(Billie Blanco) Labor 1 Memory Aid (Last Edit Dec. 7, 2020)

(12/07/20)
This is exactly what I have indicated it [FROM YOUTUBE VIDEO – Labor I: General
to be: a memory aid, which I based from my Provisions]
personal notes and annotations as well as the
discussions of Atty. Marj, and formatted for easier Q: What is Labor Law?
memorization and recall. All for love.
A: Labor Law is the branch of law that
–BB
governs the relationship between employers
and employees.

LABOR I It is composed of the statutes, [as well as] the
implementing rules and regulations, including
the Supreme Court cases or jurisprudence
GENERAL PROVISIONS providing for labor standards and a legal
framework for negotiating, adjusting, and
Articles 1-6, Labor Code administering these legal standards and
incidents of employment.
ARTICLE 1. NAME OF DECREE.

This Decree shall be known as the “Labor Code of
the Philippines.”
Q: What are the primary constitutional
provisions, statutes, and regulations related
to employment?
ART. 2. DATE OF EFFECTIVITY. A: Statutes include Civil Code (See Arts. 1700
This Code shall take effect 6 months after its and 1701 of the Civil Code, which discusses
promulgation. the relation between capital and labor, states
that it (labor) is not merely contractual
because it is imbued with public interests.
ART. 3. DECLARATION OF BASIC POLICY. What this means is that contracts are subject
The State shall afford protection to labor, promote
to special laws on labor union, collective
full employment, ensure equal work opportunities
regardless of sex, race or creed, and regulate the
bargaining, strike, lockouts, closed shop
relations between workers and employers. provisions, wages, and working conditions
which the State undertook to protect under
The State shall assure the rights of workers to the Constitution.).
self-organization, collective bargaining, security of
tenure, and just and humane conditions of work. Other notable special laws other than the
Labor Code and Civil Code relating to labor
and employment are Social Securities Services
ART. 4. CONSTRUCTION IN FAVOR OF LABOR. (SSS) Law, Government Service Insurance
All doubts in the implementation and
Securities (GSIS) Law, 13th month payment law,
interpretation of the provisions of this Code,
including its implementing rules and regulations,
Magna Carta for Public Health Workers,
shall be resolved in favor of labor. Anti-Sexual Harassment Law, Migrant Workers
Act, and several other laws.

ART. 5. RULES AND REGULATIONS. Constitutional provisions on labor includes:
The Department of Labor and other government ● Art. II, Sec. 18, which states that the
agencies charged with the administration and State affirms labor as primary
enforcement of this Code or any of its parts shall socioeconomic force [and] it shall
promulgate the necessary implementing rules and promote the rights of workers and
regulations. Such rules and regulations shall
promote their welfare;
become effective 15 days after announcement of
their adoption in newspapers of general
● Art. XIII, Sec. 3, which provides that
circulation. the State shall afford full protection of
labor, whether local or overseas,
organized or unorganized, and
ART. 6. APPLICABILITY. promote full employment and equality
All rights and benefits granted to workers under of employment opportunities for all;
this Code shall, except as may otherwise be ○ The Constitution in the same
provided herein, apply alike to all workers, whether provision also guarantees the
agricultural or non-agricultural. right of all workers to
Billie Blanco (3E) | Ateneo Law School 2022 | 1
/
self-organization, including A: Management prerogative means that an
collective bargaining employer is free to regulate according to his
negotiation, [and] peaceful own judgement and discretion all aspects of
concerted activities, which employment. This includes employee transfer,
includes the right to strike. whether or not to grant bonuses, to impose
○ Employees are also entitled to discipline, and other rules and regulations but
security of tenure, humane the exercise of management prerogative
conditions of work, and a living should be exercised in good faith.
wage.
○ Employees shall also Management’s rights are subject to
participate in policy and limitations provided by law as well as
decision-making processes individually, by contract, or by collectively, by
affecting their rights and collective bargaining agreement and general
benefits, as may be provided by principles of fair play and justice.
law.
Q: What are the employer’s rights?
Note: The PH is a pro-labor jurisdiction. A: Some of the rights of employers are:
1. Right to return of investment (ROI) and
Q: Pro-Labor? What does that mean? to make a profit;
A: This means that in interpreting labor laws, 2. Right to prescribe reasonable rules
rules, and regulations, the Court has adopted and regulations;
a liberal approach, meaning it almost always 3. Right to select employees and to
favors the exercise of labor rights. decide to hire and when to engage
them; and
Q: Why is the PH’s pro labor? 4. Right to transfer and discipline
A: It is believed that workers are often at the employees.
employers’ mercy and must look up to the law
for protection. The employers appear to stand Q: What are the basic rights of employees?
to a higher footing compared to employees, A: Some of the rights of employees:
so the law must protect those who have less 1. Right to organize themselves
in life and are prone to abuses brought about 2. Right to conduct collective bargaining
by the necessity for survival. or negotiations with management
3. Right to engage in peaceful concerted
Q: Does it mean that employers do not have activities, including the right to strike
rights? 4. Right to work under humane
A: When we say that the PH is a pro-labor conditions
jurisdiction, it does not mean that 5. Right to receive living wage
management is left powerless. While there is 6. Right to participate in policy and
an obvious preference or bias for labor, decision-making processes affecting
management also has its own rights, which in their rights
the same manner, they are entitled to the 7. Right to enjoy security of tenure
same respect and enforcement in the interest (Remember! In the PH, employees may
of justice and fairplay. only be terminated for cause – we do
not have employment-at-will.)
Such favouritism in favor of labor does not
always mean that employees will win. The Q: What is the Labor Code?
Labor Code is not one sided. The law in A: The Labor Code is the principal labor law of
protecting the rights of labor authorizes the PH. It is a set of substantive and
neither the oppression or destruction of the procedural laws that prescribe the principal
employer. The Court has consistently upheld a rights and responsibilities of employers and
company’s exercise of management employees among other things. It also lays
prerogative. down the basic and fundamental rights and
obligations of employees and employers to
Q: What is management prerogative? each other.
Q: When did the Labor Code take effect?
/
A: November 1, 1974 (The Labor Code was Articles 7-11, Labor Code
made public, signed into law, and declared to ART. 7. STATEMENT OF OBJECTIVES.
have taken effect all on the same day!) Inasmuch as the old concept of land ownership by
a few has spawned valid and legitimate
The Labor Code has 2 branches: (1) Labor grievances that gave rise to violent conflict and
Standards; and (2) Labor Relations. social tension and the redress of such legitimate
grievances being one of the fundamental
Q: What is Labor Standards? objectives of the New Society, it has become
A: It is that which sets out the minimum terms imperative to start reformation with the
and conditions and benefits of employments emancipation of the tiller of the soil from his
bondage.
that employers must provide to their
employees. The employees are entitled to
these labor standards as a matter of right. ART. 8. TRANSFER OF LANDS TO
These are also the minimum requirements TENANT-WORKERS.
prescribed by laws as well as rules and Being a vital part of the labor force, tenant-farmers
regulations relating to wages, hours of work, on private agricultural lands primarily devoted to
cost of living allowance, and other monetary rice and corn under a system of share crop or
and welfare benefits, including occupational lease tenancy whether classified as landed estate
safety and health standards. or not shall be deemed owner of a portion
constituting a family-size farm of 5 hectares if not
irrigated and 3 hectares if irrigated.
Q: What is Labor Relations?

