer for the amount paid by him as
administrative in nature. Clearly, there is no
premium on the insurance; (2) For union dues,
existing hierarchy of positions between the two.
in cases where the right of the worker or his
The elements, therefore, of a wage distortion
union to check-off has been recognized by the
are not present in this case.
employer or authorized in writing by the
individual worker concerned; and (3) In cases
where the employer is authorized by law or
regulations issued by the Secretary of Labor and
Employment.
Article 1706 of the Civil Code also provides that
withholding of the wages, except for a debt
due, shall not be made by the employer.
In the case at bar, the act of the employer in
considering the value of the purchases on credit
as part of the payment of wages is not allowed
under the law. For, such payment is not in legal
tender. Moreover, it is not one of the
exceptions provided for under the 2nd
paragraph of Article 102 of the Labor Code. It
cannot also be justified under Article 1706 of
the Civil Code as a valid wage deduction
because it is not yet due and demandable. Thus,
you have a valid grievance with regards to such
company policy.
QUESTION
My restaurant establishment was visited by a DOLE
labor law compliance officer last week, who told me it
was a compliance visit due to a complaint filed by one
of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay,
premium pay and holiday pay for the past 2 years. I
cannot understand such violation because I have a
payroll for the past 2 years which clearly indicated
that all my waiters were paid these labor standards,
as in fact, I have proof both documentary and
testimonial that they actually received payment. I
would like to seek your urgent legal advice and
guidance on the complaint filed and how to address it.
ANSWER
In view of the foregoing, the correct way to address
your query is to contest the Notice of Inspection
Results and present the documentary proofs i.e. the
payroll you mentioned that proves you have paid
correctly, copies of their employment contracts, and to
have your waiters put their testimonies under oath in
an affidavit stating that you have made such payments
for the past two years as required by Section 6 of Rule
X, Book III, of the Labor Code.
Please be advised that we have to submit our contest
of the Notice of Inspection Results with all our
documentary proof of your compliance from the date
you have received such Notice at earliest to the
Regional Director of the DOLE or during the hearing of
the case at the latest.
QUESTION
I am the lawful wife of the General Manager of a meat
processing company. My children and I have not been
provided with monthly support by my husband for the
past two months. I am planning to write the President
of my husband's company to request him to deduct
from my husband's monthly salary the sum of
Php50,000 for support. Can you advise me if my idea
is doable or not, and if I have other legal options to
make sure I get a monthly support from my husband's
salary? But I do not want my husband to go to jail.
ANSWER
Yes, your idea is doable.
The law expressly mandates parents and their
children to give support to each other, whether
their relationship is legitimate or not.
Undeniably, you and your children have the
right to demand support from your husband.
Support is defined by the Family Code of the
Philippines as follows:
“Art. 194. Support comprises everything
indispensable for sustenance, dwelling,
clothing,
medical attendance, education and
transportation, in keeping with the financial
capacity of the family.
The education of the person entitled to be
supported referred to in the preceding
paragraph shall include his schooling or training
for some profession, trade or vocation, even
beyond the age of majority. Transportation shall
include expenses in going to and from school, or
to and from place of work.”
Under Article 203 of the Civil Code, the
obligation to give support shall be demandable
from the time the person who has a right to
receive the same needs it for maintenance, but
it shall not be paid except from the date of
judicial or extrajudicial demand.
Based on the above provisions, it is imperative
that demand must be made to require the
father of your daughter to fulfill his obligation
to give support to the latter. If he fails to
comply with his obligation, he may be
compelled to do so by the filing of an order shall be enforced by law enforcement
appropriate civil action in court. agencies. The protection orders that may be
It is worthy to note that our law prohibits issued under this Act are the barangay
employers, on their own behalf or in behalf of protection order (BPO), temporary protection
any person, to make deductions from the wages order (TPO) and permanent protection order
of their employees except in the following (PPO). The protection orders that may be issued
instances: 1) where the worker is insured with under this Act shall include any, some or all of
his consent by the employer, and the deduction the following reliefs:
is to recompense the employer for the amount
paid by him as premium on the insurance; 2) for
union dues, in cases where the right of the
worker or his union to check-off has been
recognized by the employer or authorized in
writing by the individual worker concerned; and
3) the employer is authorized by law or
regulations issued by the Secretary of Labor and
Employment (Article 113, Labor Code of the
Philippines).
So, before the employers may make deductions
from wages, it must first be established that the
same is authorized by law, or regulations issued
by the Secretary of Labor. Based on the
foregoing, the laws have explicitly provided that
the right to support is demandable. Therefore,
you may send a demand letter addressed to
your husband’s company for wage deduction as
it is authorized by law.
Other legal option, as previously mentioned, is
the filing of an appropriate action in court.
Under the Anti-Violence Against Women and
Their Children Act of 2004 or R.A. No. 9262, a
mechanism was introduced for the purpose of
preventing further acts of violence that may be
inflicted against a woman or her child/children.
This is particularly provided by Section 8 thereof
to wit:
“SECTION 8. Protection Orders.- A protection
order is an order issued under this act for the
purpose of preventing further acts of violence
against a woman or her child specified in
Section 5 of this Act and granting other
necessary relief. The relief granted under a
protection order serve the purpose of
safeguarding the victim from further harm,
minimizing any disruption in the victim’s daily
life, and facilitating the opportunity and ability
of the victim to independently regain control
over her life. The provisions of the protection
xxx
(g) Directing the respondent to provide support
to the woman and/or her child if entitled to
legal support. Notwithstanding other laws to
the contrary, the court shall order an
appropriate percentage of the income or salary
of the respondent to be withheld regularly by
the respondent’s employer for the same to be
automatically remitted directly to the woman.
Failure to remit and/or withhold or any delay in
the remittance of support to the woman and/or
her child without justifiable cause shall render
the respondent or his employer liable for
indirect contempt of court;
xxx”
Hence, you may also file a petition for
Protection Order under R.A. 9262 with the
Family Court of the place where you live to
compel your husband to give financial support.
QUESTION
I have been in the show business for so many years.
And my childhood friend works exclusively for me for
the past two years, doing all household chores. During
weekend, he accompanies me when I have some
performances. I pay him a fixed weekly wage of
Php2,000.00. Yesterday, he asked me to let him spend
a two day vacation in his hometown, which I flatly
denied. He later sued me to pay him the cash
equivalent of his leave benefits. Please advise.
He is entitled to a two-day vacation leave to his
hometown, however, he cannot ask for the cash
equivalent of his leave benefits.
He is considered by law as a domestic worker or
a Kasambahay. A Kasambahay is defined by law
as any person engaged in domestic work within
an employment relationship such as, but not
limited to, the following: general househelp,
nursemaid or “yaya”, cook, gardener, or laundry
person.
His rights are covered by the provisions of the
Domestic Workers Act. The relevant provision
of the said law states that “A domestic worker
who has rendered at least one (1) year of
service shall be entitled to an annual service
incentive leave of five (5) days with pay:
Provided, That any unused portion of said
annual leave shall not be cumulative or carried
over to the succeeding years. Unused leaves
shall not be convertible to cash.”
In the case at bar, your friend has been under
your employment for over 2 years doing
household work. Thus, your friend squarely falls
within the definition of a Kasambahay.
As a result, he can validly ask for a five-day
leave for every year of service rendered and he
shall be paid for such leave. His unused leave
benefits, however, cannot be converted to cash.
On your part, you are required by law to comply
with its provisions. Your friend has a right under
the law to have a service incentive leave. He
should be allowed to have a two-day vacation.
Non-compliance with the Domestic Workers Act
is punishable with a fine of not less than Ten
thousand pesos (P10,000.00) but not more than
Forty thousand pesos (P40,000.00). A civil or
criminal action may also be filed against you
QUESTION
I am working for a fine dining restaurant as a waiter.
At the time I was hired, I was told by the General
Manager that my wages would be deducted for the
value of plates or glasses that I may broke while in the
performance of my work. Although I did not give my
conformity, I was surprised that on two occasions
when I carelessly broke some plates (I admit I was
then in a hurry to go home), my weekly wage suffered
a 10% deduction based on the actual value of these
plates. I need your advice if I can validly recover what
was deducted from my wage.
Yes. You can validly recover the 10% deduction
made in your weekly wage by your General
Manager.
Our law prohibits employers, on their own
behalf or in behalf of any person, to make
deductions from the wages of their employees,
except in the following instances:
1) where the worker is insured with his consent
by the employer, and the deduction is to
recompense the employer for the amount paid
by him as premium on the insurance;
2) for union dues, in cases where the right of
the worker or his union to check-off has been
recognized by the employer or authorized in
writing by the individual worker concerned; and
3) the employer is authorized by law or
regulations issued by the Secretary of Labor and
Employment (Article 113, Labor Code of the
Philippines).
Furthermore, the employers cannot just
unilaterally declare and impose upon their
employees the giving of bonds and/or deposits
to stand as a reimbursement for loss or damage
to tools, materials, or equipment supplied by
the employer. Unless the employer is able to
establish the following:
1.) that the same is authorized by law, or
regulations issued by the Secretary of Labor.; or
2.) that the posting of cash bonds is a
recognized practice in their business or if there
be none, the employers should seek for the
determination by the Secretary of Labor
through the issuance of appropriate rules and
regulations that the policy that they wish to
implement is necessary or desirable in the
conduct of their business.(Niña Jewelry
Manufacturing of Metal Arts, Inc., vs.
Montecillo, G.R. No. 188169, November 28,
2011).
The failure of the employers to comply with the
foregoing will render the deductions baseless
and illegal.
In the case at bar, neither Article 113 nor Article
114 can be availed by the General Manager to
justify the 10% deduction in your weekly wage.
None of the exceptions in Article 113 can be
availed as your case does not involve
deductions for purposes of insurance, union
dues, or any of those instances authorized by
law. Moreover, Article 114 cannot also be used
as a valid justification as there was no deposit
nor a cash bond that have been required by
your General Manager in your case. Thus, there
can be no valid and legal basis for the 10%
deduction by your General Manager which
entitles you to recover the amount that has
been previously deducted.
SEE Bluer than Blue Case
QUESTION
In Batanes island, I own a 200 square meter
warehouse where I employ families in one
small remote barangay and supply them with
clothing materials to make embroideries using
seashells and organic materials. I need your
advice whether I need to pay them the
prescribed minimum wages?
ANSWER
Under Art. 98 of the Labor Code, one of the
exemptions for the non-payment of the
prescribed minimum wage are those persons
working in their respective homes in needle
work.
In your case, although your business is engaged
in clothing materials to make embroideries
using seashells and organic materials, which in
nature is involved in needlework, the law
provides that for the exemption for the
payment of prescribed minimum wage to apply,
the persons or employees must be working in
their respective homes.
Since your employees are working in your own
warehouse and not in their respective homes,
the exemption for the prescribed minimum
wage is not applicable.
Hence, you are obliged to comply with the
prescribed minimum wage.
ONLINE RECIT QUESTIONS (1-14)
My establishment engaged in the manufacture of soft
drink bottles was visited by the DOLE for the
conduct of a compliance visit. I then learned from the
DOLE Labor Law Compliance Officer that there was
one worker who was working with my company for
the past 10 years until his resignation last month who
lodged a complaint with the DOLE for underpayment
of wages amounting to Php5,000. In spite my
explanation that this former worker was merely
disgruntled, the DOLE Labor Law Compliance
Officer ("DOLE LLCO") issued me the Notice of
Results. Did the DOLE LLCO act correctly? Please
advise.
Revised Rules on Labor Law Compliance
Due to Wage Order No. 20 issued in Region VII, my
furniture establishment was visited by the DOLE for
the conduct of a joint assessment. In the course of
such assessment, I was found by the DOLE Labor
Law Compliance Officer to be paying my rank-and-
file piece rate workers only Php15 for every piece of
chair produced which is way below the prescribed
daily minimum wage, and thus, advised to pay the
wage difference. However, I have a facility valuation
from the RTWPB to prove that the meals I provide
these workers during lunch were duly approved,
thereby making their daily wages twice the
prescribed daily minimum wage. Do I need to
comply? Why or why not? Please advise.
ANSWERS
The LLCO did not act correctly. The validity of the
act of the LLCO hinges on the presence of the
requirement/s set forth under Art. 128 (b) of the
Labor Code which embodies the visitorial and
enforcement power that may be exercised by the
Regional Director or his representative through the
conduct of a compliance visit. The afore-stated
provision provides that
“xxx in cases where the relationship of employer-
employee still exists, the Secretary of Labor and
Employment or his duly authorized representatives
shall have the power to issue compliance orders to
give effect to the labor standards provisions of this
Code and other labor legislation based on the
findings of labor employment and enforcement
officer xxx”
From the foregoing, the clear requirement of the law
before the Secretary of Labor and Employment or his
duly authorized representatives can exercise their
visitorial and enforcement power is that the
employer-employee relationship should still exist.
This element is lacking in this case. When the LLCO
conducted the Compliance visit, the employer-
employee relationship has already ceased.
You need not comply with paying the wage
difference at this stage. We suggest that you exhaust
first the procedures as outlined in D.O. 131-B-16
which is instructive on the course of action that you
should take.
To begin with, Rule V, Sec. 4 (d.1) provides:
“If the establishment is found non-compliant, the
LLCO shall issue a Notice of Result to the
representatives of the employer and the employees,
and the sole and exclusive bargaining agent, if
organized, indicating therein the noted deficiencies.
xxx the contents of the Notice of Result shall be
explained to the representatives of the employer and
the employees who shall thereafter affix their
signature. Any representative who disagrees disagree
with the findings may note his/her comment on the
Notice of Result before affixing his signature”
As provided in Rule V, Sec. 4 (e.1), you are given a
non-extendible period of 20 days from receipt of NR
to correct the deficiencies as contained in said NR.
If you chose not to correct the deficiencies noted in
the NR within the prescribed 20-day period, your
case will be docketed as Labor Standard case by the

I worked as a regular utility worker for a
businessman in Lapu-Lapu City who own a large rice
mill. Customarily, I am paid a daily cash wage of
Php250.00 plus daily wage in kind consisting of 5
kilos of "Ganador" rice worth Php150.00, the value
of which I have accepted in writing. I am planning to
file a complaint against my employer for wage
underpayment since my daily cash wage is way
below the prescribed minimum wage. Do I have solid
legal basis to pursue my complaint? Please advise
Regional Director or his duly authorized
representative. A mandatory conference within 10
days from the lapse of the 20-day period earlier
mentioned. In case of an adverse decision by the
Hearing Officer and the subsequent issuance of a
Compliance Order, you may appeal the same to the
Office of the Secretary of Labor and Employment by
filing a Memorandum of Appeal and appeal bond
within 10 days from receipt of the Compliance Order.
We advise you not to pursue your complaint as the
same has no solid legal basis.
Article 97(f) of the Labor Code provides that the term
“Wage” includes the fair and reasonable value, as
determined by the Secretary of Labor and
Employment, of board, lodging, or other facilities
customarily furnished by the employer to the
employee.
“Facilities” is defined in the Section 5, Rule 7-A,
Book III of the Omnibus Rules Implementing the
Labor Code as articles or services for the benefit of
the employee or his family but shall not include tools
of the trade or articles or service primarily for the
benefit of the employer or necessary to the conduct of
the employer’s business.
Without a doubt, the rice provision is for your or your
family’s benefit. It must be noted also that in Millares
v. NLRC, G.R. No. 122827. March 29, 1999 the
Supreme Court ruled that in determining whether a
privilege is a facility, the criterion is not so much its
kind but its purpose.
We now proceed to the requirements of deductibility.
As provided in SLL International cables Specialist
v. NLRC, GR No. 172161, March 2, 2011, before
the value of facilities can be deducted from the
employees' wages, the following requisites must all
be attendant:
1. proof must be shown that such facilities are
customarily furnished by the trade;
2. the provision of deductible facilities must be
voluntarily accepted in writing by the employee; and
3.facilities must be charged at reasonable value.
In your case, all the elements for the deductibility are
present. First, you admitted that “Ganador” rice was

I was a marketing officer of a retail establishment
engaged in repair and retread services for used tires,
until I was offered by its owner to operate a tire and
retreading business, using the establishment's
business name and service system. Since the owner
would provide me with revolving funds I can use to
run the business subject to periodic liquidation, I
accepted the offer and quit my job.
In carrying out my undertaking, I abide with the
owner's dictated prices, and faithfully observe the
owner's prescribed quality of services and good
business practices. Out of my sales from this
business, I am required to deduct from the revolving
fund the expenses I spent with the balance thereof
representing my income. For the past eight months, I
noticed however that I was getting income way
below the monthly minimum wage in the region. I
intend to file a complaint against the owner for
underpayment of wages? Please advise.
customarily provided by your employer. Second, you
have accepted such provision in writing and
voluntarily. And finally, you have admitted that the
value of the rice is worth P150.00. To sum it up, the
total value of your daily wage is P400.00 which is
higher than the prevailing minimum wage which is
P366.00.
You are no longer an employee of the establishment.
When you agreed to operate a tire and retreading
business using the establishment’s business name,
you have in fact agreed to a franchise of business.
Your relationship with the establishment where you
were once an employee had substantially changed.
The tests for determining employer–employee
relationship are: (a) the selection and engagement of
the employee; (b) the payment of wages; (c) the
power of dismissal; and (d) the employer’s power to
control the employee with respect to the means and
methods by which the work is to be accomplished.
The last is called the “control test,” the most
important element.
The fact that abide with the owner's dictated prices,
and faithfully observe the owner's prescribed quality
of services and good business practices are not
indicative of employer-employee relationship. similar
Let us be guided by the case of Tesoro v. Metro
Manila Retreaders, G.R. No. 171482. March 12,
2014, a case akin to your situation, where the
Supreme Court ruled that:
“uniformity in prices, quality of services, and good
business practices are the essence of all franchises. A
franchisee will damage the franchisor’s business if he
sells at different prices, renders different or inferior
services, or engages in bad business practices. These
business constraints are needed to maintain collective
responsibility for faultless and reliable service to the
same class of customers for the same prices.”
In other words, this is not the “control” contemplated
in employer–employee relationships. Control in such
relationships addresses the details of day to day work
like assigning the particular task that has to be done,
monitoring the way tasks are done and their results,
and determining the time during which the employee
must report for work or accomplish his assigned task.
Further, you cannot use the revolving funds feature of
your agreement with the establishment. In the same
case cited above, the Supreme Court ruled that these
funds do not represent wages. They are more in the
nature of capital advances for operations
 conceptualized to attract prospective franchisees.
Income depended on the profits they make,
controlled by their individual abilities to increase
sales and reduce operating costs.
I am the owner of a large poultry farm in Batanes We advise you to pay the prevailing minimum wage
island. My farm can produce thousands of egg a day for non-agricultural work.
from chickens. I have ten (10) full time workers
whose main job involve processing the eggs, and “Agricultural work” as defined by Article 97(d) of
mixing it with milk, sugar and other ingredients using the Labor Code, means as including farming in all its
an automated machinery and kitchen equipment, and branches and, among other things, includes the
packing them into candies. I pay them the daily cultivation and tillage of soil, dairying, the
minimum agricultural wage rates applicable in the production, cultivation, growing and harvesting of
region. Did I act correctly? Please advise. any agricultural and horticultural commodities, the
raising of livestock or poultry, and any practices
performed by a farmer on a farm as an incident to or
in conjunction with such farming operations, but does
not include the manufacturing or processing of sugar,
coconuts, abaca, tobacco, pineapples or other farm
products.

Your employees here whose main job involve

processing the eggs, and mixing it with milk, sugar
and other ingredients using an automated machinery
and kitchen equipment, and packing them into
candies are in fact performing industrial work. Their
activities are not incidental to ordinary farming
operations specifically the raising of livestock or
poultry.

The distinction between agricultural and non-

I own a bottling company, which manufactures
containers for juices. One department I have involves
the manual cleaning and inspection of bottle
containers. I pay the workers the daily minimum
wage for an 8 hour of work. However, I noticed that
my workers are less productive since they can only
clean and inspect an average of 250 containers in a
normal work day. Can I change my method of fixing
compensation without violating any law? Please
advise.
agricultural work is important as the minimum wage
prescribed for agricultural work is generally lower
than that prescribe for non-agricultural work. By
using the minimum wage for agricultural work in
paying your employees, there is in effect
underpayment. We encourage you to comply with
our labor laws and prevailing labor-related issuances
for the good of both you and your employees.
Management is free to regulate, according to its own
discretion and judgment, all aspects of employment,
including hiring, work assignments, working
methods, time, place, and manner of work, processes
to be followed, supervision of workers, working
regulations, transfer of employees, work supervision,
lay-off of workers, and discipline, dismissal and
recall of workers. In Peckson vs. Robinsons
Supermarket Corp., GR No. 198534, July 3, 2013,
the Supreme Court discussed that the only limitations
to the exercise of this prerogative are those imposed
by labor laws and the principles of equity and
substantial justice.
Courts generally uphold the exercise of management

Our company’s business is in real estate. Recently,
we received several claims for payment of overtime
pay, premium and holiday pay from 10 licensed and
registered real estate brokers who were responsible in
the advertisement and negotiation for the sale of our
2hectare commercial land in Carbon, Cebu City. We
already paid these brokers their commissions and
this, we were surprised why they made these
additional claims against the company. May we
request your opinion and advise as regards the claims
made?
I received a complaint from my construction workers
for alleged illegal deduction of wages. In particular,
they accuse my company that the value of the meals
and lodging which we provide them within the
construction site to enable them to be available at
anytime while construction activities are going on,
should not have been deducted from their wages. Can
you please advise us if the complaint has basis? And
secondly, can you advise us of the potential liability
of the company, if any?
prerogatives when done in good faith for the
advancement of the employer's interest and not for
the purpose of defeating or circumventing the rights
of the employees under special laws or under valid
agreements. Even as the law is solicitous of the
welfare of the employees, it must also protect the
right of an employer to exercise what are clearly
management prerogatives.
To us, fixing the method of compensation necessarily
falls under the management prerogative. Changing of
the method of fixing compensation especially for the
purpose of productivity of workers is neither arbitrary
nor whimsical. However, in doing so, you must take
note that the wage rate you are to pay to your
employees should not fall below the prescribed
minimum wage.
You may avail of the provision under DO No. 125-13
or the REVISED GUIDELINES ON THE
CONDUCT OF TIME AND MOTION STUDY.
Sec. 4, Rule 1 of said guidelines provides that Daily
rate workers may also be covered but only for
purposes of setting standards for work improvement
and productivity. You may file an application for the
conduct of time and motion study with RTWPB
having jurisdiction of the workplace. (not sure)
Under Sec. 32 of RA 9646 also known as the "Real
Estate Service Act of the Philippines" a corporation
or partnership may hire the services of registered and
licensed real estate brokers, appraisers or consultants
on commission basis to perform real estate services
and the latter shall be deemed independent
contractors and not employees of such corporations.
There is no need to belabor the elements of
employer-employee relationship as the law itself
provides that the hiring of services of the registered
or licensed real estate brokers do not create
employer-employee relationship. The real estate
broker is an independent contractor, ths the
relationship is governed by the Civil Code and the the
Labor Code.
Yes, the complaint of your workers has basis under
our labor laws and jurisprudence. “Facilities” is
defined in the Section 5, Rule 7-A, Book III of the
Omnibus Rules Implementing the Labor Code as
articles or services for the benefit of the employee or
his family but shall not include tools of the trade or
articles or service primarily for the benefit of the
employer or necessary to the conduct of the
employer’s business.
In Millares v. NLRC, G.R. No. 122827. March 29,

I am the owner of a coconut plantation. For the past
two years, I have an arrangement with two residents
near the plantation, where I divided my property
between the two and entrusted each one of them to
take care of the land, remove the weeds near the
trees, fumigate the trees and prevent strangers from
taking the coconuts. I pay these two residents 1/5 of
the total coconut harvest I make from the area
entrusted to them. Yesterday, I received a complaint
from one of the residents, claiming payment of his
wages for the past two years. Please advise.
If these crew were to question the policy, which has
jurisdiction, and why? Please advise
15. My restaurant establishment was visited by a DOLE labor law compliance officer last week, who told me it
was a compliance visit due to a complaint filed by one of the waiters. I was served a Notice of Results, finding
violation of non-payment of overtime pay, premium pay and holiday pay for the past 2 years. I cannot
1999 the Supreme Court ruled that in determining
whether a privilege is a facility, the criterion is not so
much its kind but its purpose. The same tenor was
the ruling of the Supreme Court SLL
INTERNATIONAL CABLES SPECIALIST V.
NLRC, GR No. 172161, March 2 2011, where it
discussed that the benefit or privilege given to the
employee which constitutes an extra remuneration
above and over his basic or ordinary earning or wage
is supplement; and when said benefit or privilege is
part of the laborers' basic wages, it is a facility. The
distinction lies not so much in the kind of benefit or
item (food, lodging, bonus or sick leave) given, but in
the purpose for which it is given.
In your case, the meals and lodging you provide, as
you have admitted, is for the purpose of making your
workers available anytime while the construction
activities are going on. The obvious implication of
this is that your provisions are for your benefit as
employer hence, the same does not fall under the
definition of the term facilities.
As for your potential liability, we are still guided by
the case of SLL INTERNATIONAL CABLES
SPECIALIST V NLRC, your workers are entitled to
wage differentials.
The two residents have no right to the payment of
wages.
The regular court has jurisdiction over this case as the
2 residents you have entrusted to take care of your
land are considered independent contractors.
In a plethora of cases, The Supreme Court has
repeatedly held that in determining the existence of
an employer-employee relationship, this Court has
generally relied on the four-fold test, to wit: (1) the
selection and engagement of the employee; (2) the
payment of wages; (3) the power of dismissal; and
(4) the employer's power to control the employee
with respect to the means and methods by which the
work is to be accomplished. Among the four, the
most determinative factor in ascertaining the
existence of employer- employee relationship is the
"control test”
In this case, what you have here is only the control
over the result which is the accomplishment of your
assigned task but you have no control over nor did
you reserve to control the means, manner, method of
the assigned tasks are to be accomplished.
understand such violation because I have a payroll for the past 2 years which clearly indicated that all my
waiters were paid these labor standards, as in fact, I have proof both documentary and testimonial that they
actually received payment. I would like to seek your urgent legal advice and guidance on the complaint filed
and how to address it.

ANSWER:

Under Article 128 of the Labor Code, the proper recourse of the employer with regard to the visitorial and
enforcement power of the Secretary of Labor and Employment or his duly authorized representative is to
contest the findings of the labor employment and enforcement officer and raise issues supported by
documentary proofs which were not considered in the course of inspection.

Moreover, under Rule VI, Section 2, par. d.2 of D.O. No. 131-B, if the employer disagrees with the findings of
the labor law compliance officer, he shall note his comments in the Notice of Results before affixing his
signature.

Thus, it is our legal advice to you that the proper way to address your concern is to contest the findings of the
labor law compliance officer by raising the issue that all of your waiters were already paid these labor standards
and present your documentary and testimonial proofs which were not considered in the course of inspection
such as the payroll for the past 2 years which indicated such fact. We advise you to make such contest at the
earliest time possible to the Regional Director of the DOLE after the receipt of the Notice of Results.

16. In Batanes island, I own a 200 square meter warehouse where I employ families in one small remote
barangay and supply them with clothing materials to make embroideries using seashells and organic materials. I
need your advice whether I need to pay them the prescribed minimum wages?

ANSWER:

Yes, you need to pay them the prescribed minimum wages.

Under Article 98 of the Labor Code, persons working in their respective homes in needle work are not covered
by the minimum wage by operation of law.

In this case, although your workers are engaged in embroideries using seashells and organic materials which
can be classified as needlework, they are however working in your own warehouse and not in their respective
homes.

Thus, you need to pay them the prescribed minimum wages because the exemption under Article 98 of the
Labor Code does not apply.

18. My restaurant establishment was visited by a DOLE labor law compliance officer (LLCO) last week to
conduct a Joint Assessment. During such visit, the LLCO told me I have to pay my Chief Cook overtime pay
since the daily time record of this manager would show that he works regularly an average of 10 to 12 hours
daily, for the past 3 years. When I disagreed, I was served by the Regional Director/DOLE of a Notice of
Results, finding violation of non-payment of overtime pay. Please advise.

ANSWER:

Your Chief Cook is not entitled to overtime pay. We advise you to contest the findings of the labor law
compliance officer and raise issues supported by documentary proofs which were not considered in the course
of inspection. You should make such contest at the earliest time possible to the Regional Director of the DOLE
after the receipt of the Notice of Results.
Under Article 82 of the Labor Code, managerial employees are exempted from overtime pay. They are
exempted because they are not usually employed and paid by the hour. Their compensation is determined by
their special training, experience or knowledge, which requires the exercise of discretion and independent
judgment; or performs work related to management policies and general business operations along specialized
or technical lines.

In this case, since your Chief Cook is a managerial employee, he is not entitled to overtime pay even if he
works regularly an average of 10 to 12 hours daily.

20. I own a fleet of taxi cabs. And I employ drivers whose arrangement with me is to use the taxi cabs for 24
hours at anytime of the day and night except Monday, and I pay them 20% of the gross proceeds earned. I got a
claim from one of the drivers for payment of overtime pay. Please advise.

ANSWER:

The drivers are not entitled to overtime pay.

Under 82 of the Labor Code, field personnel are exempted from overtime pay. Field personnel refer to non-
agricultural employees who regularly perform their duties away from the principal place of business or branch
office of the employer and whose actual hours of work in the field cannot be determined with reasonable
certainty.

In this case, the drivers are considered as field personnel. They regularly perform their duties away from your
principal place of business or branch office and that their actual hours of work in the field cannot be determined
with reasonable certainty considering that they use the taxi cabs for 24 hours at anytime of the day and night
except Monday. They are not subject to your personal supervision and that you have no way of knowing the
exact number of hours they are working in a day.

Thus, drivers are not entitled to overtime pay for being field personnel.

23. I have been in the show business for so many years. And my make-up artist and hairdresser who has been
my childhood friend works exclusively for me in Cebu City. During the week, when I have some performances
or events to attend to, he has to work for 10 hours daily. However, when there no events, he only works for one
to two hours, and there are also days when he does not work at all. In spite the irregular schedule, I pay him a
fixed weekly wage of Php2,000.00. Yesterday, he confronted me about his pay. Please advise.

ANSWER:

Your make-up artist and hairdresser did not act correctly in confronting you about his pay.

Under Art. 97 (f) of the Labor Code, the method of fixing wages may be fixed or ascertained on a time, task,
piece, or commission basis, or other method of calculating the same. Such is a management prerogative.

Moreover, under Article 82 of the Labor Code, the minimum labor standard benefits are not applicable to
persons in the personal service of another. These refer to those who minister to the personal comfort,
convenience or safety of the employer as well as the members of the employer’s household.

In this case, your make-up artist and hairdresser is paid a fixed weekly wage of Php2,000.00. Such is a valid
method of fixing his wage as an exercise of your management prerogative as long as it does not fall below the
prescribed daily minimum wage. In fixing the amount of his wage, it is also worthy to consider the principle of
“fair day’s wage for a fair day’s labor” considering that when there no events, he only works for one to two
hours, and there are also days when he does not work at all.

Moreover, your make-up artist and hairdresser is considered as a person in the personal service of another
because by the nature of his job, he ministers to your personal comfort and convenience. Thus, he is not entitled
to the minimum labor standard benefits under the Labor Code particularly overtime pay for working beyond 8
hours on some days.
 [1] QUESTION

My establishment engaged in the manufacture of soft drink bottles was visited by the DOLE for the
conduct of a compliance visit. I then learned from the DOLE Labor Law Compliance Officer that there was
one worker who was working with my company for the past 10 years until his resignation last month who
lodged a complaint with the DOLE for underpayment of wages amounting to Php5,000. In spite my
explanation that this former worker was merely disgruntled, the DOLE Labor Law Compliance Officer
("DOLE LLCO") issued me the Notice of Results. Did the DOLE LLCO act correctly? Please advise.

Answer:

The LLCO did not act correctly. The Visitorial and enforcement power that may be exercised by the
Regional Director or his representative through the conduct of a compliance visit requires that an
employer-employee relationship still exists at the time the complaint is presented. Such requirement is
clearly provided in Art. 128 (b) of the Labor Code.

Art. 128(b)

b. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where
the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to issue compliance orders to give effect to the labor
standards provisions of this Code and other labor legislation based on the findings of labor employment
and enforcement officers or industrial safety engineers made in the course of inspection.

In the case at hand, the worker is no longer an employee of the company at the time the compliance visit
was conducted. Thus, the LLCO did not act correctly in issuing the Notice of Results since under the present
rules, the Regional Director or his duly authorized representatives can exercise both Visitorial and
enforcement power provided that there still exists an employer-employee relationship.

[2] QUESTION

My establishment is engaged in the manufacture of beer products. I have rank-and-file employees in my

factory. Six months after, I granted a daily wage adjustment to these factory workers from Php366 to
Php400. Their fellow rank-and-file workers in the administrative department who were paid the
prescribed daily minimum wage, however, complained of wage distortion since no similar increase was
given to them. Do these workers have a valid grievance? Why or why not? Please advise.

ANSWER:

No wage distortion.

Elements lacking:

a) increase due to a prescribed law or wage order

b) existence of the distortion in the same region of the country

Basis: Art. 124 (LC) as amended by RA6727, Bankard Employees Union-Workers Alliance Trade Unions v
NLRC (2004)

[4] QUESTION

Due to Wage Order No. 20 issued in Region VII, my furniture establishment was visited by the DOLE for
the conduct of a joint assessment. In the course of such assessment, I was found by the DOLE Labor Law
Compliance Officer to be paying my rank-and-file piece rate workers only Php15 for every piece of chair
produced which is way below the prescribed daily minimum wage, and thus, advised to pay the wage
difference. However, I have a facility valuation from the RTWPB to prove that the meals I provide these
workers during lunch were duly approved, thereby making their daily wages twice the prescribed daily
minimum wage. Do I need to comply? Why or why not? Please advise.
ANSWER:

You need not comply with paying the wage difference at this stage. Instead, D.O. 131-B-16 is instructive
on the course of action that you should take. It provides for the procedures to be taken after joint
assessment has been conducted. Particularly, Rule v, Sec. 4, para. d, subparagraph d.1. governs Non-
Compliant Establishments, viz:

If he e ab i h e i f d -compliant, the LLCO shall issue a Notice of Result to the

representatives of the employer and the employees, and the sole and exclusive bargaining agent,
if organized, indicated therein the ed deficie cie

This said Notice of Result contained the wage deficiencies that were assessed against you payable to your
employees. The D.O. provides that you or your representative who disagrees with the findings may note
your comment on the NR before affixing your signature. You must note in the NR your disagreement as
regards said wage deficiencies stating there that you have a facility valuation which forms part of your
e ee a a

The next step is the conduct of a Mandatory Conference. Under Rule XII, Sec. 1. of the said Department
Order, a mandatory conference shall be conducted after the lapse of the twenty (20) days period of
correction for general labor standards deficiencies arising from Joint Assessment. During the mandatory
conference, you may present your facility valuation as proof that you are not liable to the wage difference
as assessed by the DOLE LLCO.

Within 10 days after the termination of the mandatory conference, the Hearing Officer shall submit
his/her recommendation for the disposition of the labor standards case. Accordingly, the Regional
Director shall issue the corresponding compliance Order within 10 from receipt of the aforesaid
recommendation.

If you will be issued a Compliance Order, you may file an appeal to the Office of SOLE by filing a
Memorandum of Appeal, furnishing the other party with a copy of the same, within 10 days from receipt
thereof, based on the grounds provided under the said Department Order.

[6] QUESTION

I worked as a regular utility worker for a businessman in Lapu-Lapu City who own a large rice mill.
Customarily, I am paid a daily cash wage of Php250.00 plus daily wage in kind consisting of 5 kilos of
"Ganador" rice worth Php150.00, the value of which I have accepted in writing. I am planning to file a
complaint against my employer for wage underpayment since my daily cash wage is way below the
prescribed minimum wage. Do I have solid legal basis to pursue my complaint? Please advise

ANSWER:

As to your inquiry, we advise you not to pursue your complaint, as it does not have any solid legal basis.
As a general rule, wages are payable in cash. However, there is an exception where the wage is payable
partly in cash and partly in kind.

Faci i ie i defi ed i he Sec i R e -A, Book III of the Omnibus Rules Implementing the Labor
C de a a ic e e ice f he be efi f he e ee hi fa i b ha i c de f he
trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the
e e b i e A ided f i he Lab C de if a e a ifie a faci i ie i f a f
the wages of the employee, and as such, the reasonable value thereof may be deducted from the
e ee age

It is well-settled that in order for payment to qualify as facilities and be considered as an integral part of
a e ee age he f i g e iie be e e
 1. It must be customarily furnished by the employer to the employee;
2. It must be charged at a fair and reasonable value; and
3. The provision on deductibility must be voluntarily accepted by the employee in writing.

I ca e he a e i ki d a ifie a faci i ie beca e i i a e e e ece a f a d

fa i e i e ce a d b i e ce A i a i fies all the requisites in order for a facility to be wage-
ded c ib e Si ce he dai age i ki d c i i g f ki f Ga ad ice hP i c ai
furnished by your employer and you have accepted the value of such in writing, the fair and reasonable
value thereof can be charged and deducted from your wage. Therefore, finding no legal basis, we advise
that you do not pursue your complaint, as your daily wage does not fall below the prescribed minimum
wage and the payment in kind qualifies as facilities and forms part of your daily wage of P400.00.

[7] QUESTION

I was a marketing officer of a retail establishment engaged in repair and retread services for used tires,
until I was offered by its owner to operate a tire and retreading business, using the establishment's
business name and service system. Since the owner would provide me with revolving funds I can use to
run the business subject to periodic liquidation, I accepted the offer and quit my job.

In carrying out my undertaking, I abide with the owner's dictated prices, and faithfully observe the owner's
prescribed quality of services and good business practices. Out of my sales from this business, I am
required to deduct from the revolving fund the expenses I spent with the balance thereof representing
my income. For the past eight months, I noticed however that I was getting income way below the monthly
minimum wage in the region. I intend to file a complaint against the owner for underpayment of wages?
Please advise.

ANSWER:

In response to your inquiry, we strongly advise you to file a complaint to protect your rights as a worker.

Given that you did not state the exact amount of the monthly-wage you have been receiving for the past
8 months, we would like to inform you of the Cebu City standing basic wage of P366/Day for non-
aggricultural work.

As a worker, you have a right to a Living Wage, under Section 3, Article 8 of the 1987 Constitution. This
means that you are entitled to an amount of family income needed to provide for the family's food and
non-food expenditures with sufficient allowance for savings/investments for social security so as to enable
the family to live and maintain a decent standard of human existence beyond mere substinence level,
taking into account all of the family's psychological, social and other needs.

The Law protects workers Mr. Dela Cruz, to not only receive wages for mere day-to-day survival but for
more. The manner of work that you are undertaking as of the moment is not fair labor but is what we call
a "sweating system" which means you are being exploited as workers with wages so low as to be
insufficient to meet the bare cost of living.

Lastly, Article 113 of the Labor Code of the Philippines states that;

"No employer, in his own behalf or in behalf of any person, shall make any

deduction from the wages of his employees except;

1.) as payment for premium on the insurance

 2.) Union Dues with the authorized consent in writing of the employee
3.) Deductions authorized by law.

As your situation is not among those listed, the deduction of the employer from your wages is unlawful.

[8] QUESTION

I am the owner of a coconut plantation. During the harvest season, I employ workers to harvest fresh
coconuts. While at the farm, these workers break the coconut shells, remove the meat from the shells,
dry the shells and place the dried copras in sacks of one hundred kilos each to be transported and sold
later to public markets. I pay my workers the daily minimum agricultural rates but they protested and
claim they are into processing of coconuts into copra, which involves non-agricultural work. Please advise.

ANSWER:

To answer your predicament, you need to understand the nature of the work that your farm workers are
engaged in. In your point of view, you consider their work to be agricultural and in so considering, are
paying them the minimum agricultural rates. On the other hand, they think that they should be paid the
non-agricultural wage rates as they are engaged in processing of coconuts into copra.

T hed igh hi a e ec he Lab C de A ic e d defi e ag ic e a i c di g

farming in all its branches and, among other things, includes the cultivation and tillage of soil, dairying,
the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the
raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in
conjunction with such farming operations, but does not include the manufacturing or processing of sugar,
coconuts, abaca, tobacco, pineapples or other farm products.

The above-stated provision clearly cites the manufacturing of coconuts as not falling under the term
ag ic e Ba ed de c i i f he k ha he d i e b eaki g c c he e i g
meat from the shells, and placing dried copras in sacks), it involves the processing of coconuts and is
he ef e e c ded f he e ag ic e

It is also important for you to understand that different minimum wage rates apply to different types of
work. Since it has already been established tha he a e f fa ke j b i -agricultural,
they must be paid with the minimum wage rates for non-agriculture work.

[9] QUESTION

I am the owner of a large poultry farm in Batanes island. My farm can produce thousands of egg a day
from chickens. I have ten (10) full time workers whose main job involve processing the eggs, and mixing
it with milk, sugar and other ingredients using an automated machinery and kitchen equipment, and
packing them into candies. I pay them the daily minimum agricultural wage rates applicable in the region.
Did I act correctly? Please advise.

ANSWER

Unfortunately, your act of paying your 10 full-time workers the daily minimum agricultural wage rates is
c ec Thi i beca e Ag ic a k a defi ed b Article 97(d) of the Labor Code, means the
raising of livestock or poultry and other chores incidental to ordinary farming operations. In your case,
even if you are engaged in a poultry farm, your employees are not performing chores incidental to
ordinary farming operations specifically the raising of livestock or poultry as they are performing industrial
work.
 I d ia W k i e f ed he he ha e a e processed into finished product or transformed to
another product. In relation to your case, your workers are involved in processing the eggs and mixing it
with milk, sugar, and other ingredients using an automated machinery and kitchen equipment and packing
them into candies. Therefore, your workers are engaged in industrial work.

This differentiation is important because the agricultural is generally lower than the industrial pay rate.
Because of this, you appear to be underpaying your employees.

In conclusion, we advise you to pay them at least the daily industrial minimum wage rates.

[10] QUESTION

I own a bottling company, which manufactures containers for juices. One department I have involves the
manual cleaning and inspection of bottle containers. I pay the workers the daily minimum wage for an 8
hour of work.However, I noticed that my workers are less productive since they can only clean and inspect
an average of 250 containers in a normal work day. Can I change my method of fixing compensation
without violating any law? Please advise.

ANSWER:

Yes, you can change your method of fixing compensation without violating any law. In the facts presented,
your employees are classified as daily-paid employees. Under the R.A. 6727 or the Wage Rationalization
Act, the employer can pay its employees any amount provided that it does not fall below the prescribed
minimum wage.

Considering your predicament involves slack in demand, there is a remedy provided under the Labor Code.
The remedies are as follows: (1) compressed workweek; (2) reduce working days; (3) temporary
suspension of operation of not more than 6 months. You can avail any of those as you deemed sufficient.

[11] QUESTION

O c a b i e i i ea e a e Rece e ecei ed e e a claims for payment of overtime

pay, premium and holiday pay from 10 licensed and registered real estate brokers who were responsible
in the advertisement and negotiation for the sale of our 2hectare commercial land in Carbon, Cebu City.
We already paid these brokers their commissions and this, we were surprised why they made these
additional claims against the company. May we request your opinion and advise as regards the claims
made?

ANSWER

The claims made by the real estate broker should not be granted. The contractual relationship between
you and the 10 real estate brokers is a principal-contractor relationship, and is not covered under our
labor laws, but is found in the Civil Code. This kind of contractual relationship means that you as the
principal are not in control over the means, manner, and method as to how the work is to be done, and
under the Civil Code, you as the principal may only control the results thereof. The power over the means,
manner, and method as to how to conduct the work is an essential element in an employer-employee
relationship, that of which is absent here. In the said relationship, the employee here would then be
entitled to overtime time pay, premium pay, and holiday pay.

To sum up our advice, the 10 real estate brokers here are not entitled to overtime pay, premium pay, and
holiday pay since such benefits are merely reserved exclusive for employees under an employer-employee
relationship.

[12] QUESTION

I received a complaint from my construction workers for alleged illegal deduction of wages. In particular,
they accuse my company that the value of the meals and lodging which we provide them within the
construction site to enable them to be available at anytime while construction activities are going on,
should not have been deducted from their wages. Can you please advise us if the complaint has basis?
And secondly, can you advise us of the potential liability of the company, if any?