A: It is that which defines the status, rights, In all cases, the land owner may retain an area of
and duties, as well as the institutional not more than 7 hectares if such landowner is
mechanisms that govern the individual and cultivating such area or will now cultivate it.
collective interaction of employer and

employees, or their representative. These are
where we discuss unions, collective ART. 9. DETERMINATION OF LAND VALUE.
bargaining agreements, and negotiations, For the purpose of determining the cost of the
among others. land to be transferred to the tenant-farmer, the
value of the land shall be equivalent to 2-1/2 times
the average harvest of 3 normal crop years
immediately preceding the promulgation of
Presidential Decree No. 27 on October 21, 1972.

The total cost of the land, including interest at the
rate of 6% per annum, shall be paid by the tenant
in 15 years of fifteen 15 equal annual
amortizations.

In case of default, the amortization due shall be
paid by the farmers' cooperative in which the
defaulting tenant farmer is a member, with the
cooperative having a right of recourse against
him.

The government shall guarantee such
amortizations with shares of stock in
government-owned and government controlled
corporations.

/
ART. 10. CONDITIONS OF OWNERSHIP. EMPLOYER-EMPLOYEE RELATIONSHIP
No title to the land acquired by the tenant-farmer
under Presidential Decree No. 27 shall be actually
issued to him unless and until he has become a A. Elements of the Relationship
full-fledged member of a duly recognized farmers'
cooperative.
Articles 97(a), (b), (c) (e); 173 (f), (g); and 219
Title to the land acquired pursuant to Presidential (e) & (f), Labor Code
Decree No. 27 or the Land Reform Program of the
ARTICLE 97. DEFINITIONS.1
Government shall not be transferable except by
As used in this Title:
hereditary succession or to the Government in
(a) "Person" means an individual, partnership,
accordance with the provisions of Presidential
association, corporation, business trust, legal
Decree No. 27, the Code of Agrarian Reforms and
representatives, or any organized group of
other existing laws and regulations.
persons.
(b) "Employer" includes any person acting
directly or indirectly in the interest of an
ART. 11. IMPLEMENTING AGENCY. The
employer in relation to an employee and shall
Department of Agrarian Reform shall promulgate
include the government and all its branches,
the necessary rules and regulations to implement
subdivisions and instrumentalities, all
the provisions of this Chapter.
government-owned or controlled corporations
and institutions, as well as non-profit private
Note: The Labor Code touches agrarian institutions, or organizations.
reform only because it is a subject governed (c) "Employee" includes any individual employed
principally by RA 6657 as amended. by an employer.
X X X
(e) "Employ" includes to suffer or permit to

work.

ARTICLE 173. DEFINITIONS OF TERMS.2
As used in this Title, unless the context
indicates otherwise:

X X X
(f) "Employer" means any person, natural or
juridical, employing the services of the
employee.

(g) "Employee" means any person compulsorily
covered by the GSIS under Commonwealth Act
Numbered One Hundred Eighty-Six, as
amended, including the members of the Armed
Forces of the Philippines, and any person
employed as casual, emergency, temporary,
substitute or contractual, or any person
compulsorily covered by the SSS under Republic
Act Numbered Eleven Hundred Sixty-One, as

amended.

1
Note this provision is under Chapter I, Preliminary
Matters on Title II (Wages).

2
Note this provision is under Chapter I, Policy and
Definitions on Title II (Employees’ Compensation
and State Insurance Fund).
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ARTICLE 219. DEFINITIONS.3 (4) Among the stockholders, partners or
X X X associates themselves (See Matling Industrial
v. Coros, citing Mainland Construction v.
(e) "Employer" includes any person acting in the Movilla).
interest of an employer, directly or indirectly. The
term shall not include any labor organization or
any of its officers or agents except when acting LABOR DISPUTE INTRA-CORPORATE
as employer. DISPUTE

(f) "Employee" includes any person in the employ Controversies Controversies
of an employer. The term shall not be limited to arising from arising from
the employees of a particular employer, unless employer-employee intra-corporate or
the Code so explicitly states. It shall include any relationship partnership relations
individual whose work has ceased as a result of
or in connection with any current labor dispute or
because of any unfair labor practice if he has not Cognizable by the Cognizable by the
obtained any other substantially equivalent and
Labor Arbiter/NLRC SEC/RTC acting as a
regular employment.
commercial court

JURISDICTION. - W/N the person is an
Note: Under Sec. 5.2 of RA 8799: The
employee or a corporate officer?4
Commission’s jurisdiction over all cases
● Under Section 25 of the Revised
enumerated under section 5 of Presidential
Corporation Code, a position must be
Decree No. 902-A5 is hereby transferred to the
expressly mentioned in the By-Laws in
Courts of general jurisdiction or the
order to be considered as a corporate
appropriate Regional Trial Court: Provided,
office. Thus, the creation of an office
That the Supreme Court in the exercise of its
pursuant to a By-Law enabling
authority may designate the Regional Trial
provision is not enough to make a
Court branches that shall exercise jurisdiction
position a corporate office.