ANSWER

This is in relation to your query on the complaint of your construction workers for the alleged illegal
deduction of wages from the lodging and meals that you provided them.

Under Article 113 of the Labor Code on Wage Deduction, it is said that no employer, in his own behalf or
in behalf of any person, shall make any deduction from the wages of his employees subject to certain
exceptions. One exception pertains to cases where the employer is authorized by law or regulations issued
by the Secretary of Labor and Employment. Deduction for value of meals and other facilities is an example
of a deduction authorized by law.

However, it is very important to revisit Department Order No. 126-13 Series of 2013 or the Revised
Guidelines on the conduct of Facility Evaluation. Under the said guidelines, facilities, which is part and
deductible from the wage, was distinguished from supplements, which is not wage deductible and
independent of the wage. As defined, facilities refer to articles or services provided by the employer for
the benefits of the employee or his/her family but shall not include tools of the trade or articles or services
i a i f he be efi f he e e ece a he c d c f he e e b i e Mea
and housing for dwelling purposes are generally considered as facilities.

In order that the fair and reasonable value of the facilities may be deducted from the wages of the
employees. The following requisites must concur:

a. Facilities subject of valuation are customarily furnished by the employer to the employee.
b. Facilities must be charged at a fair and reasonable value.
c. Deductibility of the value of the facilities must be voluntarily accepted in writing by the employee.

In your case, food and lodging are not considered facilities but supplements. A benefit or privilege granted
to an employee for the convenience of the employer is not facility. The criterion in making a distinction
between facilities and supplements does not so much lie in the kind but the purpose. Considering
therefore that your company provided you meals and lodging within the construction site to enable the
ke be a ai ab e a a i ef c c i ac i i ie a e g i g i ca be aid ha he ke
availability is a necessary matter in the construction operations and is beneficial to the employer. The
meals and lodging in your case should be considered as a supplement and should not be deducted from
your wage.

For the liability, your company will need to compensate the amount withheld form the employees subject
to interest.
 [13] QUESTION

I just got myself employed in a call center as technical operator. During the orientation, I was informed of
a company policy which provides for an early retirement incentive package as follows:

xxx 1. For those who have reached 40 years old 5 months incentive pay

2. For those who have reached 45 years old 3 months incentive pay

3. For those who have reached 50 years old No incentive pay

I need your opinion and advice if the above employment policy is valid or not.

ANSWER

The policy is valid. Company management is in the position to prescribe the rules as to the early retirement
incentive package. It may choose he age for the retirement and the incentive it would give, provided that
it is in accordance with your collective bargaining agreement. Your consent based on your independent
judgment to the agreement is the final say.

[14] QUESTION

I am the owner of a coconut plantation. For the past two years, I have an arrangement with two residents
near the plantation, where I divided my property between the two and entrusted each one of them to
take care of the land, remove the weeds near the trees, fumigate the trees and prevent strangers from
taking the coconuts. I pay these two residents 1/5 of the total coconut harvest I make from the area
entrusted to them. Yesterday, I received a complaint from one of the residents, claiming payment of his
wages for the past two years. Please advise.

ANSWER

The two residents have no right to claim for their respective wages, under Article 98 of our Labor Code,
wages shall not apply to farm tenancy or leasehold, domestic service and persons working in their
respective homes in needle work or in any cottage industry duly registered in accordance with law.

Since your industry is under Farm tenancy or leasehold in accordance with RA 1199, tenancy exist
whenever two persons agree on a joint undertaking for agricultural production wherein one party
furnishes the land and the other is his labor, and the produce thereof to be divided between the
landholder and the tenant in proportion to their respective contributions.

The 1/5 of coconut harvest that you have paid for two years will be their proportion to their respective
contribution of the work done, therefore you no longer have to pay them for wages.

[15] QUESTION

My restaurant establishment was visited by a DOLE labor law compliance officer last week, who told me
it was a compliance visit due to a complaint filed by one of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay, premium pay and holiday pay for the past 2 years. I
cannot understand such violation because I have a payroll for the past 2 years which clearly indicated that
all my waiters were paid these labor standards, as in fact, I have proof both documentary and testimonial
that they actually received payment. I would like to seek your urgent legal advice and guidance on the
complaint filed and how to address it.
ANSWER:

In view of the foregoing, the correct way to address your query is to contest the Notice of Inspection
Results and present the documentary proofs i.e. the payroll you mentioned that proves you have paid
correctly, copies of their employment contracts, and to have your waiters put their testimonies under
oath in an affidavit stating that you have made such payments for the past two years as required by
Section 6 of Rule X, Book III, of the Labor Code.

Please be advised that we have to submit our contest of the Notice of Inspection Results with all our
documentary proof of your compliance from the date you have received such Notice at earliest to the
Regional Director of the DOLE or during the hearing of the case at the latest.

[16] QUESTION

In Batanes island, I own a 200 square meter warehouse where I employ families in one small remote
barangay and supply them with clothing materials to make embroideries using seashells and organic
materials. I need your advice whether I need to pay them the prescribed minimum wages?

ANSWER

Under Art. 98 of the Labor Code, one of the exemptions for the non-payment of the prescribed minimum
wage are those persons working in their respective homes in needle work.

In your case, although your business is engaged in clothing materials to make embroideries using seashells
and organic materials, which in nature is involved in needlework, the law provides that for the exemption
for the payment of prescribed minimum wage to apply, the persons or employees must be working in
their respective homes.

Since your employees are working in your own warehouse and not in their respective homes, the
exemption for the prescribed minimum wage is not applicable.

Hence, you are obliged to comply with the prescribed minimum wage.

[17] QUESTION

On the occasion of a big fire in Mandaue City area two years ago, some personnel of a private non-
governmental organization which is funded by private donations had to work an average of 12 hours a
day, sometimes continuously to assist our firemen. Some of these personnel filed a claim for overtime
compensation. However, each claim did not exceed Php5,000.00. Will these claims prosper?

ANSWER

The firemen can validly claim for overtime compensation.

Under Article 87 of the Labor code overtime work is work performed beyond 8 hours a day and an
overtime work is an additional compensation equivalent to his regular wage.

no employee shall be made to work more than 8 hours a day against his will but this rule is not absolute,
any worker can also be compelled to work under compulsory overtime work under article 89 of the Labor
code
U de b a ag a h b he i i ece a e e f ife e i ca e f i i e da ge
to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire,
flood, typhoon, earthquake, epidemic, disaster or calamity

Under this rule employer should pay his workers to render overtime work so they are entitled to overtime
pay.

Follow up question:

But the employer is the Bureau of Fire Protection? Will it not matter?

Answer:

The Bureau of Fire is not the employer of those personnel who assisted the firemen but the private non-
governmental organization.

Under article 82 of our labor code, overtime compensation shall apply to all establishments and
undertakings whether for profit or not, but not to government employees, managerial employees, field
personnel, members of the family of the employer who are dependent on him for support, domestic
helpers, persons in the personal service of another, and workers who are paid by results.

In this case, considering that the employer is the non-governmental organization, the personnel are still
entitled with overtime compensation.

[18] QUESTION

My restaurant establishment was visited by a DOLE labor law compliance officer (LLCO) last week to
conduct a Joint Assessment. During such visit, the LLCO told me I have to pay my Chief Cook overtime pay
since the daily time record of this manager would show that he works regularly an average of 10 to 12
hours daily, for the past 3 years. When I disagreed, I was served by the Regional Director/DOLE of a Notice
of Results, finding violation of non-payment of overtime pay. Please advise.

ANSWER:

You can validly contest or question the Notice Results served by the DOLE to you. DOLE made a mistake
when it found you in violation of the non-payment of Overtime pay of your Chief Cook who is a managerial
employee of your restaurant. Since, under our labor laws, managerial employee is among those
employees exempted from Overtime pay.

But, you can only contest the NR within 20 days from when you received the NR. It is the prescribed period
to correct deficiencies arising from Joint Assessments and it is non-extendible. Otherwise, if you fail to
contest the NR within the prescribed 20 days period, the deficiencies not corrected will be docketed as a
Labor Standards Case.

There will then be a mandatory conference held within 10 days from the lapse of the period of correction
which shall last for a period not exceeding 30 days reckoned from the date of the first conference. 10 days
after the termination of the mandatory conference, the Hearing officer will then submit his/her
recommendation on the disposition of the Labor Standards Case.

Accordingly, the Regional Director will issue either a (1) Compliance Order or a (2) Order dismissing the
case.
If there is still time left of the 20 day period for correction of the NR. You should take note that in
contesting the NR, issues raised must be accompanied with documentary proofs not verifiable during the
normal course of the inspection.

[19] QUESTION

I have been in the show business for so many years. And my childhood friend works exclusively for me for
the past two years, doing all household chores. During weekend, he accompanies me when I have some
performances. Because of busy schedule, he was not able to use his leave benefit. Yesterday, he
demanded from me to pay him the cash equivalent of his unused leave benefits. Please advise.

ANSWER:

Let me commend you for bringing your concern up before taking any actions with respect to the request
of your friend.

First, let's check if he qualifies as a household helper under Batas Kasambahay (RA 10361) and if so, does
the said law allows the conversion of the accrued leave benefits into cash?

Under the said law, you friend is considered a household helper since he qualifies in the definition under
section 4 (d):

d D e ic ke Ka a baha efe a e e gaged i d e ic k i hi a

employment relationship such as, but not limited to, the following: general househelp, x x x but
shall exclude any person who performs domestic work only occasionally or sporadically and not
on an occupational basis.

In the case of your friend, he was employed by you to do all household chores. He does not perform the
work occasionally as in fact, he worked for exclusively for you for the past two years. Thus, he is convered
in the said law.

Unfortunately for your childhood friend, although he is entitled to leave benefits he is not allowed to
convert unused leaves to cash under Batas Kasambahay:

Under section 29 of the same law, "a domestic worker who has rendered at least one (1) year of service
shall be entitled to an annual service incentive leave of five (5) days with pay: Provided, That any unused
portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves
shall not be convertible to cash.

Hence, you are legally allowed to refuse to give him his accrued leave benefits for the last two (2) years.

[20] QUESTION

I own a fleet of taxi cabs. And I employ drivers whose arrangement with me is to use the taxi cabs for 24
hours at anytime of the day and night except Monday, and I pay them 20% of the gross proceeds earned.
I got a claim from one of the drivers for payment of overtime pay. Please advise.

[21] QUESTION
In my pharmaceutical company, two of my outside salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses and commission of 10% on all sales lodged a complaint for
payment of overtime pay, contending that they regularly devote as much as 12 hours a day to sales efforts,
which yield to much higher revenue to the company compared to their prescribed monthly quotas. Please
advise.

ANSWER:

Thank you for requesting our assistance regarding this matter.

No, the salesmen cannot be entitled to overtime pay as they claim to be. Article 82 *check daw if wala na
renumber* of the Labor Code provides for the right of employees to overtime pay, among others.

However, one exemption to the aforementioned provision, is a situation where the employee is a field
personnel.

Field personnel are employees who undertake their jobs, outside the principal place of business of the
employer and those whose working hours cannot be determined by reasonable certainty.

The reason why this type of employee is not included is that the basis of overtime pay, which is hours of
work, cannot be determined due to the lack of close or personal supervision of the employer.

Your employees, being outside salesmen are considered field personnel and consequently, since their
hours of work cannot be determined, they are exempted from the provision granting employees overtime
pay. There is no way that you, the employer, can ascertain the hours of work that your employees claim
to be serving. They are beyond your personal supervision.

[22] QUESTION

In my family-owned pharmacy, two of my unmarried adult children work full time as assistants, regularly
working an average of 15 hours daily, since they live with me and my wife in the same house. They are
paid a fixed monthlysalary which they share to the family upkeep. After they got married, one of the two
children sued me for non-payment of labor standards. Please advise.

ANSWER:

The suit against the parent for non-payment of labor standards shall not succeed. Article 82 of the Labor
Code provides that employees who are members of the family of the employer who are dependent on
him for support shall be exempted from the minimum labor standards benefits.

This case fits squarely with the requisites provided by Article 82. First, the party who filed the suit is the
child of the employer and second, the child who filed the suit was dependent on the employer for support
since he still live with his parents before he got married.

While the work done by the child is exempted from minimum labor standards benefits before he got
married, the work done by the child after he is emancipated by reason of marriage must be provided with
the minimum labor standards benefits. This includes night shift differential, overtime pay, holiday pay,
service incentive leave, and service charges.

[23] QUESTION

I have been in the show business for so many years. And my make-up artist and hairdresser who has been
my childhood friend works exclusively for me in Cebu City. During the week, when I have some
performances or events to attend to, he has to work for 10 hours daily. However, when there no events,
he only works for one to two hours, and there are also days when he does not work at all. In spite the
irregular schedule, I pay him a fixed weekly wage of Php2,000.00. Yesterday, he confronted me about his
pay. Please advise.

ANSWER:

Thank you for coming to our office for advice.

By looking at the facts surrounding your situation, your make-up artist and hairdresser can indeed be
considered an employee. In asserting this, we applied the two-tiered test enunciated by the Supreme
Cou i he ca e f F a ci c NLRC Thi e i e he ai ee e e c
the employee with respect to the means and methods by which the work is to be accomplished; and (2)
the underlying economic realities of the activity or relationship. ___________

However, he is considered as a person in the service of another contemplated under Art. 82 of the Labor
Code which are exempted from labor standard benefits. ___________ Hence, you are not required to pay
him the standard minimum wage. ________

[24] QUESTION

I am the President of a call center in Cebu City which caters to the needs of clients operating in various
time zones. As I am anticipating successive non-working special holidays due to the forthcoming APEC
conferences which will be held in Cebu, I am planning to operate for seven straight days starting on
Monday. After making an advance announcement of my plan, I was surprised to receive a protest letter
from fifty of my employees who are members of Iglesia Ni Kristo, informing me of their strong reservation
of making them work on Saturday, their scheduled rest days, which is also their day of worship. Do these
employees have legal basis for their protest? Kindly advise.

ANSWER:

Yes the 50 Iglesia ni Kristo employees have a legal basis for their protest.

Under the Labor Code (Article 91a), as a general rule, the employer has the prerogative in fixing the
schedule of the rest day of his employees subject to CBA and rules and regulation of the DOLE. However,
such general rule is subject to an exception under (Article 91b) that is if it is based on the religious grounds
f he e ee I he d he e e igh a d e ga i e i bjec he efe e ce i he
choice by the employee of his rest day based on religious grounds

However, there is exception to the abovementioned exception. The employer can compel the employees
to work on their preferred rest day despite their religious preference for setting such date as their rest
day if granting it would inevitably result in serious prejudice or obstruction to the operations of the
undertaking and the employer cannot normally be expected to resort to other remedial measures. In
which case, the employer can only compel these workers to work on their preferred rest day for only
twice a month.

In the case at bar, the President wanted the workers to work for 7 straight days to presumably compensate
for the successive non-working holidays due to the APEC conference. Fifty workers protested the plan of
the President. The president would have been able to compel these workers to work on their rest day
since it is his prerogative as President to set the schedule for the rest day. However, these fifty workers
are members of the Iglesia ni Kristo and they chose Saturday as their preferred rest day since it is the day
of worship for them.

The only way for the President to be able to compel these fifty workers to work on their preferred rest
day which they chose due to religious preferences is when allowing these 50 workers to not work on one
Saturday would result in serious prejudice or obstruction to the operations of the undertaking and the
employer cannot normally be expected to resort to to other remedial measures.
However, allowing 50 workers not to work on only one rest day which they prefer due to religious reasons
would hardly result to serious prejudice or obstruction to the operations of the undertaking of the
employer. To hold otherwise would be to assume that any establishment would suffer serious prejudice
or obstruction to its operations if the workers would not work for only one day, which in reality does not
happen. In fact, in this case, only 50 out of all the workers are asking not to work on their preferred rest
day, and operations will still go on since there are other workers that can be compelled to work on that
day, provided it is not their preferred rest day due to religious preference also.

On the other hand, remedial measures could normally be resorted to if 50 workers would not work in one
day. The president may ask his other workers whom he could still legally compel to work on Saturday to
do overtime to be able to compensate for the lost work due to the absence of 50 workers on that one
day.

[26] QUESTION

In my pharmaceutical company, two of my outside salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses, and commission of 10% on all sales, applied for retirement
although they were both below the retirement ages provided by law. In consideration of their 10 years of
loyal and dedicated service, I allowed them to retire and paid them 150% of their latest total salary. Two
months after, another salesman who has been employed only for two years likewise applied for
retirement, which I also granted but paid him only 100% of his latest total salary. This salesman now
complained that he was unjustly and unlawfully discriminated, anchoring his claim on company practice.
Does he have a valid cause of action? Why or why not. Please advise.

ANSWER:

No diminution of benefits since there is no company practice. So that the rule against diminution may
apply, it must be shown that

(1) the grant of the benefit is founded on a policy or has ripened into a practice over a long period;
(2) the practice is consistent and deliberate;
(3) the practice is not due to error in the construction or application of a doubtful or difficult question
of law; and
(4) the diminution or discontinuance is done unilaterally by the employer.
In this case, the benefit was only granted one by the employer once, in consideration for long
period of service.

[27] QUESTION

My establishment is engaged in the manufacture of beer products. I have rank-and-file employees in my

factory. Six months after, I granted a daily wage adjustment to these factory workers from Php366 to
Php400. Their fellow rank-and-file workers in the administrative department who were paid the
prescribed daily minimum wage, however, complained of wage distortion since no similar increase was
given to them. Do these workers have a valid grievance? Why or why not? Please advise.

ANSWER:

The workers have no valid grievance as there has no wage distortion that has happened.

Wage distortion, under article 124 of the Labor Code, means a situation where an increase in prescribed
wage results in the elimination or severe contraction of intentional quantitative differences in wage or
salary rates between and among employee groups in an establishment as to effectively obliterate the
distinctions embodied in such wage structure based on skills, length of service, or other logical bases of
differentiation.

Further, the Supreme Court, in Prubankers Association v. Prudential Bank, laid down the elements
comprising wage distortion:

1. An existing hierarchy of positions with corresponding salary rates;

2. A significant change in the salary rate of a lower pay class without a concomitant increase in the
salary rate of a higher one;
3. The elimination of the distinction between the two levels; and
4. The existence of the distortion in the same region of the country. Furthermore, the Supreme Court
in the same case also held that it is the hierarchy of positions and the disparity of their
corresponding wages and other emoluments that are sought to be preserved by the concept of
wage distortion.

In the case at bar, the two groups of employees are all rank-and-file employees. The only difference
between the two is that one group works in the factory, while the other is administrative in nature. Clearly,
there is no existing hierarchy of positions between the two. The elements, therefore, of a wage distortion
are not present in this case.

Finally, in Bankard Employees Union v. NLRC, the Supreme Court ruled that the compulsory mandate
under Article 124 of the Labor Code to correct wage distortion cannot be applied to voluntary and
unilateral increases by the employer, as in this case, because this is inherently a business judgment
prerogative.

[28] QUESTION (SAME QUESTION 1)

My establishment engaged in the manufacture of softdrink bottles was visited by the DOLE for the conduct
of a compliance visit. I then learned from the DOLE Labor Law Compliance Officer that there was one
worker who was working with my company for the past 10 years until his resignation last month who
lodged a complaint with the DOLE for underpayment of wages amounting to Php5,000. In spite my
explanation that this former worker was merely disgruntled, the DOLE Labor Law Compliance Officer
("DOLE LLCO") issued me the Notice of Results. Did the DOLE LLCO act correctly? Please advise.

Answer:

The LLCO did not act correctly. The visitorial and enforcement power that may be exercised by the
Regional Director or his representative through the conduct of a compliance visit requires that an
employer-employee relationship still exists at the time the complaint is presented. Such requirement is
clearly provided in Art. 128 (b) of the Labor Code.

Art. 128(b)

b. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where
the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly
authorized representatives shall have the power to issue compliance orders to give effect to the labor
standards provisions of this Code and other labor legislation based on the findings of labor employment
and enforcement officers or industrial safety engineers made in the course of inspection.

In the case at hand, the worker is no longer an employee of the company at the time the compliance visit
was conducted. Thus, the LLCO did not act correctly in issuing the Notice of Results since under the present
rules, the Regional Director or his duly authorized representatives can exercise both visitorial and
enforcement power provided that there still exists an employer-employee relationship.
 [29] QUESTION

I worked as a regular utility worker for a businessman in Lapu-Lapu City who own a large rice mill.
Customarily, I am paid a daily cash wage of Php250.00 plus daily wage in kind consisting of 5 kilos of
"Ganador" rice worth Php150.00, the value of which I have accepted in writing. I am planning to file a
complaint against my employer for wage underpayment since my daily cash wage is way below the
prescribed minimum wage. Do I have solid legal basis to pursue my complaint? Please advise

ANSWER

As to your inquiry, we advise you not to pursue your complaint, as it does not have any solid legal basis.
As a general rule, wages are payable in cash. However, there is an exception where the wage is payable
partly in cash and partly in kind.

Faci i ie i defi ed i he Sec i Rule 7-A, Book III of the Omnibus Rules Implementing the Labor
C de a a ic e e ice f he be efi f he e ee hi fa i b ha i c de f he
trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the
e e b i e A ided f i he Lab C de if a e a ifie a faci i ie i f a f
the wages of the employee, and as such, the reasonable value thereof may be deducted from the
e ee age

It is well-settled that in order for payment to qualify as facilities and be considered as an integral part of
a e ee age he f i g e iie be e e

1. It must be customarily furnished by the employer to the employee;

2. It must be charged at a fair and reasonable value; and
3. The provision on deductibility must be voluntarily accepted by the employee in writing.

I ca e he a e i ki d a ifie a faci i ie beca e i i a e e e ece a f a d

fa i e i e ce a d subsistence. Also, it satisfies all the requisites in order for a facility to be wage-
ded c ib e Si ce he dai age i ki d c i i g f ki f Ga ad ice hP i c ai
furnished by your employer and you have accepted the value of such in writing, the fair and reasonable
value thereof can be charged and deducted from your wage. Therefore, finding no legal basis, we advise
that you do not pursue your complaint, as your daily wage does not fall below the prescribed minimum
wage and the payment in kind qualifies as facilities and forms part of your daily wage

of P400.00.