Note: The fact that the parties involved in the
controversy are all stockholders or that the
5
Section 5 of PD 902-A states that: In addition to
parties involved are the stockholders and the the regulatory and adjudicative functions of the
Securities and Exchange Commission over
corporation does not necessarily place the
corporations, partnerships and other forms of
dispute within the ambit of the jurisdiction of
associations registered with it as expressly
SEC. granted under existing laws and decrees, it shall
have original and exclusive jurisdiction to hear
In order that the SEC (now, the RTC acting as a and decide cases involving:
commercial court) can take cognizance of a (a) Devices or schemes employed by or any acts, of
case, the controversy must pertain to any of the board of directors, business associates, its
the following relationships: officers or partnership, amounting to fraud and
(1) Between the corporation, partnership or misrepresentation which may be detrimental to the
association and the public; interest of the public and/or of the stockholder,
partners, members of associations or organizations
(2) Between the corporation, partnership or
registered with the Commission;
association and its stockholders, partners,
(b) Controversies arising out of intra-corporate or
members or officers; partnership relations, between and among
(3) Between the corporation, partnership or stockholders, members, or associates; between any
association and the State as far as its or all of them and the corporation, partnership or
franchise, permit or license to operate is association of which they are stockholders,
concerned; and members or associates, respectively; and between
such corporation, partnership or association and
the state insofar as it concerns their individual
franchise or right to exist as such entity; and
3
Note this provision is found under Book V: Labor (c) Controversies in the election or appointments of
Relations. directors, trustees, officers or managers of such
4
See Matling Industrial v. Coros and Cosare v. corporations, partnerships or associations.
Broadcom Asia.
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over the cases. The Commission shall retain status of a person is defined and
jurisdiction over pending cases involving i ntra prescribed by law and not by what the
corporate disputes submitted for final parties say it should be.
resolution which should be resolved within
one (1) year from the enactment of this Code. The right of labor to security of tenure as
The Commission shall retain jurisdiction over guaranteed in the Constitution arises only if
pending suspension of payment/rehabilitation there is an employer-employee relationship
cases filed as of 30 June 2000 until finally under labor laws.
disposed. Not every performance of services for a fee
creates an employer-employee relationship.
In order to determine whether a dispute To hold that every person who renders
constitutes an intra-corporate controversy or services to another for a fee is an employee —
not, the Court considers a two-tiered test, to give meaning to the security of tenure
which looks at two elements instead, namely: clause — will lead to absurd results.
(1) Relationship test, which involves the
status or relationship of the parties; and FOUR-FOLD TEST (Factors to consider in
(2) Nature of controversy test, which involves determining the existence of
6
the nature of the question that is the subject employee-employer relationship):
of their controversy. (1) Selection and engagement of employee;
(2) Payment of wages;
What does this mean? The relationship of a (3) Power of dismissal; and
person to a corporation, whether as officer or (4) Employer’s power to control the employee
as agent or employee, is not determined by with respect to the means and method by
the nature of the services performed, but by which the work is to be accomplished.
the incidents of the relationship as they
actually exist. Thus, to be considered an The most important factor is the control test.
intra-corporate controversy, the dismissal of a Under the control test, there is an
corporate officer must have something to do employer-employee relationship when the
with the duties and responsibilities attached person for whom the services are performed
to his/her corporate office or performed in reserves the right to control not only the end
his/her official capacity (See Cacho v. achieved but also the manner and means
Balagtas). used to achieve that end.

Q: Is a replevin case, involving payment of Q: What does control entail?
the market value of a company car or A: Guidelines indicative of labor law "control,"
surrender of the same a labor dispute? tells us, should not merely relate to the
A: No. The case is a civil dispute. It involves mutually desirable result intended by the
the relationship of a debtor and creditor, rather contractual relationship; they must have the
than the employer-employee relations (See nature of dictating the means or methods to
SMART v. Astorga). be employed in attaining the result, or of fixing
the methodology and of binding or restricting
Employee-Employer Relationship is a question the party hired to the use of these means.
of fact.
● GENERAL RULE: Only questions of law Control over the performance of the task of
are entertained in appeals by certiorari one providing service — both with respect to
to the Supreme Court. the means and manner, and the results of the
EXCEPTION: When the Labor Arbiters service — is the primary element in
and Court of Appeals and the NLRC’s determining whether an employment
rulings are conflicting.
● The existence of an 6
See TAPE v. Servana; ABS-CBN Broadcasting Corp
employer-employee relationship v. Nazareno; Fuji Television v. Espiritu; Begino v.
cannot be negated by expressly ABS-CBN; Sonza v. ABS-CBN; Bernante v. PBA;
repudiating it in a contract, when the Abella v. PLDT; Consulta v. CA; Phil. Global
terms and surrounding circumstances Communications v. De Vera; Coca-Cola v. Climaco;
show otherwise. The employment Chavez v. NLRC; Royale Homes v. Alcantara; Bazar
v. Ruizol
/
relationship exists. Thus, where the law Distinctions between fixed term employment,
makes it mandatory for a company to independent contractor, and regular
exercise control over its agents, the employment (as laid down in Fuji Television v.
complainant in an illegal dismissal case Espiritu7)8
cannot rely on these legally prescribed control Fixed Term Brent guidelines:
devices as indicators of an Employment 1. The fixed period of
employer-employee relationship (See Tongko employment was knowingly
v. Manufacturers Life). and voluntarily agreed upon by
Not every form of control is indicative of the parties without any force,
employer-employee relationship. A person duress, or improper pressure
who performs work for another and is being brought to bear upon the
subjected to its rules, regulations, and code of employee and absent any other
circumstances vitiating his
ethics does not necessarily become an
consent; or
employee. As long as the level of control does
2. It satisfactorily appears
not interfere with the means and methods of that the employer and the
accomplishing the assigned tasks, the rules employee dealt with each other
imposed by the hiring party on the hired party on more or less equal terms
do not amount to the labor law concept of with no moral dominance
control that is indicative of exercised by the former or the
employer-employee relationship (See Royale latter.
Homes v. Alcantara).
Employee-employee
relationship exists.9
Note: There has been no uniform test to
determine the existence of an
employer-employee relation. The better
approach would therefore be to adopt a
two-tiered test involving:
(1) Control Test, which involves 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) Broader Economic Reality Test, which
considers the underlying economic
realities of the activity or relationship
(See Francisco v. NLRC, citing Sevilla v.
CA).

Remember: Labor contracts are subject to the 7
Employees under fixed-term contracts cannot be
police power of the state and are placed on a independent contractors because in fixed-term
higher plane than ordinary contracts! contracts, an employer-employee relationship
exists.
8
The test in this kind of contract is not the
necessity grid desirability of the employee's
activities, "but the day certain agreed upon by the
parties for the commencement and termination of

the employment relationship."

For regular employees, the necessity and
desirability of their work in the usual course of the
employer's business are the determining factors.

On the other hand, independent contractors do not
have employer-employee relationships with their
principals.

9
See Rowell Industrial Corporation v. CA; Jamias v.
NLRC.
/
Independent One who carries on a distinct Regular Contracts of employment are
Contractor and independent business and Employees different and have a higher
undertakes to perform the job, level of regulation because they
work, or service on its own are impressed with public
account and under one’s own interest. Article 13, Section 3 of
responsibility according to the 1987 Constitution provides
one’s own manner and method, full protection to labor.
free from the control and Apart from this, Article 1700 of
direction of the principal in all the Civil Code states that:
matters connected with the The relations between capital
performance of the work and labor are not merely
except as to the results thereof. contractual. They are so
No employer-employee impressed with public interest
relationship exists between the that labor contracts must yield
independent contractors and to the common good. Therefore,
their principals (Read with Art. such contracts are subject to
106 of LC). the special laws on labor
There are different kinds of unions, collective bargaining,
independent contractors: those strikes and lockouts, closed
engaged in legitimate job shop, wages, working
contracting and those who conditions, hours of labor and
have unique skills and talents similar subjects.
that set them apart from In contracts of employment,
ordinary employees. the employer and the employee
Since no employer-employee are not on equal footing. Thus,
relationship exists between it is subject to regulatory
independent contractors and review by the labor tribunals
their principals, their contracts and courts of law. The law
are governed by the Civil Code serves to equalize the unequal.
provisions on contracts and The labor force is a special
other applicable laws. class that is constitutionally
protected because of the
inequality between capital and
labor. This presupposes that
the labor force is weak.

Q: Is there an employer-employee
relationship in a boundary-hulog scheme?
A: Yes. Under the boundary-hulog scheme, a
dual juridical relationship was created
between petitioner and respondent: that of
employer-employee and vendor-vendee. The
boundary system is a scheme by an
owner/operator engaged in transporting
passengers as a common carrier to primarily
govern the compensation of the driver, that is,
the latter's daily earnings are remitted to the
owner/operator less the excess of the
boundary which represents the driver's
compensation. Under this system, the
owner/operator exercises control and
supervision over the driver. (See Villamaria v.
CA)

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Q: Can an employer-employee relationship considered as field personnel because they
exist between a cooperative and an are under the control and constant
owner-member? supervision of the bus companies while in the
A: Yes. A cooperative can be likened to a performance of their work).
corporation with a personality separate and
distinct from its owners-members. An
owner-member of a cooperative can be an B. Contracting and Subcontracting
employee of the latter and an
employer-employee relationship can exist
between them. Articles 106-109, Labor Code
ARTICLE 106. CONTRACTOR OR
In its by-laws, its Board of Directors directs, SUBCONTRACTOR.
controls, and supervises the business and Whenever an employer enters into a contract
manages the property of the cooperative. with another person for the performance of the
Clearly then, the management of the affairs of former's work, the employees of the contractor
the respondent cooperative is vested in its and of the latter's subcontractor, if any, shall be
Board of Directors and not in its paid in accordance with the provisions of this
Code.
owners-members as a whole. Therefore, it is

completely logical that the respondent In the event that the contractor or subcontractor
cooperative, as a juridical person represented fails to pay the wages of his employees in
by its Board of Directors, can enter into an accordance with this Code, the employer shall
employment with its owners-members (See be jointly and severally liable with his contractor
Republic v. ASIAPRO). or subcontractor to such employees to the
extent of the work performed under the contract,
Q: What is the nature of employment of field in the same manner and extent that he is liable
personnel? to employees directly
A: As a general rule, field personnel are those employed by him.

whose performance of their job/service is not
The Secretary of Labor and Employment may, by
supervised by the employer or his appropriate regulations, restrict or prohibit the
representative, the workplace being away contracting-out of labor to protect the rights of
from the principal office and whose hours and workers established under this Code. In so
days of work cannot be determined with prohibiting or restricting, he may make
reasonable certainty; hence, they are paid appropriate distinctions between labor-only
specific amount for rendering specific service contracting and job contracting as well as
or performing specific work. If required to be differentiations within these types of contracting
at specific places at specific times, and determine who among the parties involved
employees including drivers cannot be said to shall be considered the employer for purposes
of this Code, to prevent any violation or
be field personnel despite the fact that they
circumvention of any provision of this Code.
are performing work away from the principal
office of the employee. . . . There is "labor-only" contracting where the
person supplying workers to an employer does
. . . At this point, it is necessary to stress that not have substantial capital or investment in the
the definition of a "field personnel" is not form of tools, equipment, machineries, work
merely concerned with the location where the premises, among others, and the workers
employee regularly performs his duties but recruited and placed by such person are
also with the fact that the employee's performing activities which are directly related
performance is unsupervised by the employer. to the principal business of such employer. In
such cases, the person or intermediary shall be

considered merely as an agent of the employer
Field personnel are those who regularly who shall be responsible to the workers in the
perform their duties away from the principal same manner and extent as if the latter were
place of business of the employer and whose directly employed by him.
actual hours of work in the field cannot be
determined with reasonable certainty (See
DASCO v. PhilTransco, where the Court ruled
that drivers and/or conductors cannot be
/
ARTICLE 107. INDIRECT EMPLOYER. — The ○ If they are, they are the
provisions of the immediately preceding article employers of their workers,
shall likewise apply to any person, partnership, hence, answerable for the
association or corporation which, not being an obligations of an employer,
employer, contracts with an independent e.g., SSS registration, payment
contractor for the performance of any work, of wages and employment
task, job or project. benefits, duty to bargain, and
so forth.
○ In relation to their respective
ARTICLE 108. POSTING OF THE BOND. — An
employees, “B” and “C” are the
employer or indirect employer may require the
contractor or subcontractor to furnish a bond direct employers, and “A” is
equal to the cost of labor under contract, on indirect employer.
condition that the bond will answer for the ● Articles 106 to 109 do allow them but
wages due the employees should the contractor lay down certain policy to protect the
or subcontractor, as the case may be, fail to pay workers. Such codal provisions cannot
the same. be changed or disregarded by
administrative regulations.