[30] QUESTION

I was a marketing officer of a retail establishment engaged in repair and retread services for used tires,
until I was offered by its owner to operate a tire and retreading business, using the establishment's
business name and service system. Since the owner would provide me with revolving funds I can use to
run the business subject to periodic liquidation, I accepted the offer and quit my job.

In carrying out my undertaking, I abide with the owner's dictated prices, and faithfully observe the owner's
prescribed quality of services and good business practices. Out of my sales from this business, I am
required to deduct from the revolving fund the expenses I spent with the balance thereof representing
my income. For the past eight months, I noticed however that I was getting income way below the monthly
minimum wage in the region. I intend to file a complaint against the owner for underpayment of wages?
Please advise.

ANSWER
In response to your inquiry, we strongly advise you to file a complaint to protect your rights as a worker.

Given that you did not state the exact amount of the monthly-wage you have been receiving for the past
8 months, we would like to inform you of the Cebu City standing basic wage of P366/Day for non-
agricultural work.

As a worker, you have a right to a Living Wage, under Section 3, Article 8 of the 1987 Constitution. This
means that you are entitled to an amount of family income needed to provide for the family's food and
non-food expenditures with sufficient allowance for savings/investments for social security so as to enable
the family to live and maintain a decent standard of human existence beyond mere substinence level,
taking into account all of the family's psychological, social and other needs. The Law protects workers Mr.
Dela Cruz, to not only receive wages for mere day-to-day survival but for more. The manner of work that
you are undertaking as of the moment is not fair labor but is what we call a "sweating system" which
means you are being exploited as workers with wages so low as to be insufficient to meet the bare cost
of living.

Lastly, Article 113 of the Labor Code of the Philippines states that;

"No employer, in his own behalf or in behalf of any person, shall make any

deduction from the wages of his employees except;

1.) as payment for premium on the insurance

2.) Union Dues with the authorized consent in writing of the employee
3.) Deductions authorized by law.

As your situation is not among those listed, the deduction of the employer from your wages is unlawful.

Should you decide to pursue legal actions, our Law Firm is willing to aid you in the upholding of your rights.

[31] QUESTION

I am the owner of a coconut plantation. During the harvest season, I employ workers to harvest fresh
coconuts. While at the farm, these workers break the coconut shells, remove the meat from the shells,
dry the shells and place the dried copras in sacks of one hundred kilos each to be transported and sold
later to public markets. I pay my workers the daily minimum agricultural rates but they protested and
claim they are into processing of coconuts into copra, which involves non-agricultural work. Please advise.

ANSWER

To answer your predicament, you need to understand the nature of the work that your farm workers are
engaged in. In your point of view, you consider their work to be agricultural and in so considering, are
paying them the minimum agricultural rates. On the other hand, they think that they should be paid the
non-agricultural wage rates as they are engaged in processing of coconuts into copra.

T hed igh hi a e ec he Lab C de A ic e d defi e ag ic e a i c uding

farming in all its branches and, among other things, includes the cultivation and tillage of soil, dairying,
the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the
raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in
conjunction with such farming operations, but does not include the manufacturing or processing of sugar,
coconuts, abaca, tobacco, pineapples or other farm products.
The above-stated provision clearly cites the manufacturing of coconuts as not falling under the term
ag ic e Ba ed de c i i f he k ha he d i e b eaki g c c he e i g
meat from the shells, and placing dried copras in sacks), it involves the processing of coconuts and is
he ef e e c ded f he e ag ic e

It is also important for you to understand that different minimum wage rates apply to different types of
work. Since it has already been established that the nature of fa ke j b i -agricultural,
they must be paid with the minimum wage rates for non-agriculture work.

Thank you.

[32] QUESTION

I am the owner of a large poultry farm in Batanes island. My farm can produce thousands of egg a day
from chickens. I have ten (10) full time workers whose main job involve processing the eggs, and mixing
it with milk, sugar and other ingredients using an automated machinery and kitchen equipment, and
packing them into candies. I pay them the daily minimum agricultural wage rates applicable in the region.
Did I act correctly? Please advise.

ANSWER

Unfortunately, your act of paying your 10 full-time workers the daily minimum agricultural wage rates is
c ec Thi i beca e Ag ic a k a defi ed b A icle 97(d) of the Labor Code, means the
raising of livestock or poultry and other chores incidental to ordinary farming operations. In your case,
even if you are engaged in a poultry farm, your employees are not performing chores incidental to
ordinary farming operations specifically the raising of livestock or poultry as they are performing industrial
work.

I d ia W k i e f ed he he ha e a e ce ed i fi i hed d c a f ed
another product. In relation to your case, your workers are involved in processing the eggs and mixing it
with milk, sugar, and other ingredients using an automated machinery and kitchen equipment and packing
them into candies. Therefore, your workers are engaged in industrial work.

This differentiation is important because the agricultural is generally lower than the industrial pay rate.
Because of this, you appear to be underpaying your employees.

In conclusion, we advise you to pay them at least the daily industrial minimum wage rates.

[33] QUESTION

I own a bottling company, which manufactures containers for juices. One department I have involves the
manual cleaning and inspection of bottle containers. I pay the workers the daily minimum wage for an 8
hour of work. However, I noticed that my workers are less productive since they can only clean and inspect
an average of 250 containers in a normal work day. Can I change my method of fixing compensation
without violating any law? Please advise.

ANSWER
Yes, you can change your method of fixing compensation without violating any law. In the facts presented,
your employees are classified as daily-paid employees. Under the R.A. 6727 or the Wage Rationalization
Act, the employer can pay its employees any amount provided that it does not fall below the prescribed
minimum wage.

Considering your predicament involves slack in demand, there is a remedy provided under the Labor Code.
The remedies are as follows: (1) compressed workweek; (2) reduce working days; (3) temporary
suspension of operation of not more than 6 months. You can avail any of those as you deemed sufficient.

[34] QUESTION

Our company's business is in real estate. Recently, we received several claims for payment of overtime
pay, premium and holiday pay from 10 licensed and registered real estate brokers who were responsible
in the advertisement and negotiation for the sale of our 2 hectare commercial land in Carbon, Cebu City.
We already paid these brokers their commissions and thus, we were suprised why they made these
additional claims against the company. May we request for your opinion and advice as regards the claims
made?

ANSWER:

Our company's business is in real estate. Recently, we received several claims for payment of overtime
pay, premium and holiday pay from 10 licensed and registered real estate brokers who were responsible
in the advertisement and negotiation for the sale of our 2 hectare commercial land in Carbon, Cebu City.

FOLLOW UP QUESTION

We already paid these brokers their commissions and thus, we were suprised why they made these
additional claims against the company. May we request for your opinion and advice as regards the claims
made?

ANSWER:

Under the real estate service act of the Philippines, real estate brokers are not considered as employees
of the real estate company. Hence, their compensation is not based on the provisions of the labor code
but rather based on your agreement or contract. They are classified as independent contractors and do
not enjoy the benefits in the labor code including the overtime pay, premium and holiday pay as they
claimed.

[35] QUESTION

I received a complaint from my construction workers for alleged illegal deduction of wages. In particular,
they accuse my company that the value of the meals and lodging which we provide them within the
construction site to enable them to be available at anytime while construction activities are going on,
should not have been deducted from their wages. Can you please advise us if the complaint has basis?
And secondly, can you advise us of the potential liability of the company, if any?

ANSWER
This is in relation to your query on the complaint of your construction workers for the alleged illegal
deduction of wages from the lodging and meals that you provided them.

Under Article 113 of the Labor Code on Wage Deduction, it is said that no employer, in his own behalf or
in behalf of any person, shall make any deduction from the wages of his employees subject to certain
exceptions. One exception pertains to cases where the employer is authorized by law or regulations issued
by the Secretary of Labor and Employment. Deduction for value of meals and other facilities is an example
of a deduction authorized by law.

However, it is very important to revisit Department Order No. 126-13 Series of 2013 or the Revised
Guidelines on the conduct of Facility Evaluation. Under the said guidelines, facilities, which is part and
deductible from the wage, was distinguished from supplements, which is not wage deductible and
independent of the wage. As defined, facilities refer to articles or services provided by the employer for
the benefits of the employee or his/her family but shall not include tools of the trade or articles or services
i a i f he be efi f he e e ece a he c d c f he e e b i e Mea
and housing for dwelling purposes are generally considered as facilities.

In order that the fair and reasonable value of the facilities may be deducted from the wages of the
employees. The following requisites must concur:

a. Facilities subject of valuation are customarily furnished by the employer to the employee.
b. Facilities must be charged at a fair and reasonable value.
c. Deductibility of the value of the facilities must be voluntarily accepted in writing by the employee.

In your case, food and lodging are not considered facilities but supplements. A benefit or privilege granted
to an employee for the convenience of the employer is not facility. The criterion in making a distinction
between facilities and supplements does not so much lie in the kind but the purpose. Considering
therefore that your company provided you meals and lodging within the construction site to enable the
worker to be available at any time for construction activities are going on, it can be said that the ke
availability is a necessary matter in the construction operations and is beneficial to the employer. The
meals and lodging in your case should be considered as a supplement and should not be deducted from
your wage.

For the liability, your company will need to compensate the amount withheld form the employees subject
to interest.

[37] QUESTION

I am working for a meat processing company which owns a canned corned beef product, selling one can
at Php80.00. Since I am a regular employee, I am entitled under the company policy to purchase on credit
company canned goods at 50% discount. Last December 2016, I made several purchases for the Christmas
season. However, the value of the purchases I made on credit were considered by the company as part
payment of my wages. Do I have any valid grievance as regards this company policy.

ANSWER:

Under Article 102 of the Labor Code, no employer shall pay the wages of an employee by means of
promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even
when expressly requested by the employee. The same article further provides that payment of wages by
check or money order shall be allowed when such manner of payment is customary on the date of
effectivity of this Code, or is necessary because of special circumstances as specified in appropriate
regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective
bargaining agreement.
In relation thereto, Article 113 of the Labor Code provides that no employer, in his own behalf or in behalf
of any person, shall make any deduction from the wages of his employees, except: (1) In cases where the
worker is insured with his consent by the employer, and the deduction is to recompense the employer for
the amount paid by him as premium on the insurance; (2) For union dues, in cases where the right of the
worker or his union to check-off has been recognized by the employer or authorized in writing by the
individual worker concerned; and (3) In cases where the employer is authorized by law or regulations
issued by the Secretary of Labor and Employment.

Article 1706 of the Civil Code also provides that withholding of the wages, except for a debt due, shall not
be made by the employer.

In the case at bar, the act of the employer in considering the value of the purchases on credit as part of
the payment of wages is not allowed under the law. For, such payment is not in legal tender. Moreover,
it is not one of the exceptions provided for under the 2nd paragraph of Article 102 of the Labor Code. It
cannot also be justified under Article 1706 of the Civil Code as a valid wage deduction because it is not yet
due and demandable. Thus, you have a valid grievance with regards to such company policy.

[38] QUESTION

I am the owner of a coconut plantation. For the past two years, I have an arrangement with two residents
near the plantation, where I divided my property between the two and entrusted each one of them to
take care of the land, remove the weeds near the trees, fumigate the trees and prevent strangers from
taking the coconuts. I pay these two residents 1/5 of the total coconut harvest I make from the area
entrusted to them. Yesterday, I received a complaint from one of the residents, claiming payment of his
wages for the past two years. Please advise.

ANSWER

The two residents have no right to claim for their respective wages, under Article 98 of our Labor Code,
wages shall not apply to farm tenancy or leasehold, domestic service and persons working in their
respective homes in needle work or in any cottage industry duly registered in accordance with law.

Since your industry is under Farm tenancy or leasehold in accordance with RA 1199, tenancy exist
whenever two persons agree on a joint undertaking for agricultural production wherein one party
furnishes the land and the other is his labor, and the produce thereof to be divided between the
landholder and the tenant in proportion to their respective contributions.

The 1/5 of coconut harvest that you have paid for two years will be their proportion to their respective
contribution of the work done, therefore you no longer have to pay them for wages.

[38] QUESTION

My restaurant establishment was visited by a DOLE labor law compliance officer last week, who told me
it was a compliance visit due to a complaint filed by one of the waiters. I was served a Notice of Results,
finding violation of non-payment of overtime pay, premium pay and holiday pay for the past 2 years. I
cannot understand such violation because I have a payroll for the past 2 years which clearly indicated that
all my waiters were paid these labor standards, as in fact, I have proof both documentary and testimonial
that they actually received payment. I would like to seek your urgent legal advice and guidance on the
complaint filed and how to address it.
ANSWER

In view of the foregoing, the correct way to address your query is to contest the Notice of Inspection
Results and present the documentary proofs i.e. the payroll you mentioned that proves you have paid
correctly, copies of their employment contracts, and to have your waiters put their testimonies under
oath in an affidavit stating that you have made such payments for the past two years as required by
Section 6 of Rule X, Book III, of the Labor Code.

Please be advised that we have to submit our contest of the Notice of Inspection Results with all our
documentary proof of your compliance from the date you have received such Notice at earliest to the
Regional Director of the DOLE or during the hearing of the case at the latest.

[39] QUESTION

In my pharmaceutical company, two of my outside salesmen who are paid a fixed salary of Php20,000
plus Php5,000 monthly allowance for expenses and commission of 10% on all sales lodged a complaint for
payment of overtime pay, contending that they regularly devote as much as 12 hours a day to sales efforts,
which yield to much higher revenue to the company compared to their prescribed monthly quotas. Please
advise.

ANSWER:

The two salesmen are not entitled to overtime pay.

Under Article 82 of the Labor Code, the provision on overtime pay is not applicable to field personnel.
Field personnel refer to non-agricultural employees who regularly perform their duties away from the
principal place of business or branch office of the employer and whose actual hours of work in the field
cannot be determined with reasonable certainty.

As held by the Supreme Court in the case of San Miguel Brewery, Inc. v. Democratic Labor Organization (8
SCRA 613 [1963]), salesmen are field personnel who are not entitled to overtime pay. Such a salesman, to
a greater extent, works individually. There are no restrictions respecting the time he shall work and he
can earn as much or as little, within the range of his ability, as his ambition dictates. In lieu of overtime he
ordinarily receives commissions as extra compensation. He works away from his employer's place of
business, is not subject to the personal supervision of his employer, and his employer has no way of
knowing the number of hours he works per day.

In this case, the two salesmen are field personnel because they regularly perform their duties away from
the principal place of business of the employer. Although they allege that they devote as much as 12 hours
a day to sales effort, their actual hours of work in the field still cannot be determined with reasonable
certainty because of the physical impossibility of effective supervision by the employer over their field
work.

Thus, the two salesmen, being field personnel, are not entitled to overtime pay.

[39] QUESTION

I am the lawful wife of the General Manager of a meat processing company. My children and I have not
been provided with monthly support by my husband for the past two months. I am planning to write the
President of my husband's company to request him to deduct from my husband's monthly salary the sum
of Php50,000 for support. Can you advise me if my idea is doable or not, and if I have other legal options
to make sure I get a monthly support from my husband's salary? But I do not want my husband to go to
jail.

ANSWER:

Yes, your idea is doable.

The law expressly mandates parents and their children to give support to each other, whether their
relationship is legitimate or not. Undeniably, you and your children have the right to demand support
from your husband. Support is defined by the Family Code of the Philippines as follows:

A S c ie e e hi g i di e ab e f e a ce d e i g c hi g

medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include
his schooling or training for some profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or to and f ace f k

Under Article 203 of the Civil Code, the obligation to give support shall be demandable from the time the
person who has a right to receive the same needs it for maintenance, but it shall not be paid except from
the date of judicial or extrajudicial demand.

Based on the above provisions, it is imperative that demand must be made to require the father of your
daughter to fulfill his obligation to give support to the latter. If he fails to comply with his obligation, he
may be compelled to do so by the filing of an appropriate civil action in court.

It is worthy to note that our law prohibits employers, on their own behalf or in behalf of any person, to
make deductions from the wages of their employees except in the following instances: 1) where the
worker is insured with his consent by the employer, and the deduction is to recompense the employer for
the amount paid by him as premium on the insurance; 2) for union dues, in cases where the right of the
worker or his union to check-off has been recognized by the employer or authorized in writing by the
individual worker concerned; and 3) the employer is authorized by law or regulations issued by the
Secretary of Labor and Employment (Article 113, Labor Code of the Philippines).

So, before the employers may make deductions from wages, it must first be established that the same is
authorized by law, or regulations issued by the Secretary of Labor. Based on the foregoing, the laws have
explicitly provided that the right to support is demandable. Therefore, you may send a demand letter
add e ed h ba d c a f age ded c ion as it is authorized by law.

Other legal option, as previously mentioned, is the filing of an appropriate action in court. Under the Anti-
Violence Against Women and Their Children Act of 2004 or R.A. No. 9262, a mechanism was introduced
for the purpose of preventing further acts of violence that may be inflicted against a woman or her
child/children. This is particularly provided by Section 8 thereof to wit:

SECTION P ec i O de - A protection order is an order issued under this act for the purpose of
preventing further acts of violence against a woman or her child specified in Section 5 of this Act and
granting other necessary relief. The relief granted under a protection order serve the purpose of
afeg a di g he ic i f f he ha i i i i g a di i i he ic i dai ife a d
facilitating the opportunity and ability of the victim to independently regain control over her life. The
provisions of the protection order shall be enforced by law enforcement agencies. The protection orders
that may be issued under this Act are the barangay protection order (BPO), temporary protection order
(TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act
shall include any, some or all of the following reliefs:
xxx

(g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income
or salary of the respondent to be withheld eg a b he e de e e f he a e be
automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the
remittance of support to the woman and/or her child without justifiable cause shall render the respondent
or his employer liable for indirect contempt of court;

Hence, you may also file a petition for Protection Order under R.A. 9262 with the Family Court of the place
where you live to compel your husband to give financial support.

[40] QUESTION

I have been in the show business for so many years. And my childhood friend works exclusively for me for
the past two years, doing all household chores. During weekend, he accompanies me when I have some
performances. I pay him a fixed weekly wage of Php2,000.00. Yesterday, he asked me to let him spend a
two day vacation in his hometown, which I flatly denied. He later sued me to pay him the cash equivalent
of his leave benefits. Please advise.

ANSWER:

He is entitled to a two-day vacation leave to his hometown, however, he cannot ask for the cash
equivalent of his leave benefits.

He is considered by law as a domestic worker or a Kasambahay. A Kasambahay is defined by law as any

person engaged in domestic work within an employment relationship such as, but not limited to, the
f i g ge e a h ehe e aid a a c k, gardener, or laundry person.

His rights are covered by the provisions of the Domestic Workers Act. The relevant provision of the said
a a e ha A d e ic ke h ha e de ed a ea e ea f e ice ha be e i ed
an annual service incentive leave of five (5) days with pay: Provided, That any unused portion of said
annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be
c e ib e ca h

In the case at bar, your friend has been under your employment for over 2 years doing household work.
Thus, your friend squarely falls within the definition of a Kasambahay.

As a result, he can validly ask for a five-day leave for every year of service rendered and he shall be paid
for such leave. His unused leave benefits, however, cannot be converted to cash. On your part, you are
required by law to comply with its provisions. Your friend has a right under the law to have a service
incentive leave. He should be allowed to have a two-day vacation.

Non-compliance with the Domestic Workers Act is punishable with a fine of not less than Ten thousand
pesos (P10,000.00) but not more than Forty thousand pesos (P40,000.00). A civil or criminal action may
also be filed against you.

[41] QUESTION

I am the President of a call center in Cebu City which caters to the needs of clients operating in various
time zones. As I am anticipating successive non-working special holidays due to the forthcoming APEC
conferences which will be held in Cebu, I am planning to operate for seven straight days starting on
Monday. After making an advance announcement of my plan, I was surprised to receive a protest letter
from fifty of my employees who are members of Iglesia Ni Kristo, informing me of their strong reservation
of making them work on Saturday, their scheduled rest days, which is also their day of worship. Do these
employees have legal basis for their protest? Kindly advise.

ANSWER: (NOTE: Same Question in Question 24, but the answers are different. The answer below was
made by second year students and was given a follow-up question by Ma e Y a e a i g ha
no work will be required during the successive holidays. You are assuming that if there is a holiday in a
call center i i c e i eai

Article 91 of the Labor Code states that the management has a prerogative in fixing the rest day for the
e ee Thi i bjec a e ce i hich i he e e e ec he efe e ce f
e ee a hei eek e da he ch efe e ce i ba ed e igi g d

Your employees who are from Iglesia ni Kristo have a ground on this however there is also an exception
to the exception. This is when the choice of the employees as to their rest day based on religious grounds
will inevitably result in serious prejudice or obstruction to the operations or undertaking and the employer
cannot normally be expected to resort to other remedial measures, the employer in this case may
schedule the weekly rest day of their choice for at least two days in a month.

Since you are expecting an important event (APEC Conferences) you have a reason to require your
employees to work. The choice of your employees would eventually cause some problems for your
business so you can adjust the schedule for their rest days. You can even find more support under Article
92(c) of the Labor Code where you can compel employees to work on a rest day in the event of abnormal
pressure or work due to special circumstances which in this case is the forthcoming APEC.

[42] QUESTION

I am working for a fine dining restaurant as a waiter. At the time I was hired, I was told by the General
Manager that my wages would be deducted for the value of plates or glasses that I may broke while in
the performance of my work. Although I did not give my conformity, I was surprised that on two occasions
when I carelessly broke some plates (I admit I was then in a hurry to go home), my weekly wage suffered
a 10% deduction based on the actual value of these plates. I need your advice if I can validly recover what
was deducted from my wage.

ANSWER:

Yes. You can validly recover the 10% deduction made in your weekly wage by your General Manager.

Our law prohibits employers, on their own behalf or in behalf of any person, to make deductions from the
wages of their employees, except in the following instances:

1) where the worker is insured with his consent by the employer, and the deduction is to
recompense the employer for the amount paid by him as premium on the insurance;
2) for union dues, in cases where the right of the worker or his union to check-off has been
recognized by the employer or authorized in writing by the individual worker concerned; and
3) the employer is authorized by law or regulations issued by the Secretary of Labor and Employment
(Article 113, Labor Code of the Philippines).
Furthermore, the employers cannot just unilaterally declare and impose upon their employees the giving
of bonds and/or deposits to stand as a reimbursement for loss or damage to tools, materials, or
equipment supplied by the employer. Unless the employer is able to establish the following:

1.) that the same is authorized by law, or regulations issued by the Secretary of Labor.; or
2.) that the posting of cash bonds is a recognized practice in their business or if there be none, the
employers should seek for the determination by the Secretary of Labor through the issuance of
appropriate rules and regulations that the policy that they wish to implement is necessary or
desirable in the conduct of their business .(Niña Jewelry Manufacturing of Metal Arts, Inc., vs.
Montecillo, G.R. No. 188169, November 28, 2011).