ARTICLE 109. SOLIDARY LIABILITY. — The
provisions of existing laws to the contrary Department Order No. 174, Series of 2017
notwithstanding, every employer or indirect

employer shall be held responsible with his
contractor or subcontractor for any violation of
Q: What is the Guiding Principle?
any provision of this Code. For purposes of A: The guiding principles state that:
determining the extent of their civil liability under Non-permissible forms of contracting and
this Chapter, they shall be considered as direct subcontracting arrangements undermine the
employers. Constitutional and statutory right to the

security of tenure of workers (Sec. 1, DO 174,
CONTRACTING AND SUBCONTRACTING IN Series of 2017).
GENERAL
Note: These Rules apply to all parties in an
Example: If Company “A,” engaged in arrangement where employer-employee
restaurant business, needs to put up a relationship exists. Contractors and
building, it concludes a contract with a subcontractors referred to in these Rules are
construction company (“B”) which, in turn, prohibited from engaging in recruitment and
hires the services of another contractor (“C”) placement activities (as defined as Article
to handle certain aspects or phases of the 13[b] of the Labor Code, whether local or
construction project. “B” and “C” will need to overseas employment (Sec. 2, DO 174, Series
hire people, and they will all work to of 2017).
accomplish “A’s” objective to have a new
building. But “A,” the project owner, does not Q: What is Contracting or Subcontracting?
necessarily become their “employer” and they, A: “Contracting” or “Subcontracting” is an
its “employees,” as those terms are arrangement whereby a principal agrees to
understood in labor law context. farm out to a contractor the performance or
completion of a specific job or work within a
The employer-employee relationship definite or predetermined period, regardless of
(explained under Article 82) exists between whether such job or work is to be performed
“B” and the workers he hires, and between “C” or completed within or outside the premises
and his workers, but “A” is not an employer to of the principal (Sec. 3[c], DO 174, Series of
“B” nor to “C” nor to their respective groups of 2017).
workers.
● The arrangements among “A” “B” and Four features of legitimate contracting:
“C,” and the respective workers are not (1) Parties: Principal enters into a contract
at all unlawful, if “B” and “C” are fully with a contractor, or if the principal is himself
qualified contractors. a contractor, he enters into contract with a
sub-contractor.
/
(2) Specific job: The contract calls for the Q: Who is a Contractor?
performance or the completion of a specific A: A contractor is any person or entity
job, work, or service. engaged in a legitimate contracting or
(3) Period: Such job, work, or service is to be subcontracting arrangement providing
performed or completed within a definite or services for a specific job or undertaking
predetermined period; and farmed out by principal under a Service
(4) Location: The contracted job, work, or Agreement (Sec. 3[d], DO 174, Series of 2017).
service may be performed or completed
inside or outside the premises of the principal. Q: Who is a Contractor’s Employee?

A: A contractor’s employee is one hired to
Attributes of a job contractor: perform or to complete a job or work farmed
● Legitimate contracting: Job out by the principal pursuant to a Service
contracting by a legitimate contractor. Agreement with the latter (Sec. 3[e], DO 174,
○ What is contracted is the Series of 2017).
performance and completion
of a designated job, and not Q: What Laws are Applicable to Work
just the supplying of people to Relationships between the Principal,
do the job. Contractor, and Contractor’s Employees?
● And the contractor is "legitimate job A:
contractor" if:
(1) He conducts an independent Between Civil Code and pertinent
business; Principal and commercial laws; No EER
(2) With adequate capital to do the job Contractor
and pay his people; and *Service agreement
(3) Exercises direct control over the
performance of the workers. Between Labor Code and special
Contractor labor laws; EER
Q: What is the Trilateral Relationship? and His
A: In legitimate contracting, there exists a Employees *Employment contract
trilateral relationship under which there is a
Between No EER; Indirect employer
contract for specific job, work, or service
Principal and
between the principal (contractee) and the
Contractor’s
contractor/subcontractor, and a contract of
Employees
employment between the
contractor/subcontractor and its workers.
● Three parties: Q: What are the Prohibitions?
1. Principal, which decides to A: The contracting is not lawful, not legitimate:
farm out a job or service to a (1) If it is labor-only contracting (Sec. 5, DO
contractor or subcontractor; 174, Series of 2017); and
2. Contractor/subcontractor, (2) if the arrangement is otherwise
which has the capacity to considered unlawful for being against public
independently undertake the policy (Sec. 6, DO 174, Series of 2017).
performance of the job, work, or
service; and In any of these situations the so-called
3. Workers, engaged by the contracting arrangement will have to be
contractor/subcontractor to disregarded for the purpose of establishing an
accomplish the job, work, or service. employer-employee relationship; the person
for whom the workers work will have to be
Q: Who is a Principal? declared as the employer. In fact, in labor-only
A: A principal is any natural or juridical entity, contracting, there is really no contracting and
whether an employee or not, who puts out or no contractor. There is only a representative
farms out a job or work to a contractor (Sec. to gather and supply people to the principal.
3[j], DO 174, Series of 2017).

/
Q: What is Labor-Only Contracting? Q: What are the Arrangements that Violate
A: Section 5 provides that: Public Policy?
“Labor-only contracting, which is totally A: Section 6 reads:
prohibited, refers to an arrangement where:
(1) (a) The contractor or subcontractor does
not have substantial capital, or
(b) The contractor or subcontractor does not
have investments in the form of tools,
equipment, machineries, supervision, work
promises, among others, and
(c) The contractor’s or subcontractor’s
employees are recruited and placed are
performing activities which are directly related
to the main business operation of the principal;
or

(2) The contractor or subcontractor does not
exercise the right to control over the
performance of the work of the employee.”

Note: To have LOC, the essential element of Q: What is the Extent of the Employer’s
supplying workers to another is not enough; Liability in Invalid Contracting and Violation
To it must be added either one of two of Other Prohibitions?
confirming elements. A: Since labor-only contracting is not
● The confirming elements are either: legitimate contracting, its effect is the
1) lack of substantial capitaI or creation of employer-employee relationship
investment and performance of between the principal and the workers hired
activities directly related r usually by the alleged contractor. There is
necessary or desirable to the transference or absorption of employment
principal's main business; and relationship from the alleged contractor to his
2) the contractor does not client/principal. The latter, therefore,
exercise control over the shoulders all the obligations of an employer,
performance of the employees. not just the payment of wages.