The failure of the employers to comply with the foregoing will render the deductions baseless and illegal.

In the case at bar, neither Article 113 nor Article 114 can be availed by the General Manager to justify the
10% deduction in your weekly wage. None of the exceptions in Article 113 can be availed as your case
does not involve deductions for purposes of insurance, union dues, or any of those instances authorized
by law. Moreover, Article 114 cannot also be used as a valid justification as there was no deposit nor a
cash bond that have been required by your General Manager in your case. Thus, there can be no valid and
legal basis for the 10% deduction by your General Manager which entitles you to recover the amount that
has been previously deducted.
ONLINE&RECITS&QUESTIONS&
1. Question:" Congress" recently" passed" a" bill" which"
required" every" private" employer" to" compensate" its"
workers" who" are" one" year" or" less" in" their" employ"
with" separation" pay" equivalent" to" the" number" of"
months" they" actually" rendered" service," while" those"
more" than" one" year" or" more," separation" pay"
equivalent" to" one" month" pay" for" every" year" of"
service," in" case" these" workers" are" separated" from"
their"employ"due"to"insolvency."Should"I"recommend"
to"the"President"the"signing"of"the"bill"into"law?"
Suggested&Answer:&
In" relation" to" your" query," we" recommend" the" nonA
signing" of" the" subject" bill."
" Labor"Code?"
As" provided" for" the" under" Article" 283" of" the" Labor"
Code," as" follows:"
"
“Art."283."Closure"of"Establishment"and"Reduction"of"
Personnel." –" The" employer" may" also" terminate" the"
employment"of"any"employee"due"to"the"installation"
of" laborAsaving" devices," redundancy," retrenchment"
to" prevent" losses" or" the" closing" or" cessation" of"
operations" of" the" establishment" or" undertaking"
unless" the" closing" is" for" the" purpose" of"
circumventing"the"provisions"of"this"Title,"by"serving"
a"written"notice"on"the"worker"and"the"Department"
of" Labor" and" Employment," at" least" one" (1)" month"
before" the" intended" date" thereof." In" case" of"
termination" due" to" the" installation" of" labor" saving"
devices"or"redundancy,"the"worker"affected"thereby"
shall"be"entitled"to"a"separation"pay"equivalent"to"at"
least" his" one" (1)" month" pay" or" to" at" least" one" (1)"
month" pay" for" every" year" of" service," whichever" is"
higher." In" case" of" retrenchment" to" prevent" losses"
and"in"cases"of"closure"or"cessation"of"operations"of"
the"establishment"or"undertaking"not"due"to"serious"
business" losses" or" financial" reverses," the" separation"
pay" shall" be" equivalent" to" one" (1)" month" pay" or" at"
least" oneAhalf" (1/2)" month" pay" for" every" year" of"
service,"whichever"is"higher."A"fraction"of"at"least"six"
(6)" months" shall" be" considered" as" one" (1)" whole"
year.”"
" valid" distinction." For" as" long" as" it" is" valid," there"
To" grant" separation" pay" in" cases" of" insolvency"
business,"this"requires"tenure"of"service"of"at"least"1"
"
year."
"
Further,"one"of"the"limitation"of"enacting"labor"law"is"
Section" 10," Article" III" of" the" Constitution," which"
provides" that" no" law" impairing" the" obligation" of"
contracts" shall" be" passed."
"
The"singing"of"the"proposed"bill"into"law"impairs"the"
prior" acts" or" contract" entered" into" between" the"
employer"and"employee"by"changing"in"any"manner"
the" intention" of" the" parties."
"
Follow&Up:"Why"do"you"cite"the"existing"Labor"Code,"
and" comparing" it" with" the" present" bill." Cannot"
Congress"enact"a"law"that"would"amend"the"present"
Suggested&Answer:&&
Our" apologies" that" we" are" not" able" to"
vehemently" explained" our" reliance" to" the" Article" of"
the" Labor" Code" we" mentioned."
We" have" cited" Article" 283" of" the" Labor" Code" to"
emphasize"that"there"is"an"existing"law"with"regards"
to" termination" of" employees" due" to" employer's"
insolvency"or"closure"due"to"serious"business"losses."
And"as"such,"existing"contract"entered"into,"in"as"far"
as" employment" is" concern," relied" on" said" provision"
of" the" Labor" Code." Art." 283" of" the" Labor" Code" does"
not"obligate"an"employer"to"pay"separation"benefits"
when" the" closure" is" due" to" losses." Indeed," one"
cannot"squeeze"blood"out"of"a"dry"stone."Nor"water"
out"of"parched"land."
Congress"can"enact"a"law"that"would"amend"
or" repeal" the" present" Labor" Code." However," we"
would" like" to" note" the" limitations" of" such" power" to"
enact." Specifically" in" this" case" the" nonAimpairment"
and"equal"protection"clauses"provided"in"Article"3"of"
the"Constitution."
Equal" protection" simply" requires" equality"
among" all" persons" similarly" under" the" same"
circumstances" in" terms" of" rights" that" the" law" may"
confer" as" well" as" the" obligations" that" they" may"
impose." This" does" not" guarantee" absolute" equality."
By" equal" protection" clause," it" allows" ratification" or"
cannot" be" a" violation" of" equal" protection" clause." To"
be" valid" is" that" there" has" to" be" a" substantial"
1"
 distinction"and"the"distinction"has"to"be"relevant"on"
the" purpose" of" the" law" related," or" germane" to" the"
purpose" of" the" law" and" must" apply" only" to" the"
existing"conditions.""
The" Bill" in" question" provides" no" substantial"
distinction" between" the" workers" subject" therein." It"
gives" more" credence" to" the" workers" who" are"
employed"one"year"or"less,"giving"them"a"separation"
pay" equivalent" to" the" number" of" months" they"
actually"rendered"service."On"the"other"hand,"giving"
only" a" separation" pay" equivalent" to" one" month" pay"
to"workers"who"are"employed"more"than"a"year"and"
more." To" illustrate," a" worker" who" actually" rendered"
service" for" 11" months" will" receive" a" separation" pay"
equivalent"to"11"months,"however,"a"worker"who"is"
in" service" for" 2" years" will" only" receive" 2" months"
equivalent" of" separation" pay." Therefore," there" is" a"
violation" on" equal" protection" clause" provided" by"
Article" 3," Section" 1" of" the" Constitution."
Hope"we"are"able"to"clarify."
"
Follow&Up:"In"other"words,"did"I"get"it"right"that"the"
3.
bill"suffers"constitutional"infirmity"for"violation"of"the"
equal" protection" clause," which" is" one" of" the"
limitations"in"the"enactment"of"a"law?"
Suggested&Answer:&&
Yes,"the"rationale"of"our"recommendation"is"that"the"
signing" of" proposed" bill" into" law" would" suffer"
constitutional" infirmity" by" violating" the" nonA
impairment" of" contract" and" equal" protection" clause"
as" provided" therein." We" hope" to" clarify" everything"
regarding"the"matter."
" Suggested&Answer:&&
2. Question:" On" the" occasion" of" a" big" fire" in" Mandaue"
City" area," some" personnel" of" our" fire" department"
had" to" work" an" average" of" 12" hours" a" day,"
sometimes" continuously." Some" firemen" and" their"
assistants" later" filed" a" claim" for" overtime"
compensation" under" the" Labor" Code" before" the"
Regional"Office"of"the"DOLE"and"requested"the"latter"
for" assistance." Their" claims" did" not" exceed"
Php5,000.00."Will"their"claims"prosper?"
Suggested&Answer:&
"
Thank"you"for"reaching"out"on"us."As"to"your"query,"
we"are"on"the"opinion"that"the"case"will"not"prosper"
due" to" wrong" venue" of" filing" of" compliant." As"
provided" for" under" the" labor" code," the" Regional"
Office" of" the" DOLE" has" jurisdiction" for" person"
employed" in" domestic" or" household" service" or"
househelper" arising" from" employerAemployee"
relations" provided" that" the" complaint" does" not"
include"a"claim"for"reinstatement"and"the"aggregate"
money" claims" does" not" exceed" five" thousand" pesos"
(PhP5,000).""
"
This"provision"however"is"inapplicable"in"the"case"of"
our" fire" department" personnel" under" the" Bureau" of"
Fire" Protection," being" a" government" employee.""
"
Under"Article"82"of"the"same"Code,"the"coverage"of"
the"Title"(Labor"Code)"does"not"apply"among"others"
provided;" to" government" employees." Said" Fire"
Personnel"filed"their"claim"on"the"Regional"Office"of"
the" DOLE," a" wrong" venue" with" no" jurisdiction," thus,"
will"render"it"not"to"prosper."
Question:" I" am" the" lawful" wife" of" the" General"
Manager"of"a"meat"processing"company."My"children"
and"I"have"not"been"provided"with"monthly"support"
by" my" husband" for" the" past" two" months." I" am"
planning" to" write" the" President" of" my" husband's"
company" to" request" him" to" deduct" from" my"
husband's" monthly" salary" the" sum" of" Php50,000" for"
support." Can" you" advise" me" if" my" idea" is" doable" or"
not,"and"if"I"have"other"legal"options"to"make"sure"I"
get" a" monthly" support" from"my" husband's" salary?"
But"I"do"not"want"my"husband"to"go"to"jail."
"I"would"like"to"inform"you"that"the"following"are"the"
remedies" in" your" case:"
"
1." You" may" secure" a" written" consent" from" your"
husband" authorizing" his" employer" to" deduct"
Php50,000" from" his" salary" as" legal" support" to" your"
family." I" would" like" to" emphasize" that" you" cannot"
direct" the" President" through" a" letter" to" effectively"
deduct"from"the"salary"of"your"husband"representing"
yours" and" your" children’s" legal" support."
"
2." Another" remedy" is" to" file" a" civil" action" for" legal"
2"
 support" of" the" family." Article" 70" of" the" Family" Code" falls"squarely"under"the"exception,"which"is"when"the"
provides" that" one" of" the" martial" obligations" of" the" employer" is" authorized" by" law.""
spouses" is" that" they" are" jointly" responsible" for" the" "
support" of" the" family." Generally," martial" obligation" I" hope" that" I" was" able" to" provide" clarification" with"
cannot" be" compelled" by" court" action," except" for" regard" your" query." Should" you" have" any" further"
support," because" it" is" indispensable" for" sustenance." questions," please" feel" free" to" email" me" or" contact"
If"one"spouse"unjustifiably"refuses"to"give"support"to" our"office."
the" other," the" aggrieved" spouse" can" always" go" to"
4. Question:& In" my" pharmaceutical" company," two" of"
court"and"file"an"action"for"support."If"the"court"finds"
my" outside" salesmen" who" are" paid" a" fixed" salary" of"
reason" to" order" the" other" to" give" support," an" order"
Php20,000" plus" Php5,000" monthly" allowance" for"
to"support"may"be"issued"by"the"court"and"the"other"
expenses"and"commission"of"10%"on"all"sales,"lodged"
may" be" compelled" to" give" support" under" pain" of"
a"complaint"for"payment"of"their"13th"month"pay"for"
contempt.""
last" year," contending" that" they" have" been" working"
"
continuously" for" the" past" 2" years." If" I" were" to" pay"
3." Last" remedy" is" filing" of" a" criminal" action" for"
them," how" much" would" be" their" 13th" month" pay?"
violation" of" RA9262" as" the" offense" contemplates" of"
Please"advise."
an" economic" abuse."
" Suggested&Answer:&
As" emphasized" in" your" query" that" you" don’t" want" As" a" requirement," all" employers" with" the" exception"
your" husband" to" be" in" jail," I" suggest" availing" the" of"those"specified"by"law,"shall"pay"their"rankAinAfile"
second"remedy,"which"is"to"file"a"civil"action"for"claim" employees" a" 13th" month" pay" every" year." The"
of" legal" support." You" may" ask" the" court" for" legal" employee" should" have" worked" for" at" least" 1" month"
support"of"Php"50,000,"however,"the"sum"is"subject" during" the" calendar" year.""
to" the" discretion" of" the" court" as" they" deemed" "
appropriate."Once"there"is"a"judicial"order,"the"court" Conversely," the" required" minimum" amount" of" the"
may"order"your"husband"to"directly"provide"support" 13th" month" pay" shall" not" be" less" than" 1/12" of" the"
or" may" order" his" employer" to" lawfully" withheld" the" basic"salary"that"the"employee"receives"in"a"month.""
amount" from" the" salary" of" your" husband" and" remit" "
directly" the" same" to" you."" There"are"also"certain"treatments"to"certain"types"of"
Generally," employers" are" prohibited" from" making" employees." One" of" which" is" that," if" the" employee" is"
any" deductions" to" the" wages" of" their" employees." paid" a" fixed" or" guaranteed" wage" plus" commission,"
However," exceptions" are" provided" particularly" such" employee" is" entitled" to" the" mandated" 13th"
paragraph"c"of"Article"113"of"the"Labor"Code,"which" month" pay" based" on" the" total" earnings" during" the"
is" read" as" follows:" calendar"year"A"in"this"case,"both"the"fixed"wage"and"
" the" commission.""
ART." 113." Wage" deduction." A" No" employer," in" his" "
own" behalf" or" in" behalf" of" any" person," shall" make" In" your" case," you" are" mandated" to" pay" your"
any" deduction" from" the" wages" of" his" employees," employees" such" 13th" month" pay.""
except:"" "
" The" 13th" month" pay" of" each" of" your" outside"
(c)"In"cases"where"the"employer"is"authorized"by"law" salesmen" shall" include:"
or" regulations" issued" by" the" Secretary" of" Labor" and" "
Employment." 1." Fixed" Salary" =" 20," 000.00""
" 2." 10%" Commission" on" the" sales" each" year""
Should" the" court" order" the" employer" of" your" "
husband" to" withheld" an" amount" of" his" salary" as" Please"note"however,"you"have"not"given"them"their"
support"to"your"family,"this"can"be"legally"done"as"it" 13th" month" pay" for" the" past" 2" years." The" law"