If the essential element is absent, there can Where the contracting is found to be
be no LOC. And even if the essential element labor-only contracting or any of the forms
is present, but confirming element one or two prohibited for being contrary to public policy,
is absent, there is still no LOC. the liability is immediately and directly
imposed upon the principal (Sec. 7, DO 174,
Q: What is Substantial Capital? Series of 2017).

A: Substantial capital refers to paid-up capital
stocks/shares of at least five three million In such prohibited arrangements, the statute
pesos (P5,000,000) in the case of a makes the employer directly responsible to
the employees of the "labor-only" contractor
corporation, partnerships and cooperatives, or,
in the case of a single proprietorship, a net as if such employees had been directly hired
by the employer.
worth of at least five million pesos
(P5,000,000) (Sec. 3[l], DO 174, Series of
2017). In other words, the law itself implies or
establishes an employer-employee

relationship between the employer and the
employees-of the "labor-only" contractor, this

time for a comprehensive purpose: preventing
any violation or circumvention of any
provision of this Code.

The principal's liability becomes direct and
total as that of a direct hiring employer.
/
Q: What is Legitimate Contracting – that is, Under the Code and the Rules, therefore, the
Independent Contractor/Job Contracting? liability of the principal in legitimate
A: contracting is not only for unpaid wages but,
broadly, for any violations of the Labor Code.

Q: What are the Rights of the Contractor’s
Employees?
A:

The Court explains that an independent
contractor is one who exercises independent
employment and contracts to do a piece of
work according to his own methods and
without being subject to control of his The employees of a legitimate contractor are
employer except as to the result of the work. entitled to the same legal rights as employees
of a principal or any other contractor or
The significant factor in determining the subcontractor.
relationship of the parties is the presence or
absence of supervisory authority to control An important item in the annual report of a
the method and the details of performance of contractor is a sworn undertaking that the
the service being rendered, and the degree to benefits from the Social Security System
which the principal may intervene to exercise (SSS), the Home Development Mutual Fund
such control. The presence of such power of (HDMF), PhilHealth, Employees
control is indicative of an employment Compensation Commission (ECC), and
relationship, while absence thereof is remittances to the Bureau of Internal Revenue
indicative of independent contractorship. (BIR) due its contractual employees have been
made during the subject reporting period
The test to determine the existence of (Sec. 22, DO 174, Series of 2017).
independent contractorship is whether one
claiming to be an independent contractor has To strengthen the labor rights of contractor’s
contracted to do the work according to his employees, certain conditions are expressly
own methods and without being subject to the required to be stipulated in the employment
control of the employer except only as to the contract (Sec. 11, DO 174, Series of 2017) -
result of the work.

Q: What is the Extent of Principal’s Liability in
Legitimate Contracting?
A: Section 7 provides that, “[i]n the event that
there is a finding that the contractor or

subcontractor is engaged in labor-only

contracting under Section 5 and other illicit

forms of employment arrangements under

Section 6 of these rules, the principal shall be

deemed the direct employer of the

contractor’s or subcontractor’s employees.”

It continues to Section 9 as follows:

/
Department Circular No. 1, Series of 2017

Q: What are the Instances where DO 174,
Series of 2017 Does Not Apply?
A: Department Circular No. 1 provides that:

Q: What are the Rules on the Registration of
Contractors?
A: Aside from the mandatory stipulations in
the employment contract, another device to
secure the employees' labor rights is the Other industries were DO 174 do apply are: (1)
registration of contractors with the DOLE construction industry; and (2) private security
regional office where the applicant contractor agencies.
principally operates.
Also:
The DO details the registration requirements,
semi-annual reporting, and the grounds of the
cancellation of registration.

The applicant for registration should present
proof of substantial capital, copy of
registration certificates from government Recall:
regulatory agencies, e.g., SEC, DTI, etc., and
among other documents its audited financial ELEMENTS OF LABOR-ONLY
statements. CONTRACTING:10
(1) The contractor or subcontractor does not
The rules unequivocally state: "Failure to have (a) substantial capital, or (b)
register shall give rise to the presumption that investments in the form of tools, equipment,
the contractor is engaged in labor-only machineries, work premises, among others;
contracting." and the contractor’s or subcontractor’s
employees are recruited and placed are
Note: Registration is not proof of being an performing activities which are directly
independent contractor. The Certificate of related to the principal business of the
Registration as Independent Contractor is not employer; or
a conclusive evidence of being contractor. (2) The contractor or subcontractor does not
exercise the right to control over the
The fact of registration simply prevents the performance of the work of the employee.
legal presumption of being a mere labor-only
contractor from arising. ELEMENTS OF LEGITIMATE JOB
CONTRACTOR:
Actual conduct of the relationship, not mere (1) The contractor or subcontractor is
registration, proves independent conducting an independent business;
contractorship. Facts must show that the (2) The contractor or subcontract has (a)
contractor has independent business and that substantial capital, or (b) investments in the
he performs the contracted job free from
control and supervision of the principal except
See PH Airlines v. Ligan; San Miguel Corporation v.
10
as regards the pre-agreed result. Aballa; Manila Electric Company v. Benamira;
Aliviado v. Procter & Gamble; Coca-cola Bottlers v.
Agito; Manila Water v. Dalumpines; Babas v.
Lorenzo Shipping; Quintanar v. Coca-cola Bottlers
PH;;
/
form of tools, equipment, machineries, work Beneficiaries Multipurpose Cooperative; also
premises, among others; and the contractor’s Manila Memorial Park Cemetery v. Lluz).
or subcontractor’s employees recruited and
placed are performing activities which are not In labor-only contracting, the statute creates
directly related to the principal business of the an employer-employee relationship for a
employer; or comprehensive purpose: to prevent a
(3) The contractor or subcontractor has the circumvention of labor laws. The contractor is
right to control over the performance of the considered merely an agent of the principal
employee. employer and the latter is responsible to the
employees of the labor-only contractor as if
The existence of an independent and such employees had been directly employed
permissible contractor relationship is by the principal employer (See San Miguel
generally established by the following criteria: Corporation v. Aballa; also Teng v. Pahagac).11
whether or not the contractor is carrying on an
independent business; the nature and extent The language of a contract is not
of the work; the skill required; the term and determinative of the parties' relationship;
duration of the relationship; the right to assign rather it is the totality of the facts and
the performance of a specified piece of work; surrounding circumstances of the case.
the control and supervision of the work to
another; the employer's power with respect to THE EXTENT OF THE LIABILITY OF THE
the hiring, firing and payment of the PRINCIPAL:
contractor's workers; the control of the GENERAL RULE: The solidary liability of the
premises; the duty to supply the premises indirect employer with his
tools, appliances, materials and labor; and the contractor/subcontractor under Art. 109
mode, manner and terms of payment (See includes only unpaid wages. This does not
DOLE Phils. v. Esteva). include payment of separation pay.
EXCEPTION: The only instance when the
The test to determine the existence of principal can also be held liable with the
independent contractorship is whether one independent contractor or subcontractor for
claiming to be an independent contractor has the backwages and separation pay of the
contracted to do the work according to his latter's employees is when there is proof that
own methods and without being subject to the the principal conspired with the independent
control of the employer, except only as to the contractor or subcontractor in the illegal
results of the work. dismissal of the employees (See Meralco
Industrial Engineering Services v. NLRC).
In legitimate labor contracting, the law creates
an employer-employee relationship for a Q: Are forwarder’s employees regular
limited purpose, i.e., to ensure that the employees of the company?
employees are paid their wages. The principal A: No. There are distinctions between the
employer becomes jointly and severally liable work of the forwarders' employees and that of
with the job contractor, only for the payment the regular company employees.
of the employees' wages whenever the
contractor fails to pay the same. Other than The job of forwarding consists not only of a
that, the principal employer is not responsible single activity but of several services that
for any claim made by the employees. complement one another and can best be
viewed as one whole process involving a
GENERAL RULE: A contractor is presumed to
be a labor-only contractor. 11
Simply put, [a] finding that a contractor is a
EXCEPTION: Unless such contractor labor-only contractor is equivalent to a declaration
overcomes the burden of proving that it has that there is an employer-employee relationship
the substantial capital or investments; it is between the principal, and the workers of the
conducting an independent business; and it labor-only contractor; the labor-only contractor is
does exercise the right of control over deemed only as the agent of the principal (See
performance of the work of the employee Diamond Farms v. Farms Agrarian Reform
(See Diamond Farms v. Farms Agrarian Reform Beneficiaries Multipurpose Cooperative).
/
package of services. These services include through its own employees such as the
packing, loading, materials handling and respondents (See Nestle PH v. Puedan, Jr).
support clerical activities, all of which are
directed at the transport of company goods,
usually to foreign destinations.
CLASSES OF EMPLOYEES

The regular company employees, to be sure,
work for the company under its supervision Articles 293 and 295-296, Labor Code
and control, but forwarder employees work for ART. 293. COVERAGE.
the forwarder in the forwarder's own operation The provisions of this Title shall apply to all
that is itself a contracted work from the establishments or undertakings, whether for
company. The company controls its profit or not.
employees in the means, method and results
of their work, in the same manner that the
forwarder controls its own employees in the ART. 295. REGULAR AND CASUAL
EMPLOYMENT.
means, manner and results of their work.
The provisions of written agreement to the
contrary notwithstanding and regardless of the
The skills requirements and job content oral agreement of the parties, an employment
between forwarders' jobs and bargaining unit shall be deemed to be regular where the
jobs may be the same, and they may even employee has been engaged to perform
work on the same company products, but activities which are usually necessary or
their work for different purposes and for desirable in the usual business or trade of the
different entities completely distinguish and employer, except where the employment has
separate forwarder and company employees been fixed for a specific project or undertaking
from one another (See Temic Automotive v. the completion or termination of which has
been determined at the time of the
Temic Automotive PH Employees-Union).
engagement of the employee or where the
work or service to be performed is seasonal in
Q: Are route helpers regular employees of the nature and the employment is for the duration
company? of the season.
A: Yes. The work of the salesmen,
constituting distribution and sale of An employment shall be deemed to be casual if
Coca-Cola products, is indispensable to the it is not covered by the preceding paragraph:
principal business of Coca-Cola - that is, Provided, That any employee who has rendered
manufacturing of softdrink products. Further, at least one year of service, whether such
the repeated rehiring of such workers and the service is continuous or broken, shall be
considered a regular employee with respect to
continuing need for their services clearly
the activity in which he is employed and his
attest to the necessity or desirability of their employment shall continue while such activity
services in the regular conduct of the exists.
business or trade of company (See Quintanar
v. Coca-Cola Bottlers PH; also Basan v.
Coca-cola). ART. 296. PROBATIONARY EMPLOYMENT.
Probationary employment shall not exceed six
Q: Are employees of a company engaged in (6) months from the date the employee started
the business of selling, distributing, and working, unless it is covered by an
marketing goods regular employees of the apprenticeship agreement stipulating a longer
period. The services of an employee who has
manufacturing company?
been engaged on a probationary basis may be
A: No. In line with the distributorship terminated for a just cause or when he fails to
agreement, the relationship is not that of a qualify as a regular employee in accordance
principal and contractor (regardless of with reasonable standards made known by the
whether labor-only or independent), but that of employer to the employee at the time of his
a seller and buyer/re-seller. The nature of such engagement. An employee who is allowed to
arrangement is that the goods Nestle PH, Inc. work after a probationary period shall be
manufactures are distributed to the market considered a regular employee.
through various distributors, e.g., ODSI, that in
turn, re-sell the same to designated outlets
/
Q: When can a probationary employee be
Probationary Employees
terminated?
A: A probationary employee cannot be
Q: Who are probationary employees? removed except for cause during the period of
A: A probationary employee under Art. 295 of probation. Although a probationary or
the Labor Code is one who is on tentative temporary employee has limited tenure, he
employment during which the employer still enjoys security of tenure. During his
determines whether he is qualified for tenure of employment or before his contract
permanent employment. expires, he cannot be removed except for
cause as provided for by law.
GENERAL RULE: In all cases involving
employees engaged on probationary basis, There are three limitations to terminating a
the employer shall make known to the probationary employment:
employee at the time s/he is hired the (1) it must accord with the requirements of
standards by which s/he will qualify as a the contract;
regular employee.12 (2) the dissatisfaction of the employer is real
● Failure to qualify as a regular and in good faith, not feigned to circumvent
employee in accordance with the the law or contract; and
reasonable standards of the employer (3) there is no unlawful discrimination against
is a just cause for terminating a the employee.
probationary employee.
EXCEPTION: When the job is self-descriptive in GROUNDS FOR TERMINATION OF
nature, for instance, in the case of maids, PROBATIONARY EMPLOYMENT
cooks, drivers, or messengers. The services of an employee who has been
engaged on a probationary basis may be
Q: How long is the probationary period? terminated for any of the following:
A: GENERAL RULE: 6 months (or 180 days, (1) a just cause;
conformity with Art. 13 of the Civil Code which (2) an authorized cause; and
provides that a “month” undesignated by (3) when s/he fails to qualify as a regular
name is understood to consist of 30 days.) employee in accordance with reasonable
EXCEPTION: When the parties to an standards prescribed by the employer (See
employment contract agree otherwise. Abbott Laboratories v. Alcaraz).