3"
"
 provides"that"nonApayment"of"13th"month"pay"shall"
be"treated"as"money"claims"cases"and"shall"be"given"
due" course" in" accordance" with" the" penalties"
provided" by" the" Labor" Code" and" the" Rules" of" the"
National" Labor" Relations" Commission.""
" a" 10" storey" commercial" building" in" Ayala." We" were"
I" sternly" advice" for" the" immediate" payment" of" their"
13th"month"pay"for"the"past"2"years"to"avoid"further"
repercussions."
" erection" and" installation" of" heating" and"
Should" there" be" further" queries," please" feel" free" to"
contact"our"office.""
5. Question:" My" cousin" recently" completed" his"
bachelor's" degree" in" Medicine," and" was" offered" a"
specialization" training" agreement" to" work" for" a"
private" hospital" in" Cebu" as" part" of" ithe" hospital's"
team" of" resident" physicians" under" a" specialized"
training" program" duly" accredited" and" approved" by"
the" Department" of" Health." He" was" told" to" undergo"
the" training" for" a" period" of" three" months" with"
assignment" at" the" hospital's" emergency" room" and"
wards"where"he"has"to"report"for"duty,"twice"a"week"
on"24"hour"shift."My"cousin"is"however"unsure"of"his"
entitlement" to" wage" compensation" and" benefits"
under" the" Labor" Code." May" we" seek" your" legal"
opinion"and"advice."
" preparation"for"the"plans"including"the"erection"and"
Suggested&Answer:&
Our"existing"laws"on"labor"provides,"that"as"a"general"
rule," there" is" an" employerAemployee" relationship"
between" resident" physicians" and" the" training"
hospitals."However,"it"shall"be"noted"that"one"of"the"
factors" that" such" relationship" exists" is" when" the"
hospital" controls" the" means" and" methods" by" which"
the" physicians" is" to" accomplish" his" task."
Furthermore,"the"law"provides"that"when"there"exist"
a"training"agreement"between"the"resident"physician"
and"the"training"hospital,"and"the"training"program"is"
duly" accredited" or" approved" by" the" appropriate"
government" agency," there" exist" no" employerA
employee" relationship." Ergo," when" there's" no"
employerAemployee" relationship," we" cannot" apply"
the" wage" compensation" under" the" Labor" Code.""
" "
In" the" case" of" your" cousin," he" falls" under" the"
exception"to"the"general"rule."His"training"agreement"
is" under" a" specialized" training" program" duly"
accredited" and" approved" by" the" Department" of"
Health," and" there" is" a" 3Amonth" training" agreement"
between" him" and" the" hospital.""
" Therefore," as" per" mandated" by" law,," you" are"
We" advice" a" written" training" agreement" or" contract"
be" instituted" by" your" cousin" and" the" hospital" to"
"
ensure" and" secure" his" compensation" and" other"
possible" benefits.""
"
"
6. Question:& Our" company" is" in" construction" business."
And"our"ongoing"project"involves"the"construction"of"
recently" notified" by" the" Professional" Regulatory"
Commission" to" hire" and" employ" licensed"
professional" mechanical" engineer" as" regards" the"
design" and" preparation" of" plans," including" the"
airconditioning" machinery" and" equipment" in" this"
building" which" derive" its" power" from" wind," air"and"
solar"heat."We"are"at"a"loss"as"we"believe"that"hiring"
and"employment"of"these"professionals"must"be"left"
to"our"sound"discretion"as"management"prerogative,"
which" the" government" must" not" interfere" with."
Kindly"advise."
"
Suggested&Answer:&
The" state" can" interfere" with" property" rights" if" it"
involves" the" public" interest," safety," or" etc." With"
regard" to" the" intervention" of" the" government"
through" PRC" on" the" selection" of" your" employees" by"
requiring" you" to" employ" licensed" professional"
mechanical" engineer" as" regard" the" design" and"
installation"of"heating"and"airconditioning"machinery"
and" equipment" is" valid" because" it" is" legally"
mandated.""
"
Therefore" your" management" prerogative" to" hire"
employees"is"limited"by"RA"8495"or"otherwise"known"
as" the" Philippine" Mechanical" Act" of" 1998."
Said" law" provides;"
Section"34:"Personnel"Required"in"Mechanical"Plant."
A" every" mechanical" work," project" or" plant" in"
operation" shall" have" not" less" than" the" following"
complements" of" resident" licensed" professional"
mechanical" engineer" or" certified" plant" mechanic."
You" are" planning" to" erect" and" install" heating" and"
airconditioning" machinery" which" derive" its" power"
from" wind," air" and" solar" heat," and" said" installation"
are"mechanical"work"which"requires"the"expertise"of"
said" licensed" professionals" enumerated" above."
required" to" hire" mechanical" engineers."
"
4"
 We" advise" that" you" follow" the" requirements"
prescribed" by" the" Professional" Regulatory"
Commission" to" hire" and" employ" a" professional"
mechanical"engineer."
" which"is"manifested"in"the"Notice"of"Result,"you"shall"
7. Question:& My" restaurant" establishment" was" visited"
by" a" DOLE" labor" law" compliance" officer" (LLCO)" last"
week" to" conduct" a" Joint" Assessment." During" such"
visit,"the"LLCO"told"me"I"have"to"pay"my"Chief"Cook"
overtime" pay" since" the" daily" time" record" of" this"
manager" would" show" that" he" works" regularly" an"
average"of"10"to"12"hours"daily,"for"the"past"3"years."
When" I" disagreed," I" was" served" a" Notice" of" Results,"
finding" violation" of" nonApayment" of" overtime" pay."
Please"advise."
Suggested&Answer:&
" "
As"the"employer"of"the"restaurant"establishment"and"
8.
despite" the" fact" that" there" is" already" a" Notice" of"
Result" that" was" given" to"you" by" the" Labor" Law"
Compliance"Officer"through"a"Joint"Assessment,"you"
still" have" the" avail" of" a" remedy."
"
Under" the" Department" Order" 131AB" Series" of" 2016,"
provides"that"in"the"issuance"of"the"Notice"of"Result"
through" the" conduction" of" Joint" Assessment," the"
following" shall" be" undertaken:"
" Suggested&Answer:&
“For" NonACompliant" Establishment" A" if" the"
establishment" is" found" nonAcompliant," the" LLCO"
shall" issue" an" NR" to" the" representative" of" the"
employer" and" the" employees" ," and" the" sole" and"
exclusive" bargaining" agent," if" organized," indicating"
therein" the" noted" deficiencies.""
"
Further,"the"content"of"the"Notice"of"Result"shall"be"
explained"by"the"LLCO"to"the"representatives"of"the"
employer" and" the" employees," who" shall" thereafter"
9.
affix" their" signature" therein" to" signify" that" they"
acknowledge" the" Joint" Assessment" findings." Any"
representative" who" disagrees" with" the" findings" may"
note" his/her" comments" on" the" Notice" of" Result"
before" affixing" his/her" signature.”"
"
In" your" case" Mr." Juan," the" Notice" of" Result" is"
mandated"that"is"shall"be"given"and"be"acknowledge"
"
by" the" representatives" of" the" employer" and"
employees"and"shall"affix"their"signatures."And"since"
you"disagreed"on"the"allegation"of"non"payment"your"
employee"of"its"over"time"pay"for"almost"3"years"on"
comment"as"such"disagreement"before"affixing"your"
signature."
"
Furthermore,"another"remedy"under"the"Labor"Code"
is"that"after"the"issuance"of"the"Notice"of"Result"you"
can" file" a" protest" or" to" contest" such" findings" of" the"
LLCO"by"providing"new"documentary"evidences"that"
was" not" presented" during" the" conduct" of" the" Joint"
Assessment," thereafter," there" shall" be" a" mandatory"
conference" before" of" the" Regional" Director." Failure"
to" contest" means" there" will" be" a" issuance" of"
Compliance"Order."
Question:" I" would" like" to" consult" you" regarding" my"
daily" paid" lady" helper" in" my" gas" station." My" gas"
station" is" open" 24" hours" a" day." Aside" from" the"
helper," I" have" one" (1)" cashier" and" three" (3)" gas"
attendants."This"lady"helper"complained"that"she"has"
to" be" paid" an" additional" compensation" for" working"
during" her" shift" from" 10:00" pm" until" 6:00" am" the"
following" morning." Please" advise" whether" her"
complaint"is"valid"or"not."
I" would" like" to" consult" you" regarding" my" daily" paid"
lady"helper"in"my"gas"station."My"gas"station"is"open"
24"hours"a"day."Aside"from"the"helper,"I"have"one"(1)"
cashier"and"three"(3)"gas"attendants."This"lady"helper"
complained" that" she" has" to" be" paid" an" additional"
compensation" for" working" during" her" shift" from"
10:00" pm" until" 6:00" am" the" following" morning."
Please"advise"whether"her"complaint"is"valid"or"not."
"
"
Question:" I" own" two" (2)" school" buses," which" I" offer"
as" service" vehicles" to" private" schools" for"
Php50,000.00"a"month"each"bus."My"drivers"are"paid"
a"fixed"monthly"salary"of"Php10,000."They"are"made"
to"work"for"a"maximum"of"12"hours"a"day,"since"they"
would" need" to" bring" children" from" their" homes" to"
school"and"fetch"them"from"school"and"back"to"their"
homes." They" are" allowed" a" one" hour" meal" period"
from"12:00noon"to"1:00"pm."Although"they"are"paid"
5"
 overtime" pay," they"are" demanding" for" an" additional"
one"(1)"hour"rest"period."Please"advise."
" order" in" Region" VII," granting" a" Php7.00" wage"
Suggested& Answer:"
With" respect" to" the" demand" of" your" drivers" for" an"
additional"one"hour"rest"period,"I"would"advise"that"
you" are" not" obligated" by" law" to" provide" such"
additional" one" hour" rest" period."
" clause" since" their" wages" were" not" adjusted" by" their"
Under"Article"85"of"the"Labor"Code,"it"provides"that"it"
shall" be" the" duty" of" every" employer" to" give" his"
employees" not" less" than" sixty" minutes" or" one" hour"
time" off" for" their" regular" meals." In" your" case," you"
have" already" allowed" them" a" one" hour" meal" period"
from" 12:00" noon" to" 1:00" pm." Therefore," you" have"
complied"with"the"required"rest"period"prescribed"by"
the" Labor" Code."
" wage" is" the" lowest" wage" rate" fixed" by" law" that" an"
Also," under" article" 87" of" the" Labor" Code," it" states"
that" work" may" be" performed" beyond" eight" hours" a"
day" provided" that" the" employee" is" paid" for" the"
overtime" work" an" additional" compensation"
equivalent" to" his" regular" wage" plus" at" least" 25%"
thereof."Since"in"your"case"your"drivers"are"made"to"
work" for" a" maximum" of" 12" hours" in" which" you" are"
paying" them" overtime" pay" for" the" hours" rendered"
beyond" eight" hours." Therefore," you" have" complied"
with" this" provision" of" the" Labor" Code."
" wage" in" Region" 7" is" not" violative" of" the" equal"
It"must"be"noted"though"that"your"drivers"may"seem"
to" be" categorized" as" field" personnel" who" are" not"
covered" by" the" overtime" pay" requirement." Field"
personnel" are" those" who" regularly" perform" their"
duties" away" from" the" principal" or" branch" office" and"
whose" actual" hours" of" work" in" the" field" cannot" be"
determined" with" reasonable" certainty." In" your" case,"
the" drivers" are" not" field" personnel" since" you" can"
reasonably" determine" the" hours" they" worked" as"
basis" of" your" overtime" pay."
"
As"a"summary,"you"are"not"obliged"by"law"to"further"
grant" another" one" hour" rest" period" for" your" drivers"
since" you" have" already" allowed" them" to" have" one"
hour" off" for" meals." You" are" also" correct" in" giving"
overtime" pay" to" your" drivers" since" they" cannot" be"
considered" as" field" personnel" because" you" can"
reasonably"determine"their"hours"of"worked."
"
"
"
10. Question:" The" Regional" Tripartite" Wages" &"
Productivity" Board" (Board)" recently" issued" a" wage"
adjustment" from" the" prevailing" minimum" wage"
which" the" employers" dutifully" complied" with."
However," those" workers" receiving" above" the"
prevailing"minimum"wage"protested"and"assailed"the"
wage" order" as" violative" of" the" equal" protection"
employers" as" they" were" already" receiving" a"
daily"wage"of"Php400.00"which"was"above"the"wage"
adjustments"made"by"the"Board."Can"you"advise"us"if"
these"workers"grievance"is"valid?"
Suggested&ANSWER:&
"
This"is"an"answer"to"your"query."We"believe"that"the"
grievance" of" the" worker" is" not" valid." The" minimum"
employer" can" pay" his" workers" as" defined" under" RA"
6727" or" otherwise" known" as" the" Wage"
Rationalization"Act."According"to"the"CURRENT"DAILY"
MINIMUM" WAGE" RATES" of" REGION" VII," Central"
Visayas" Per" Wage" Order" No." ROVIIA19" which" was"
Effective"on"October"10,"2015,"the"minimum"wage"is"
Php353.00.""
"
In" your" case," the" wage" order" which" granted" a" Php"
7.00"wage"adjustment"from"the"prevailing"minimum"
protection" clause" because" these" workers" are"
currently" receiving" Php" 400.00" which" is" already"
above" the" prevailing" minimum" wage." Thus," your"
company" has" the" discretion" whether" to" follow" the"
lowest" wage" rate" fixed" by" law" or" to" exceed" beyond"
the"same."
"
11. Question:& In" my" pharmaceutical" company," two" of"
my" outside" salesmen" who" are" paid" a" fixed" salary" of"
Php20,000" plus" Php5,000" monthly" allowance" for"
expenses"and"commission"of"10%"on"all"sales"lodged"
a" complaint" for" payment" of" overtime" pay,"
contending"that"they"regularly"devote"as"much"as"12"
hours" a" day" to" sales" efforts," which" yield" to" much"
higher" revenue" to" the" company" compared" to" their"
prescribed"monthly"quotas."Please"advise."
Suggested&ANSWER:&
&
6"
 "We"have"received"your"letter"of"inquiry"with"regard"
to"the"complaint"filed"by"two"of"your"employees."We"
believe" that" the" complaint" for" payment" of" overtime"
pay" lodged" by" your" two" salesmen" is" untenable" and"
lacks" merit." Under" Article" 82" of" the" Labor" Code" of"
the" Philippines," enumerates" the" employees" not"
covered" of" the" following" benefits;" night" differential"
pay," overtime" pay," holiday" pay," service" incentive"
leave"and"service"charges."One"of"the"employees"not"
covered" in" the" above" mentioned" article" is" field"
personnel." Under" the" same" article," it" defined" that"
field" personnel" are" nonAagricultural" employees" who"
regularly" perform" their" duties" away" from" the"
principal" place" of" business" or" branch" office" of" the"
employer" and" whose" actual" hours" of" work" in" the"
field" cannot" be" determined" with" reasonable"
certainty." In" your" case," you" two" employees" are"
considered" field" personnel," as" defined" under" the"
Labor"Code."These"two"salesmen"perform"their"jobs"
away"from"your"place"of"business,"and"therefore"not"
subject" to" your" personal" supervision." You" have" no"
way" of" knowing" the" exact" number" of" hours" these"
employees"are"working"in"a"day."Their"hours"of"work"
cannot" be" determined" with" reasonable" certainty."
Thus,"they"do"not"have"the"cause"of"action"to"ask"for"
an"overtime"pay.""
" workers."Am"I"right?"Please"advise."
12. QUESTION:&I"would"like"to"consult"you"regarding"my"
rankAandAfile" workers" in" my" textile" company." I"
suspended" the" operations" of" my" company" from"
December" 15" to" 31" as" part" of" the" annual"
maintenance"and"yearly"inventory."My"workers"who"
are" monthly" paid" employees," and" who" are" paid"
above" the" monthly" minimum" wage," complained"
about" their" unpaid" holiday" pay" during" the" period"
covered" although" they" did" not" work." Please" advise"
whether"their"complaint"is"valid"or"not.&
Suggested&ANSWER:&
" Under" the" Parental" Leave" for" Solo" Parents" (R.A."
Upon"further"review"and"deliberation,"I"would"like"to"
retract" my" first" advise." The" complaint" of" your" rank"
and" file" employees" regarding" their" unpaid" holiday"
pay" is" not" valid."
" parenthood" to" enable" him/her" to" perform" parental"
Your" rank" and" file" employees," being" monthly" paid"
workers" and" even" being" paid" above" the" monthly"
minimum" wage," are" paid" every" of" the" month,"
including" unworked" rest" days," special" days" and"
regular"holidays."As"such,"their"holiday"pay"is"already"
"
incorporated"in"their"monthly"compensation."In"your"
case," they" was" a" suspension" of" operations" in" the"
Textile" Company" from" December" 15A31" because" of"
the"annual"maintenance"and"inventory."The"holidays"
falling"within"that"period"are"compensable"pursuant"
to" Section" 7," Rule" IV," Book" III" of" the" Omnibus" Rules"
Implementing" the" Labor" Code." However," such"
holiday"pay"are"deemed"already"incorporated"in"the"
monthly" compensation" of" your" rank" and" file"
employees." They" cannot" anymore" claim" for" the"
holiday" pay" because" again," it" is" already" included" in"
their" monthly" compensation." Otherwise," it" would"
tantamount"to"paying"them"an"amount"double"their"
holiday" pay" during" such" period" when" they" did" not"
work." Thus," you" are" not" anymore" obligated" to" pay"
the" holiday" pay" of" your" employees" during" the"
suspension"of"operations.""
&
13. Question:" I" would" like" to" consult" you" regarding" my"
lady" gas" attendant" in" my" gas" station" who" has" a" 3"
year" old" child" born" out" of" wedlock" from" her" liveAin"
partner"who"was"shot"to"death"last"June"1,"2016"for"
being" a" suspected" drug" pusher." My" gas" station" is"
open" 24" hours" a" day," and" under" my" employ" for" the"
past"two"years"are"one"(1)"cashier"and"three"(3)"gas"
attendants," the" lady" attendant" included." Yesterday,"
this"lady"gas"attendant"applied"for"a"leave"of"absence"
with" pay," which" I" flatly" denied" as" I" only" have" few"
Suggested&ANSWER:""
"
We"have"received"your"letter"of"inquiry"with"regard"
to" your" lady" gas" attendant" applying" for" a" leave" of"
absence" with" pay.""
"
We" believe" that" your" denial" to" grant" her" a" leave" of"
absence"with"pay"for"the"reason"of"having"only"a"few"
workers" is" misplaced.""
"
8972)" it" provides" that" a" parental" leave" for" solo"
parents" is" granted" to" any" solo" parent" or" individual"
who" is" left" alone" with" the" responsibility" of"
duties" and" responsibilities" where" physical" presence"
is" required," provided" that" the" conditions" for"
entitlement" are" met:"
"
1.)" He/" She" has" rendered" at" least" one" (1)" year" of"
7"
 service," whether" continuous" or" broken;" on" Monday." After" making" an" advance"
" announcement"of"my"plan,"I"was"surprised"to"receive"
2.)" He/" She" has" notified" his/her" employer" that" a"protest"letter"from"fifty"of"my"employees"who"are"
he/she" will" avail" himself/herself" of" it," with" a" members" of" Iglesia" Ni" Kristo," informing" me" of" their"
reasonable" period" of" time;" and" strong" reservation" of" making" them" work" on"
" Saturday," their" scheduled" rest" days," which" is" also"
3.)"He/"She"has"presented"to"his/her"employer"a"Solo" their"day"of"worship."Do"these"employees"have"legal"
Parent" Identification" Card," which" may" be" obtained" basis"for"their"protest?"Kindly"advise.""&
from" the" DSWD" office" of" the" city" or" municipality"
Suggested& ANSWER:"
where" he/she" resides."
"
"
We"have"received"your"letter"of"inquiry"with"regard"
In"addition,"the"parental"leave"shall"be"for"seven"(7)"
to" the" protest" letter" of" your" fifty" employees." We"
work" days" every" year," with" full" pay," consisting" of"
believe" that" the" protest" made" by" your" employees"
basic" salary" and" mandatory" allowances" fixed" by" the"
has" a" legal" basis.""
regional" wage" board," if" any," provided" that" his/her"
"
pay" shall" not" be" less" than" the" mandated" minimum"
Under" Art." 91" of" the" Labor" Code" of" the" Philippines,"
wage."
which" provides" that" It" shall" be" the" duty" of" every"
"
employer," whether" operating" for" profit" or" not," to"
In" your" case" Mr." Juan" Dela" Cruz," your" lady" gas"
provide" each" of" his" employees" a" rest" period" of" not"
attendant"in"your"gas"station"could"validly"apply"for"a"
less" than" twentyAfour" (24)" consecutive" hours" after"
leave" of" absence" with" pay" under" the" parental" leave"
every" six" (6)" consecutive" normal" work" days.""
for" solo" parents." Because" she" is" a" solo" parent" who"
"
has"a"3"year"old"born"child."Furthermore,"under"the"
Moreover," the" employer" shall" determine" and"
conditions,"she"has"already"rendered"more"than"one"
schedule" the" weekly" rest" day" of" his" employees"
(1)"year"of"service;"she"has"already"notified"you"that"
subject" to" collective" bargaining" agreement" and" to"
she"will"avail"herself"of"it"within"the"reasonable"time;"
such"rules"and"regulations"as"the"Secretary"of"Labor"
and" although," she" has" not" presented" to" you" a" Solo"
may" provide." However," the" employer" shall" respect"
Parent" Identification" Card," to" which" she" may" validly"
the"preference"of"employees"as"to"their"weekly"rest"
obtained"from"DSWD"office"of"the"city/municipality."
day" when" such" preference" is" based" on" religious"
The" law" did" not" provide" of" your" denial" if" she" could"
grounds.""
not" provide" you" with" the" said" Identification" Card" to"
"
which" she" can" still" obtain" from" the" DSWD" office" of"
In"your"case,"as"their"employer,"it"is"your"prerogative"
the" city/municipality." Then," If" all" of" the" foregoing"
to"determine"your"employee’s"rest"day."Further,"it"is"
requirements"are"met,"you"can"then"allow"her"to"the"
even" your" prerogative" to" change" your" employees’"
parental"leave"which"shall"be"for"seven"(7)"work"days"
rest" day" provided" that" you" have" notified" your"
every" year," with" full" pay," consisting" of" basic" salary"
employees"of"the"changes"and"the"change"shall"take"
and" mandatory" allowances" fixed" by" the" regional"
effect" at" least" 7" days" after" the" change" of" the"
wage" board," if" any," provided" that" his/her" pay" shall"
schedule." Even" though" the" choice" of" the" rest" day"
not"be"less"than"the"mandated"minimum"wage."
rests" upon" you" as" their" emloyer," you" have" to" give"
" some" deference" to" the" employees’" choice" of" their"
rest" day" when" it" is" based" on" religious" grounds." You"
14. Question:&I"am"the"President"of"a"call"center"in"Cebu"
have" to" respect" such" employees’" preference.""
City"which"caters"to"the"needs"of"clients"operating"in"
"
various" time" zones." As" I" am" anticipating" successive"
Therefore,"the"employees"has"legal"basis"for"making"
nonAworking"special"holidays"due"to"the"forthcoming"
their"strong"reservation"with"regard"to"them"working"
APEC" conferences" which" will" be" held" in" Cebu," I" am"
on"a"Saturday,"their"scheduled"rest"day,"which"is"also"
planning" to" operate" for" seven" straight" days" starting"
their"day"of"worship.&
8"
"
FollowBup& Question:"
You"mean"an"employer"cannot"require"its"workers"to"work"on"
their" scheduled" rest" day?"
&
Answer:"
"
We" are" glad" to" hear" from" you" again." With" regard" to" your"
follow" up" question," the" general" rule" is" that" under" normal"
circumstances," the" employer" cannot" require" to" compel" his"
employee"to"work"on"his"scheduled"rest"day"against"his"will."
The" general" rule" however" admits" certain" exceptions," and"
these"are"found"in"Article"92"of"the"Labor"Code"and"Section"6"
Book" 3" Rule" III" of" the" Omnibus" Rules" which" provides;"
"
When" work" on" rest" day" authorized." —" An" employer" may"
require" any" of" his" employees" to" work" on" his" scheduled" rest"
day" for" the" duration" of" the" following" emergencies" and"
exceptional" conditions:""
" reason"for"his"failure"to"avail"his"leave"benefits"is"due"
(a)" In" case" of" actual" or" impending" emergencies" caused" by"
serious" accident," fire," flood," typhoon," earthquake," epidemic"
or" other" disaster" or" calamity," to" prevent" loss" of" life" or"
property,"or"in"cases"of"force"majeure"or"imminent"danger"to"
public" safety;""
" On" the" contrary," under" the" Batas" Kasambahay,"
(b)" In" case" of" urgent" work" to" be" performed" on" machineries,"
equipment" or" installations" to" avoid" serious" loss" which" the"
employer" would" otherwise" suffer;""
" "
(c)"In"the"event"of"abnormal"pressure"of"work"due"to"special"
circumstances," where" the" employer" cannot" ordinarily" be"
expected" to" resort" to" other" measures;"
"
(d)" To" prevent" serious" loss" of" perishable" goods;""
" of" this" code," including" its" implementing" rules" and"
(e)"Where"the"nature"of"the"work"is"such"that"the"employees"
have" to" work" continuously" for" seven" (7)" days" in" a" week" or"
more," as" in" the" case" of" the" crew" members" of" a" vessel" to"
complete" a" voyage" and" in" other" similar" cases;" and""
"
(f)"When"the"work"is"necessary"to"avail"of"favorable"weather"
or"environmental"conditions"where"performance"or"quality"of"
work" is" dependent" thereon."
"
No"employee"shall"be"required"against"his"will"to"work"on"his"
scheduled" rest" day" except" under" circumstances" provided" in"
this" Section:" Provided," However," that" where" an" employee"
volunteers"to"work"on"his"rest"day"under"other"circumstances,"
he" shall" express" such" desire" in" writing," subject" to" the"
provisions" of" Section" 7" hereof" regarding" additional"
compensation.""
" their"retirement"pay,"if"any?"Please"advise."
Unfortunately," your" situation" right" now" does" not" fall" under"
the"abovementioned"exceptions."&
15. Question:" I" have" been" in" the" show" business" for" so"
many" years." And" my" childhood" friend" works"
exclusively" for" me" for" the" past" two" years," doing" all"
household"chores."During"weekend,"he"accompanies"
me" when" I" have" some" performances." Because" of"
busy" schedule," he" was" not" able" to" use" his" leave"
benefit." Yesterday," he" demanded" from" me" to" pay"
him"the"cash"equivalent"of"his"unused"leave"benefits."
Please"advise."
Suggested&ANSWER:&
The" demand" of" your" worker," to" be" paid" of" the" cash"
equivalent" of" his" unused" leave" benefits" is" valid."
"
We"cannot"impute"fault"on"the"part"of"your"worker,"
who" is" protected" by" our" labor" laws." More" so," the"
to" the" busy" schedule" of" his" work." It" would" then"
amount"to"an"injustice"if"your"worker"is"not"entitled"
to" the" cash" equivalent" of" his" unused" leave" benefits,"
the"failure"to"avail"of"which"was"not"due"to"his"fault."
unused" leave" benefits" shall" not" be" convertible" to"
cash.""
Considering" the" above" stated" law," there" is" now"
doubt" that" is" created." Pursuant" to" Article" 4" of" the"
Labor" Code" of" the" Philippines," “All" doubts" in" the"
implementation"and"interpretation"of"the"provisions"
regulations," shall" be" resolved" in" favour" of" labor."
"
Thus,"in"view"of"the"foregoing"provisions"of"the"Labor"
Code,"your"worker"is"entitled"to"the"cash"equivalent"
of"his"unused"leave"benefits."As"such,"you"are"liable"
to"heed"to"the"demand"of"your"worker."
"
16. Question:& & In" my" pharmaceutical" company," two" of"
my" outside" salesmen" who" are" paid" a" fixed" salary" of"
Php20,000" plus" Php5,000" monthly" allowance" for"
expenses," and" commission" of" 10%" on" all" sales,"
applied" for" payment" of" their" retirement" pay," since"
they"are"now"both"65"years"old."How"much"would"be"
Suggested&ANSWER:&

&

9"
"
 Your" two" outside" salesmen" are" entitled" to" a"
retirement" pay," as" mandated" by" the" Labor" Code.""
" Question:& I" am" the" President" of" a" call" center" in" Cebu" City"
Under" the" Labor" Code," the" retirement" pay" is"
equivalent" to" at" least" oneAhalf" month" salary" for"
every"year"of"service,"a"fraction"of"at"least"six"months"
being"considered"as"one"whole"year."The"term"oneA
half" month" salary" shall" mean" 15" days" plus" 1/12" of"
the" 13th" month" pay" and" the" cash" equivalent" of" not"
more" than" 5" days" of" service" incentive" leaves."
" of" Iglesia" Ni" Kristo," informing" me" of" their" strong" reservation"
Moreover," Republic" Act" No." 7641," specifically" Art."
287," made" it" mandatory" for" all" private" employers"
(with" certain" exceptions)" to" provide" retirement"
benefits" to" employees" who," upon" reaching" the" age"
of"sixty"(60)"years"or"more,"but"not"beyond"sixtyAfive"
(65)" years," have" served" at" least" five" (5)" years" in" the"
said" establishment." The" amount" of" retirement"
benefit" was" defined" as" “…at" least" oneAhalf" (1/2)"
month" salary" for" every" year" of" service," a" fraction" of"
at" least" six" (6)" months" being" considered" as" one"
whole" year.”" Furthermore," “oneAhalf" month" salary”"
was" defined" to" include" all" of" the" following:"
" admits" of" certain" exceptions." These" following"
(A)" Fifteen" (15)" days" salary" of" the" employee" based"
on" his" latest" salary" rate;"
" According" to" Art." 92," it" states" the" following"
(B)" The" cash" equivalent" of" five" (5)" days" of" service"
incentive" leave;"
(C)" OneAtwelfth" (1/12)" of" the" 13th" month" pay" due"
the" employee," and"
(D)" All" other" benefits" that" the" employer" and"
employee" may" agree" upon" that" should" be" included"
in" the" computation" of" the" employee’s" retirement"
pay"
"
But" it" shall" not" include" the" following:"
1." Cost" of" living" allowances"
2." ProfitAsharing" payments;" and"
3." Other" monetary" benefits" which" are" not"
considered" as" part" of" or" integrated" into" the" regular"
salary" of" the" employees."
" (3) In" the" event" of" abnormal" pressure" of" work" due" to"
Applying"it"in"your"case,"the"basis"in"computing"their"
retirement"benefits"is"only"their"latest"salary"rate"of"
P20,000,"as"the"commissions"they"received"are"in"the"
"
form"of"profitAsharing"payments"specifically"excluded"
by"the"foregoing"rules."
which"caters"to"the"needs"of"clients"operating"in"various"time"
zones." As" I" am" anticipating" successive" nonAworking" special"
holidays"due"to"the"forthcoming"APEC"conferences"which"will"
be" held" in" Cebu," I" am" planning" to" operate" for" seven" straight"
days" starting" on" Monday." After" making" an" advance"
announcement" of" my" plan," I" was" surprised" to" receive" a"
protest" letter" from" fifty" of" my" employees" who" are" members"
of"making"them"work"on"Saturday,"their"scheduled"rest"days,"
which"is"also"their"day"of"worship."Do"these"employees"have"
legal"basis"for"their"protest?"Kindly"advise.&
&
Suggested"ANSWER:&
&
The"employees'"protest"has"no"legal"basis."This"is"in"
connection"with"Art."92"of"the"Labor"Code."
"
According"to"the"law,"as"a"general"rule,"under"normal"
circumstances," the" employer" cannot" require" to"
compel" his" employee" to" work" on" the" latter's"
scheduled" rest" day" against" his" will." This," however,"
exceptions" are" enumerated" under" Art." 92" of" the"
Labor"Code."
"
provisions:"
"
Art."92."When"employer"may"require"work"on"a"rest"
day." The" employer" may" require" his" employees" to"
work"on"any"day:"
"
(1) In" case" of" actual" or" impending" emergencies" caused"
by"serious"accident,"fire,"flood,"typhoon,"earthquake,"
epidemic" or" other" disaster" or" calamity" to" prevent"
loss" of" life" and" property," or" imminent" danger" to"
public"safety;"
"
(2) In" cases" of" urgent" work" to" be" performed" on" the"
machinery," equipment," or" installation," to" avoid"
serious" loss" which" the" employer" would" otherwise"
suffer;"
"
special" circumstances," where" the" employer" cannot"
ordinarily"be"expected"to"resort"to"other"measures;"
"
(4) To"prevent"loss"or"damage"to"perishable"goods;"
"
10"
 (5) Where" the" nature" of" the" work" requires" continuous" Under" the" Implementing" Rules" and" Regulations" of"
operations" and" the" stoppage" of" work" may" result" in" Republic" Act" No." 10361," otherwise" Known" as"
irreparable"injury"or"loss"to"the"employer;"and" “Domestic"worker’s"Act"or"“Batas"Kasambahay”"
" "
(6) Under" other" circumstances" analogous" or" similar" to" Section" 7." Service" incentive" leaveA" kasambahay" who"
the" foregoing" as" determined" by" the" Secretary" of" has"rendered"at"least"one"year"near"service"shall"be"
Labor"and"Employment." entitled" to" an" annual" service" incentive" leave" of" at"
" least"5"days"with"pay."
Applying" it" in" your" case," the" employees" protesting" have" no" "
legal" basis" in" going" against" being" required" to" work" on" their" Since" you" friend" has" been" working" for" your"
scheduled" rest" day." Basing" from" Art." 92," you," an" employer," kasambahay" and" rendering" some" personal" service"
can" require" them" to" work" on" their" scheduled" rest" day" when" for" two" year" thus" he" is" entitled" to" 10" accumulated"
necessary"conditions"so"warrant." incentive"leaves."
" "
"
17. QUESTION:& In" my" pharmaceutical" company," two" of" 19. QUESTION:& In" my" familyAowned" pharmacy," two" of"
my" outside" salesmen" who" are" paid" a" fixed" salary" of" my" unmarried" adult" children" work" full" time" as"
Php20,000" plus" Php5,000" monthly" allowance" for" assistants,"regularly"working"an"average"of"15"hours"
expenses"and"commission"of"10%"on"all"sales,"lodged" daily," since" they" live" with" me" and" my" wife" in" the"
a"complaint"for"payment"of"their"13th"month"pay"for" same" house." They" are" paid" a" fixed" monthly" salary"
last" year," contending" that" they" have" been" working" which" they" share" to" the" family" upkeep." After" they"
continuously" for" the" past" 2" years." If" I" were" to" pay" got" married," one" of" the" two" children" sued" me" for"
them," how" much" would" be" their" 13th" month" pay?" nonApayment"of"labor"standards."Please"advise."
Please"advise."& "
Suggested&ANSWER:& Suggested&ANSWER:&
& &
The" employees" are" entitled" with" a" 13th" month" pay" Under" the" existing" labor" laws" in" our" country"
worth"Php20,000"plus"the"commission."" particularly" Art." 82" of" the" labor" code" with" regards"
" hours" of" work" states" that" the" provision" of" this" title"
As" provided" by" PD" 851," employees" who" are" paid" a" shall" apply" to" employees" in" all" establishments" and"
fixed" or" guaranteed" wage" plus" commission" are" undertakings" whether" for" profit" or" not," but" not" to"
entitled" to" a" 13th" month" pay," based" on" their" total" the" government" employees," managerial" employees,"
earnings"during"the"calendar"year,"i.e."on"both"their" field" personnel," members" of" the" family" of" the"
fixed"or"guaranteed"wage"and"commission." employer,who" are" dependent" on" him" for" support,"
" domestic"helpers,"persons"in"the"personal"service"of"
Applying"it"in"your"case,"the"commission"will"also"be" another," and" workers" who" are" paid" by" results" as"
included" in" the" computation" of" their" 13th" month" determined"by"the"secretary"of"Labor"in"appropriate"
pay." regulations."
" "
" In"your"case,"you"are"not"liable"for"a"violation"of"the"
18. QUESTION:&&I"have"been"in"the"show"business"for"so" labor" standards" since" your" two" unmarried" adult"
many" years." And" my" childhood" friend" works" children" though" work" as" full" time," falls" to" the"
exclusively" for" me" for" the" past" two" years," doing" all" exception"set"by"the"labor"code."
household"chores."During"weekend,"he"accompanies" "
me" when" I" have" some" performances." I" pay" him" a" Under" Art." 82" of" the" labor" code" provides" that,"
fixed" weekly" wage" of" Php2,000.00." Yesterday," he" members" of" the" family" of" the" employer" who" are"
asked"me"to"let"him"spend"a"two"day"vacation"in"his" dependent" on" him" for" support" are" exempted"
hometown,"which"I"flatly"denied."He"later"sued"me"to" because"the"employer"has"already"taken"care"of"the"
pay" him" the" cash" equivalent" of" his" leave" benefits." sustenance," clothing," medical" attendance" or"
Please"advise." education"of"the"particular"members"of"his"family."
" "
Suggested&ANSWER:& In" your" case," as" disclosed" from" the" facts," your"
& children"and"your"wife"are"living"in"the"same"house."
Yes,"your"friend"is"entitled"for"the"payment"of"leave" It"is"assumed"that"they"are"still"dependent"upon"you"
benefits." with" regards" to" their" sustenance." Thus," you" are" not"
" liable" for" a" violation" of" nonApayment" of" labor"

11"
"
 standards" since" their" being" part" of" your" family" who"
are"still"dependent"on"your"support"are"exempted"as"
provided"by"the"labor"code."
"
20. QUESTION:&I"am"a"member"of"the"Regional"Tripartite"
Wages" &" Productivity" Board" (Board)" representing"
the" labor's" sector." There" is" now" a" pending" petition"
with" the" Board" filed" by" a" duly" registered" federation"
of" workers" in" Region" VII" asking" for" a" Php7.00" wage"
adjustment,"to"be"added"to"the"prevailing"minimum"
wage"in"the"region."Deliberations"are"now"going"on,"
between"and"among"the"members"of"the"Board,"and"
there" is" a" strong" probability" that" the" federation's"
petition" would" be" granted." Can" you" advise" us" if" the"
petition"conforms"with"existing"law?"
" wage" fixing" function" even" before" the" expiration" of"
Suggested&ANSWER:&
& "
In" line" with" the" P7Awage" increase" petition" by" the"
federation" of" workers," this" aforementioned" petition"
currently" pending" in" your" Board" is" in" line" with" the"
existing"laws,"more"specifically"RA"6727."
" due" to" the" aforementioned" rule." If," however" there"
By" virtue" of" RA" 6727," the" Regional" Tripartite" Wages"
Productivity"Board"is"given"the"power"to"issue"wage"
orders."Art."123"states"the"following"provisions:"
" "
"Art." 123." Wage" Order." —" Whenever" conditions" in"
the" region" so" warrant," the" Regional" Board" shall"
investigate" and" study" all" pertinent" facts;" and" based"
on"the"standards"and"criteria"herein"prescribed,"shall"
proceed"to"determine"whether"a"Wage"Order"should"
be" issued." Any" such" Wage" Order" shall" take" effect"
after"fifteen"(15)"days"from"its"complete"publication"
in" at" least" one" (1)" newspaper" of" general" circulation"
in"the"region.""
" agricultural" wage" rates," would" a" wage" differential"
21. Question:"I"am"a"member"of"the"Regional"Tripartite"
Wages" &" Productivity" Board" (Board)" representing"
the" labor's" sector." There" is" now" a" pending" petition"
with" the" Board" filed" by" a" duly" registered" federation"
of" workers" in" Region" VII" asking" for" a" Php7.00" wage"
adjustment,"to"be"added"to"the"prevailing"minimum"
wage"in"the"region."Deliberations"are"now"going"on,"
between"and"among"the"members"of"the"Board,"and"
there" is" a" strong" probability" that" the" federation's"
petition" would" be"granted." Can" you" advise" us" if" the"
petition"conforms"with"existing"law?"
" employed" in" an" agricultural" business" then" their"
Suggested&Answer:&
& agricultural"
There" is" a" 12" months" prohibition" as" provided" for" in"
Section" 3," Rule" IV" of" the" National" Wage" and"
"
Productivity" Commissions’" Guidelines" No." 001A95.""
"
According"to"said"guideline,"a"Wage"Order"issued"by"
the" Board" may" not" be" disturbed" for" a" period" of" 12"
months"from"its"effectivity"and"no"petition"for"wage"
increase" shall" be" entertained" during" said" period"
except" when" Congress" itself" passes" a" national"
minimum" wage" increase" or" when" supervening"
conditions," such" as" extraordinary" increase" in" prices"
of" petroleum" products" and" basic" goods/services,"
demand" a" review" of" the" minimum" wage" rates" as"
determined" by" the" Board" and" confirmed" by" the"
Commission," the" Board" shall" proceed" to" exercise" its"
the" said" period."
In" your" situation," if" there" was" a" wage" adjustment"
order" in" the" previous" 12" months," then" the" petition"
for" the" 7" peso" wage" adjustment" cannot" be" allowed"
was" none," then" the" current" application" for" wage"
adjustment"is"allowable."
22. Question:"I"own"a"garden"vegetable"farm,"and"owns"
two"small"trucks"with"drivers"and"helpers"whose"job"
was" to" make" deliveries" to" customers" in" Cebu" City."
These" drivers" and" helpers" work" outside" the" farm"
most" of" the" time," and" do" not" perform" farm" chores,"
such" as" soil" preparation," tending" to" plants" or"
harvesting." If" I" pay" these" workers" the" applicable"
suit"lie"against"me?"
"
Suggested&Answer:&
"As" an" answer" to" your" question," we" have" first" to"
determine" the" nature" of" your" business." Since" it" is"
vegetable"farm,"then"it"is"considered"as"agricultural.""
"
Then"we"have"to"consider"your"employees,"although"
as" drivers" and" helpers" who" works" outside" the" farm"
and" do" not" perform" farm" chores," it" would" still" be"
important"to"consider"the"environment"or"the"nature"
to" which" they" are" employed." Since" they" are"
wages" rates" should" follow" as" to" the" wage" rates" for"
employees.""
"
12"
 Although" their" nature" of" job" is" different" from" a" “Nothing"in"this"Book"shall"be"construed"to"eliminate"
typical" farmer," what" is" supposed" considered" is" the" or" in" any" way" diminish" supplements," or" other"
nature" of" the" business" which" they" are" employed." In" employee"benefits"being"enjoyed"at"the"time"of"the"
your"case,"an"agricultural"one."Therefore,"the"drivers" promulgation" of" this" Code.”"
and" helpers" should" be" paid" with" regards" to" the" "
employees" under" an" agricultural" business." So" that" the" rule" against" diminution" of" supplements"
" or" benefits" may" apply," it" must" be" shown" that:"
Having"said"these,"if"the"drivers"and"helpers"are"paid" 1."The"grant"of"the"benefit"is"founded"on"a"policy"or"
with" the" latest" corresponding" rates" for" agricultural" has" ripened" into" a" practice" over" a" long" period"
workers," then" there" would" be" no" possible" wage" 2." The" practice" is" consistent" and" deliberate"
differential"law"suit"that"can"be"filed"against"you." 3."the"practice"is"not"due"to"error"in"the"construction"
" or" application" of" a" doubtful" or" difficult" question" of"
" law"
23. Question:" In" my" candleAmaking" business," I" require" 4." The" diminution" or" discontinuance" is" done"
my" employees" to" work" only" for" 6" hours" daily," but" I" unilaterally" by" the" employer"
pay" them" the" full" day's" wage" equivalent" to" an" 8" "
hours" of" work." Last" Tuesday" and" Wednesday," my" Since" six" hours" has" been" your" practiced" “normal"
workers" were" made" to" work" for" the" full" eight" (8)" hours" of" work”," work" spent" after" said" time" will" be"
hours" due" to" increase" in" demand" of" candles." Do" I" deemed" compensable." Applying" this" conclusion" to"
need" to" pay" any" additional" compensation" to" my" your" case" would" mean" that" the" two" days" your"
workers?"Please"advise." employers" spent" working" an" additional" two" hours"
" beyond" the" usual" six" hours" is" deemed" compensable"
Suggested&Answer:&& lest"it"be"an"elimination"of"their"rightful"benefits."
Compensable"overtime"work"as"defined"by"Art."82"of" "
the" Labor" Code" is" that" which" is" performed" beyond" 24. Question:" I" would" like" to" consult" you" regarding" my"
the" regular" 8" hours" of" work." It" is" not" prohibited" to" daily"paid"helper"in"my"gas"station."My"gas"station"is"
have"“normal"hours"of"work”"of"less"than"eight"hours" open" 24" hours" a" day." Aside" from" the" helper," I" have"
a" day." What" the" law" regulates" is" work" hours" one" (1)" cashier" and" twelve" (12)" gas" attendants."
exceeding" eight." It" prescribes" a" maximum" but" not" a" During"last"year's"Holy"Week,"the"helper"reported"for"
minimum."Article"83"in"the"Labor"Code"does"not"say" work" only" on" Monday" and" Tuesday" and" was" absent"
that"the"normal"hours"of"work"is"or"should"be"eight" on" Wednesday" when" he" went" on" his" scheduled"
hours" but" that" it" shall" not" exceed" eight" hours." vacation" leave." This" helper" complained" about" his"
Therefore," a" day’s" work" of" less" than" eight" hours" is" unpaid" holiday" pay" when" I" did" not" pay" him" on" Holy"
not" prohibited."" Thursday"and"Maundy"Friday."Please"advise"whether"
" his"complaint"is"valid"or"not."
In" your" case," Sir," it" would" seem" that" although" no" "
work" was" performed" beyond" eight" hours," they" may" Suggested&Answer:&
still"be"paid"additional"compensation."This"would"be" I"have"looked"into"your"inquiry"and"determined"that"
so" because" the" customary" number" of" hours" set" in" your"employee"has"indeed"a"valid"complaint"against"
your" business" has" been" for" six" hours" already." you." Under" the" Omnibus" Rules" Implementing" the"
" Labor"Code,"Book"3,"Rule"4"thereof"you"are"covered"
With" this" in" mind," considering" that" the" “normal" to" give" your" employees" holiday" pay." And" under"
hours" of" work”" in" your" business" has" been" section" 10" of" the" same" rule" where" there" are" two"
customarily"six"hours,"the"succeeding"hours"spent"by" successive" holidays," as" in" your" case," the" employee"
the" employee" working" for" you" should" be" may"not"be"paid"both"holidays"if"he"absents"himself"
compensable."This"being"in"the"spirit"of"Article"100"of" from" work" the" day" immediately" preceding" the" first"
the" Labor" Code" (Prohibition" Against" Elimination" or" holiday." Unless" he" works" on" the" first" holiday," in"
Diminution" of" Benefits)" which" provides" that:" which" case" he" is" entitled" for" holiday" pay" on" the"
" second" holiday."
13"
"
 " In"cases"where"the"employer"is"authorized"by"law"or"
In" your" case" however," your" employee" is" absent" on" regulations" issued" by" the" Secretary" of" Labor" and"
the" day" preceding" the" holiday" because" of" his" Employment.”"
vacation" leave." And" assuming" that" this" vacation" "
leave"is"paid,"he"is"still"entitled"to"the"benefit"of"both" The" Omnibus" Rules" Implementing" the" Labor" Code,"
holidays" as" this" is" in" pursuant" to" section" 6" of" the" meanwhile," provides" that" deductions" from" the"
same" rules" stating" that" an" employee" on" leave" of" wages" of" the" employees" may" be" made" by" the"
absence"with"pay"on"the"day"immediately"preceding" employer" when" such" deductions" are" authorized" by"
the" regular" holiday" shall" be" entitled" to" holiday" pay." law," or" when" the" deductions" are" with" the" written"
But" if" his" vacation" leave" is" without" pay," he" is" not" authorization" of" the" employees" for" payment" to" a"
entitled" to" holiday" pay" both" on" Holy" Thursday" and" third" person.""
Maundy" Friday."" "
" Thus,"any"withholding"of"an"employee’s"wages"by"an"
To" reiterate," the" complaint" against" you" by" your" employer" may" only" be" allowed" in" the" form" of" wage"
employee"is"valid"as"he"is"entitled"to"his"holiday"pay" deductions" under" the" circumstances" provided" in"
on"Holy"Thursday"and"Maundy"Friday"assuming"he"is" Article" 113" of" the" Labor" Code," as" well" as" the"
on"paid"vacation"leave." Omnibus" Rules" implementing" it.""
" "
25. Question:" As" we" were" promised" a" separation" pay" Further," Article" 116" of" the" Labor" Code" which"
equivalent" to" 200" percent" of" our" latest" monthly" provides" that:"
salary," I" voluntarily" applied" in" our" company's" “It" shall" be" unlawful" for" any" person," directly" or"
redundancy" program." However," I" was" surprized" to" indirectly," to" withhold" any" amount" from" the" wages"
learn" from" my" company" that" I" will" not" be" receiving" of"a"worker"or"induce"him"to"give"up"any"part"of"his"
any" separation" pay" since" I" still" have" an" outstanding" wages" by" force," stealth," intimidation," threat" or" by"
and" unpaid" loan" obligation" with" Metro" Bank," the" any" other" means" whatsoever" without" the" worker’s"
company's" payroll" depositary" bank" which" was" more" consent.”"
than" my" separation" pay." Can" I" request" your" legal" "
advice?" In"this"case,"the"deductions"made"to"your"separation"
" pay" do" not" fall" under" any" of" the" circumstances"
Suggested&Answer:& provided" under" Article" 113," nor" was" it" established"
We"have"looked"into"your"matter"and"it"would"seem" with" certainty" that" the" you" have" consented" to" the"
that" your" employer" acted" beyond" his" scope" by" said"deductions"or"that"your"employer"had"authority"
applying" your" separation" pay" to" your" outstanding" to" make" such" deductions."
balance" with" Metrobank." "
" In" a" case" similar" to" yours" decided" by" the" Supreme"
In" the" Labor" Code" of" the" Philippines," Article" 113" Court"(Philippine"Long"Distance"Telephone"Company"
states" and/or" Ernani" Tumimbang" vs." Henry" Estranero," G.R."
" No." 192518," October" 15," 2014)." The" Supreme" Court"
“No"employer,"in"his"own"behalf"or"in"behalf"of"any" ruled" that" PLDT," the" employer" in" the" case," had" no"
person,"shall"make"any"deduction"from"the"wages"of" legal" right" to" withhold" the" employee’s" redundancy"
his" employees," except:" pay" and" other" benefits" to" recompense" for" his"
In" cases" where" the" worker" is" insured" with" his" outstanding" loan" obligations" to" different" entities."
consent" by" the" employer," and" the" deduction" is" to" The" respondentAemployee’s" entitlement" to" his"
recompense" the" employer" for" the" amount" paid" by" redundancy" pay" is" mandated" by" law" which" PLDT"
him" as" premium" on" the" insurance;" cannot"unjustly"deny."It"was"further"ruled"in"the"case"
For" union" dues," in" cases" where" the" right" of" the" that"the"demand"for"payment"of"the"said"loans"is"not"
worker"or"his"union"to"checkAoff"has"been"recognized" a"labor,"but"a"civil"dispute."It"involves"debtorAcreditor"
by" the" employer" or" authorized" in" writing" by" the" relations," rather" than" employeeAemployer" relations."
individual" worker" concerned;" and" Evidently," the" respondentAemployee’s" unpaid"

14"
"
 balance" on" his" loans" cannot" be" offset" against" the" independent" judgment" and" is" not" merely" routinary"
redundancy" pay" due" to" him." or" clerical.”""
" "
In"view"of"the"foregoing,"we"can"safely"conclude"that" With" regard" your" Assistant" Chief" cook," since" he"
since"the"deduction"is"without"your"approval"and"not" regularly"and"directly"assists"a"managerial"employee"
within"the"exemptions"mentioned"by"law"for"a"legal" (Chief" Cook)" whose" primary" duty" consists" of" the"
deduction,"then"your"employer"has"acted"beyond"his" management" of" the" establishment" in" which" he" is"
authority" in" doing" such." employed" thereof;" or" executes" under" general"
" supervision"work"along"specialized"or"technical"lines"
Our"advice"regarding"your"situation"now"would"be"to" requiring"special"training,"experience,"or"knowledge;"
try" to" amicably" settle" with" your" employee" with" or" executes," under" general" supervision," special"
regard" your" right" to" your" separation" pay." Since" the" assignments" and" tasks," then" your" Assistant" Chief"
demand"for"payment"of"the"said"loans"is"not"a"labor," Cook’s" functions" fall" under" the" description" of" a"
but" a" civil" dispute." It" involves" debtorAcreditor" managerial" staff" thereby" making" him" a" managerial"
relations," rather" than" employeeAemployer" relations." employee."
Evidently,"your"unpaid"balance"on"your"loans"cannot" "
be"offset"against"the"redundancy"pay"due"you." With" that" said," the" keeping" of" records" in" line" with"
their" employment" status" would" then" be" guided" by"
" the" following" found" in" Rule" X" of" the" Omnibus" Rules"
Implementing" the" Labor" Code:"
26. Question:" My" restaurant" establishment" was" visited"
"
by" a" DOLE" labor" law" compliance" officer" (LLCO)" last"
“SECTION" 9." Time" records" of" executives." —"
week" to" conduct" a" Joint" Assessment." During" such"
Managerial" employees," officers" or" members" of" the"
visit,"the"LLCO"told"me"I"have"to"pay"my"Chief"Cook"
managerial" staff," as" well" as" nonAagricultural" field"
and" Assistant" Chief" Cook" overtime" pay." However," I"
personnel," need" not" be" required" to" keep" individual"
do"not"keep"a"daily"time"record"of"my"Chief"Cook"to"
time" records," provided" that" a" record" of" their" daily"
use"as"basis"in"determining"overtime"work"rendered."
attendance" is" kept" and" maintained" by" the"
I"was"then"reminded"by"the"LLCO"to"keep"one"as"this"
employer.”"
is"required"by"law."Please"advise."
"
"
Hence," your" Chief" Cook" not" being" a" managerial"
Suggested&Answer:""
employee," you" need" not" have" kept" a" Daily" Time"
We" would" like" to" highlight" at" this" point" that" we"
Record" in" the" first" place," provided" that" a" record" of"
maintain" our" stance" regarding" the" status" of" your"
his/her" daily" attendance" was" kept" and" maintained."
Chief" Cook" and" Assistant" Chief" Cook" as" managerial"
The" same" proves" true" to" your" Assistant" Chief" Cook."
employees.""
"
"
With" regard" the" overtime" pay," admittedly," in" our"
As" to" the" Chief" Cook’s" status" as" a" managerial"
first" letter," we" immediately" assumed" that" your"
employee," we" cite" the" case" of" Sagales" vs." Martinez"
employees" are" compensable" for" overtime" pay"
(G.R"no."166554)"as"a"reference."The"Supreme"Court"
without" making" a" thorough" evaluation" of" their"
ruled"in"this"case"that"“the"position"of"a"Chief"Cook"is"
qualifications"to"benefit"from"said"overtime"pay."Our"
supervisory" in" nature" as" he" directs" and" participates"
firm" sincerely" apologizes" for" this" lapse.""
in"the"preparation"and"serving"of"meals,"determines"
"
timing"and"sequence"of"operations"required"to"meet"
To" clarify," in" our" first" letter," the" procedure" that" we"
serving"times,"and"inspects"galley"and"equipment"for"
cited" provided" for" under" the" Labor" Law" Compliance"
cleanliness" and" proper" storage" and" preparation" of"
System" with" regard" the" overtime" pay" are" for" those"
food." Naturally," a" chief" cook" falls" under" the"
employers" who" are" nonAcompliant" or" those" who"
definition" of" a" supervisor," i.e.," one" who," in" the"
have"not"paid"their"employees"their"rightful"benefits."
interest" of" the" employer," effectively" recommends"
Since"it"has"already"been"established"in"our"previous"
managerial" actions" which" would" require" the" use" of"
letter"that"your"employees"fall"outside"the"coverage"

15"
"
 of" those" who" can" benefit" from" the" overtime" pay" national" convention" was" on" the" safety" of" our"
seeing" as" they" are" managerial" employees," then" you" members" who" have" to" go" home" almost" midnight,"
will" not" have" to" go" through" the" said" procedure" of" exposing" them" to" street" robbers," sex" maniacs," etc."
paying" your" employees" the" overtime" pay," unless" which"endanger"their"lives"and"limbs."
there" be" an" agreement" between" you" and" your" &
employees" agreeing" otherwise." Suggested&Answer:&
" I"would"like"to"seek"your"advice"on"how"we"can"voice"
To"reiterate,"as"managerial"employees,"they"are"not" out" our" members" concern" to," and" possibly" lobby"
required"by"law"to"overtime"pay"and"as"an"employer," with," the" government" for" the" enactment" of" the"
you" are" not" required" to" keep" an" individual" time" appropriate"legislation."
record"of"these"managerial"employees"provided"that" "
a" record" of" their" daily" attendance" is" kept" and" With" regards" to" your" concern," the" employees" may"
maintained." consult"first"the"management"of"the"company"of"the"
possible" implementation" of" flexible" work"
" arrangement" and" the" exemption" from" night" work"
prohibition" for" women" employees" as" provided" by"
"
Department"of"Labor"and"Employment"(DOLE)."Thus,"
27. Question:"A"protestant"sect"with"operations"in"many"
the" concern" employees" together" with" the"
parts" of" the" country" hires" as" members" of" its" staff,"
management"will"create"flexible"work"arrangements"
only" persons" belonging" to" its" sect." Since" I" was" a"
that"would"eliminate"the"possible"exposure"to"street"
graduate" of" a" Catholic" school," I" was" denied"
robbers,"sex"maniacs"and"other"related"night"crimes."
employment"by"this"sect"although"I"am"fully"qualified"
"
for"the"job."Please"advise."
If" it" is" not" resolved" through" this" scheme," I" suggest"
"
that" the" employees" will" raised" the" issue" to" DOLE"
Suggested&Answer:&
Regional" Director" or" his" duly" representative" so" an"
Regarding" your" inquiry" the" employment" practice" is"
investigation"be"made"and"be"in"assistance"in"finding"
valid." Under" the" Labor" Laws" of" the" Philippines,"
solutions"which"may"lead"to"enactment"of"labor"laws"
employers"have"a"management"prerogative"wherein"
amicable"to"both"parties."
an" employer" according" to" his" own" judgment" or"
To" elaborate" more" on" your" query" on" the" safety" of"
discretion"can"regulate"his"business."This"includes"all"
your" BPO" employees" and" how" you" can" help"
aspects" of" employment" including" hiring," work"
members’" concern" to," and" possibly" lobby" with," the"
assignments," transfer," dismissal," and" similar" subject"
government" for" the" enactment" of" the" appropriate"
matter."With"respect"to"the"line"of"their"business"and"
legislation," I" advise" you" to" visit" Tripartite" Industrial"
the" fact" that" they" only" hire" members" of" their" sect,"
Peace"Councils"of"Region"VII"here"in"Cebu"City."
this" would" mean" that" they" are" exercising"
"
management" control" to" uphold" the" beliefs" and"
Based" on" Republic" Act" 10395," Tripartite" Industrial"
practices"of"their"religion"in"connection"to"the"hiring"
Peace" Councils" (TIPCs)" at" the" regional" level" is"
of"their"workers."It"is"also"a"way"for"the"employer"to"
established" with" representatives" from" government,"
secure" a" fair" and" reasonable" return" of" investment."
workers,"and"employers"to"serve"a"continuing"forum"
Therefore," the" employer" was" only" exercising" its"
for" tripartite" advisement" and" consultation" in" aid" of"
prerogative"and"they"did"not"violate"your"rights."
streamlining" the" role" of" government," empowering"
" workers’" and" employers’" organizations," enhancing"
their"respective"rights,"attaining"industrial"peace"and"
" improving" productivity." TIPCs" has" the" function" to"
28. Question:"I"am"the"President"of"the"BPO"Employees" formulate" tripartite" views," recommendations" and"
Center" for" Best" Practices" in" Cebu" City." Among" the" proposals"on"labor,"economic"and"social"concerns"for"
members" of" this" organization" are" the" rankAandAfile" submission" to" the" President" or" to" Congress" and"
employees" of" call" centers" in" Region" VII." One" of" the" advise"the"Secretary"of"Labor"and"Employment"in"the"
principal"concerns"of"the"members"during"our"recent"
16"
"
 formulation" or" implementation" of" policies" and" which"I"denied"because"there"are"many"times"during"
legislation"affecting"labor"and"employment." working"hours"where"he"has"no"work"assignment"but"
" merely" reads" labor" law" books." Did" I" act" correctly?"
Please"advise."
Thus," TIPCs" is" the" proper" government" entity" where"
"
the" employees" can" voice" out" their" concern." I" would" Suggested"Answer:"
like"to"suggest"to"follow"the"steps"below:" "
" "I" have" received" your" letter" of" inquiry" whether" you"
1."Visit"Tripartite"Industrial"Peace"Councils"(TIPCs)"for" acted" correctly" or" not" in" denying" your" staff" who" is"
Region" VII" located" at" 2nd" floor," GMC" Plaza," MJ" claiming" for" overtime" pay." If" your" employee"
Cuenco"Avenue"cor."Legaspi"St."6000"Cebu"City"with" requested" it" by" himself" that" he" shall" have" a"
shortened" meal" period" so" that" he" can" leave" work"
Tel."No.:"(032)"253A0638"
earlier" than" the" established" schedule" then" in" such"
" situation" under" the" 2004" BWC" Manual" on" Labor"
2." Elaborate" to" them" the" safety" concerns" of" the" Standards" or" the" Shortened" Meal" Break" upon"
employees" Employee’s" Request" there" are" conditions" that" must"
" concur:"
3." Make" a" request" to" the" TIPCs" to" formulate" (a)" The" employees" voluntarily" agree" in" writing" to" a"
recommendations"and"proposals"of"said"concerns"for" shortened"meal"period"of"30"minutes"and"are"willing"
to" waive" the" overtime" pay" for" such" shortened" meal"
submission" to" the" President" or" Congress" for" the"
period;" (b)" There" will" be" no" diminution" whatsoever"
enactment"of"the"appropriate"legislation."" in" the" salary" and" other" fringe" benefits" of" the"
employees" existing" before" the" effectivity" of" the"
" shortened"meal"period;""
(c)" The" work" of" the" employees" does" not" involve"
& strenuous" physical" exertion" and" they" are" provided"
29. Question:" " I" have" been" in" the" show" business" for" so" with" adequate" “coffee" breaks”" in" the" morning" and"
many"years."And"my"makeAup"artist"and"hairdresser" afternoon;" (d)" The" value" of" the" benefits" derived" by"
who" has" been" my" childhood" friend" works" for" me" in" the" employees" from" the" proposed" work"
Cebu" City." During" the" week," when" I" have" some" arrangement" is" equal" to" or" commensurate" with" the"
performances"or"events"to"attend"to,"he"has"to"work" compensation" due" them" for" the" shortened" meal"
for"10"hours"daily."However,"when"there"no"events," period"as"well"as"the"overtime"pay"for"30"minutes"as"
he" only" works" for" one" to" two" hours," and" there" are" determined"by"the"employees"concerned;""
also"days"when"he"does"not"work"at"all."In"spite"the" (e)"The"overtime"pay"of"the"employees"will"become"
irregular"schedule,"I"pay"him"a"fixed"weekly"wage"of" due" and" demandable" if" ever" they" are" permitted" or"
Php2,000.00."Yesterday,"he"confronted"me"about"his" made"to"work"beyond"4:30"pm;"and"
pay."Please"advise." "(f)" The" effectivity" of" the" proposed" working" time"
" arrangement" shall" be" of" temporary" duration" as"
Suggested"Answer:" determined" by" the" Secretary" of" Labor" and"
" Employment.""
"Article" 82" of" the" Labor" Code" of" the" Philippines" "
enumerates" the" employees" or" workers" who" are" not" If" all" these" conditions" are" present" then" your"
covered" by" the" provisions" on" the" Conditions" of" employee" is" entitled" for" overtime" pay" since" he"
Employment" which" includes," among" others," the" should" leave" work" at" 4:30," if" he" made" to" work"
hours" worked" and" flexible" work" arrangements," beyond" then" it" would" be" considered" as" overtime"
overtime" work," and" wages." Your" friend," being" a" pay."But"if"there"is"no"agreement"between"the"two"of"
person" in" the" personal" service" of" another," is" one" of" you" then" your" employee" is" not" entitled" to" such"
those" mentioned" in" the" enumeration" therefore" said" overtime" pay" provided" that" his" 30Aminute" break" is"
provisions"of"the"Labor"Code"would"not"apply"to"him." compensable.""
" "
" Under"the"Implementing"Rules"of"Book"III:"Rule"I""
30. Question:""I"would"like"to"consult"you"regarding"my" Sec."7."Every"employer"shall"give"his"employees,"regardless"of"
filing" clerk" staff" whose" daily" work" schedule" is" 8:00" sex," not" less" that" one" (1)" hour" timeAoff" for" regular" meals,"
am" to" 12:30" noon," then" 1:00" p.m." to" 5:00" pm." The" except"in"the"following"cases"when"a"meal"period"of"not"less"
meal" period" is" from" 12:30" noon" until" 1:00" pm." Last" than" twenty" (20)" minutes" may" be" given" by" the" employer"
week," my" staff" claimed" payment" of" overtime" pay"

17"
"
provided" that" such" shorter" meal" period" is" credited" as" hours"they"have"worked"on"the"six"day"or"in"this"case"
compensable"hours"worked"of"the"employee:"" on" Saturday," should" be" compensable" for" a" total" of"
Where" the" work" is" nonAmanual" work" in" nature" or" does" not" 130%" of" their" regular" wage." The" contention" of" your"
involve" strenuous" physical" exertion;" (b)" Where" the" electricians"that"they"are"entitled"to"overtime"pay"for"
establishment" regularly" operates" not" less" than" sixteen" hours" the" whole" eight" (8)" hours" of" work" on" a" Saturday" is"
a" day;" (c)" In" cases" of" actual" or" impending" emergencies" or" incorrect"because"they"are"only"entitled"to"overtime"
there" is" urgent" work" to" be" performed" on" machineries," pay"for"work"in"excess"of"eight"(8)"hours"in"a"day.""
equipment" or" installation" to" avoid" serious" loss" which" the" "
employer"would"otherwise"suffer;"and"(d)"Where"the"work"is" The"work"rendered"by"your"electricians"on"Saturdays"
necessary"to"prevent"serious"loss"of"perishable"goods."" in"excess"of"their"normal"workweek"of"five"days"per"
In" your" case," the" nature" of" work" of" your" employee" is" week" for" a" total" of" forty" hours" is" considered"
considered" a" nonAmanual" work" or" does" not" involved" overtime" work." This" is" in" accordance" with" the"
strenuous" physical" exertion," according" to" your" description." Section"7,"Rule"IAA,"Book"Three"of"the"Omnibus"Rules"
Under"the"said"law,"there"is"no"need"for"a"consent"from"your" Implementing" the" Labor" Code" which" provides" that"
employee," provided," that" the" shortened" meal" period" is" work" rendered" in" excess" of" the" 40" hour," 5" days" of"
compensable" hours" worked" of" your" employee." Thus," your" the"hospital"personnel"by"reason"of"the"exigencies"of"
decision" is" not" illegal" per" se," provided," that" you" compensate" their" service" are" considered" overtime" work." Your"
the"shortened"meal"period"as"hours"worked."" electricians" then" are" compensable" for" the" overtime"
" work"an"additional"compensation"equivalent"to"their"
" regular"wage"plus"at"least"30%"thereof."
" "
31. Question:" I" am" the" administrator" of" a" multiAmillion" "
hospital" in" Metro" Manila." Aside" from" the" doctors," 32. Question:""I"am"the"President"of"a"call"center"in"Cebu"
nurses," pharmacist," medical" aides," also" employed" City"which"caters"to"the"needs"of"clients"operating"in"
are"electricians"and"security"personnel,"who"all"work" various" time" zones." My" company" has" a" policy"
regularly"from"Monday"to"Saturday"for"8"hours"daily." granting" 10" days" vacation" leave" with" pay" to" all" our"
Last" week," a" complaint" was" lodged" by" the" employees" who" have" rendered" one" (1)" year" of"
electricians," contending" they" are" entitled" to" service," and" an" additional" one" day" vacation" leave"
overtime" pay" for" the" whole" 8" hours" of" work" on" with"pay"for"every"year"after,"up"to"a"maximum"of"20"
Saturday."Please"advise." days."However,"our"policy"says"that"any"leave"unused"
" by" the" qualified" employee" within" the" year" of"
Suggested&Answer:& entitlement"shall"not"be"convertible"to"cash"and"shall"
& be" deemed" forfeited." Ten" of" my" employees" who"
The"Labor"Code"of"the"Philippines,"Article"83"thereof," have"been"with"the"company"for"the"past"five"years"
states" that" the" covered" employees" are" the" health" were" not" able" to" avail" and" use" their" scheduled"
personnel."“Health"personnel”"shall"include"resident" vacation" leave" last" year" due" to" the" successive" nonA
physicians," nurses," nutritionists," dieticians," working"special"holidays"brought"about"by"the"APEC"
pharmacists," social" workers," laboratory" technicians," conferences"where"I"required"all"employees"to"work"
paramedical" technicians," psychologists," midwives," for" seven" (7)" straight" days." Can" they" demand"
attendants" and" all" other" hospital" or" clinical" payment" of" the" cash" equivalent" of" their" unused"
personnel."With"this,"the"electricians"of"your"hospital" vacation"leave."Pleased"advise."
fall" under" the" phrase" “all" other" hospital" or" clinical" "
personnel”."Because"they"are"covered"under"the"said" "
exception,"their"normal"workweek"should"be"five"(5)" Suggested&Answer:&
days"per"week"for"a"total"of"forty"(40)"hours." &
" Under"Article"95"of"the"Labor"Code,"employees"are"entitled"to"
Provided" that" the" electricians" are" working" regularly" a" yearly" service" incentive" leave" of" 5" days" with" pay." This" is"
from" Monday" to" Saturday" for" eight" (8)" hours" daily," given"to"the"employees"who"have"rendered"at"least"one"year"
this" is" in" excess" of" the" normal" workweek" mandated" of" service" in" the" establishment." Considering" that" the"
by" law" for" the" covered" health" personnel." However," employees" who" are" asking" for" this" benefit" have" already"
the" law" also" provides" that" should" the" exigencies" of" rendered" 5" years" of" service" in" your" company," they" would"
the" service" require" these" health" personnel" to" work" have" been" entitled" to" this" leave" benefit." However," the" grant"
for" six" (6)" days" or" fortyAeight" (48)" hours," they" are" of" Service" Incentive" Leave" provides" for" exceptions." One" of"
allowed" to" do" so" provided" that" they" are" entitled" to" which" is" when" the" company" is" providing" its" employees" a"
an" additional" compensation" of" at" least" 30%" of" their" vacation"leave"with"pay"of"at"least"5"days."Since"you"provide"
regular"wage"for"work"on"the"sixth"day."The"eight"(8)" your" employees" vacation" leave" of" 10" days" with" pay" which" is"

18"
"
greater" than" what" is" mandated" by" law," you" are" exempted" 2016." This" period" covers" 30" days" of" her" maternity"
from" complying" with" the" provisions" under" the" Service" leave." On" March" 31," 2016," she" underwent" an"
Incentive." operation"to"remove"a"tumor"in"her"left"ovary"which"
" qualifies" as" a" gynecological" disorder." Since" she"
Instead,"the"terms"provided"under"your"company"policy"shall" already"availed"of"the"30"days"of"leave"credits"upon"
apply." A" company" policy" is" one" of" the" sources" of" labor" delivery,"she"no"longer"has"any"leave"credits"for"the"
standards." Being" such," if" your" company" has" consistently" and" rest" of" the" year" in" case" she" will" undergo" another"
deliberately" adopted" a" practice," it" is" binding" upon" your" surgery" due" to" gynecological" disorder." This" is"
employees." It" is" clear" and" unambiguous" in" your" company" because" the" physician" required" recuperation" for" a"
policy" that" you" do" not" allow" this" leave" benefit" to" be" period" of" 60" days.This" is" taken" from" the" difference"
convertible" to" cash" if" unused." Thus," your" employees" who" between" the" maternity" leave" and" special" leave"
have" failed" to" make" use" of" the" vacation" leave" you" have" benefit."
provided"are"not"entitled"to"its"cash"equivalent." "
"
" "
"
33. Question:" A" school" teacher" of" USC" gave" a" normal"
delivery" for" her" first" child" on" March" 1," 2016" and"
availed" of" her" maternity" leave." However," on" March"
31,"2016"she"underwent"surgery"to"remove"a"tumor"
in"her"left"ovary,"requiring"recuperation"for"a"period"
of"60"days"as"certified"by"her"physician."Kindly"advise"
us" on" her" leave" entitlement," if" any," under" existing"
laws" in" case" she" again" undergoes" surgery" due" to"
gynecological" disorder" within" the" remainder" of" the"
year."
"
Suggested&Answer:&"
"
This" is" in" response" to" your" inquiry" sent" to" our" good"
office." The" school" teacher" is" no" longer" entitled" to"
leave" credits" for" the" remainder" of" the" year" if" she"
undergoes" another" surgery" due" to" gynecological"
disorder" under" Magna" Carta" of" Women." This" is"
based" on" the" Magna" Carta" of" Women" and" the"
Amending" Guidelines" on" the" Implementation" of"
Special" Leave" Benefit" for" Women" Employees" in" the"
private"sector"(DOLE"D.O."No."112AA,"series"of"2012)."
Under" the" Magna" Carta" of" Women," the" women"
employees" are" entitled" to" 60" days" of" leave" for"
surgery" involving" gynecological" disorders." Under"
Section" 9" of" the" DOLE" D.O." No." 112AA" S.12," “Where"
the"woman"employee"had"undergone"surgery"due"to"
gynecological" disorder" during" her" maternity" leave,"
she" is" entitled" only" to" the" difference" between" the"
special"leave"benefit"and"maternity"leave"benefit.”"In"
order" to" be" entitled" to" such" benefit," the" female"
employee" must" render" at" least" 6" months" of"
continuous" aggregate" employment" service" for" the"
last"12"months"preceding"the"gynecological"surgery."
Based"on"the"Social"Security"Law"on"Maternity"Leave,"
women" employees" are" entitled" to" 60" days" of" leave"
for"normal"delivery.""
"
In" the" present" case," the" teacher" availed" of" her"
maternity" leave" from" March" 1," 2016" to" March" 31,"

19"
"