It is an elementary rule in the law on labor If the termination is brought about by the
relations that a probationary employee failure of an employee to meet the standards
engaged to work beyond the probationary of the employer in case of probationary
period of six months, shall be considered a employment, it shall be sufficient that a
regular employee (See Umali v. Hobbywing written notice is served the employee, within a
Solutions, Inc., citing Dusit Hotel v. Gatbonton). reasonable time from the effective date of
termination.
Q: May the employer and employee validly
agree to extend the probationary period Note that, basic knowledge and common
beyond 6 months? sense dictate that the adequate performance
A: Yes. Such an extension may lawfully be of one's duties is, by and of itself, an inherent
agreed upon. A voluntary agreement and implied standard for a probationary
extending the original probationary period, at employee to be regularized; such is a
the employee’s request, to give the employee regularization standard which need not be
a second chance to pass the probation literally spelled out or mapped into technical
standards. indicators in every case. In this regard, it must
be observed that the assessment of adequate
duty performance is in the nature of a
management prerogative which when
reasonably exercised should be respected.

See PNOC v. Buenviaje.
12
/
(1) "project employees," the completion or
Regular Employees termination of which is more or
less determinable at the time of employment,
such as those employed in connection with a
Q: Who are regular employees? particular construction project, and
A: The law provides for two kinds of regular (2) "seasonal employees" whose employment
employees, namely: by its nature is only desirable for a limited
(1) those who are engaged to perform period of time.
activities which are usually necessary
or desirable in the usual business or Even then, any employee who has rendered at
trade of the employer; and least one year of service, whether continuous
(2) those who have rendered at least one or intermittent, is deemed regular with respect
year of service, whether continuous or to the activity performed and while such
broken, with respect to the activity in activity actually exists (See ABS-CBN v.
which they are employed. 13 Nazareno).

In other words, regular status arises from Q: What is the reckoning date for determining
either the nature of work of the employee or his/her regularization?
the duration of his employment. A: The reckoning date is his/her hiring date.

What determines regularity or casualness is While the actual regularization of these
not the employment contract, written or employees entails the mechanical act of
otherwise, but the nature of the job. If the job issuing regular appointment papers and
is usually necessary or desirable to the main compliance with such other operating
business of the employer, then employment is procedures as may be adopted by the
regular. employer, it is more in keeping with the intent
and spirit of the law to rule that the status of
The primary standard of determining a regular regular employment attaches to the casual
employment is the reasonable connection worker on the day immediately after the end
between the particular activity performed by of his/her first year of service.
the employee in relation to the usual business
or trade of the employer. The test is whether To rule otherwise, and to instead make their
the former is usually necessary or desirable in regularization dependent on the happening of
the usual business or trade of the employer. some contingency or the fulfillment of certain
The connection can be determined by requirements, is to impose a burden on the
considering the nature of the work performed employee which is not sanctioned by law (See
and in relation to the scheme of the particular Kimberly Clark Phils. v. Secretary).
business or trade in its entirety.
Q: Does engagement through fixed term
Also, if the employee has been performing the employment mean that one cannot be
job for at least one year, even if the regularized?
performance is not continuous or merely A: No. Fixed-term contract employees are
intermittent, the law deems the repeated and those where there is a day certain agreed by
continuing need for its performance as the parties for the commencement and
sufficient evidence of the necessity if not termination of their employment relationship.
indispensability of that activity to the
business.14 Hence, the employment is also Recall that, the test for determining regular
considered regular, but only with respect to employment is whether there is a reasonable
such activity and while such activity exists. connection between the employee’s activities
and the usual business of the employer. The
Note that, not considered regular employees nature of work must be necessary or desirable
are: in the usual business or trade of the employer
(See Fuji Television v. Espiritu).
13
See Rowell Industrial Corporation v. CA; PLDT v.
Arceo.
14
See Samonte v. La Salle Greenhills, Inc.
/
Q: Can “reliever” employees be regularized? nature of their employment (See A. Nate
A: Yes. Casket Maker v. Arango).

In Pier 8 Arrastre & Stevedoring v. Boclot,
Casual Employees
where the employee is a reliever, the Court
held that it is an industry practice in port
services to hire "reliever" stevedores in order Q: Who are casual employees?
to ensure smooth-flowing 24-hour stevedoring A: Casual employees are those that are
and arrastre operations in the port area. engaged to perform a job, work, or service
Serving as a stevedore, the employee which is not usually necessary or desirable to
performs tasks necessary or desirable to the the business of the employer, and such job,
usual business of petitioners. However, it work, or service is for a definite period made
should be deemed part of the nature of his known to the employee at the time of his/her
work that he can only work as a stevedore in engagement.
the absence of the employee regularly
employed for the very same function. A casual employee is casual only for one year.
His/her work is neither regular, nor project nor
Although the employee, who has performed seasonal, but if s/he has worked for at least
actual stevedoring services for only for an one year — whether continuously or not — he
accumulated period of 228.5 days does not becomes a regular employee. It is not his/her
fall under the classification of a casual turned nature of work but the passage of time that
regular employee after rendering at least one gives him/her a regular status.
year of service, whether continuous or
intermittent, he is still deemed to be a regular But s/he is uniquely regular because that
employee on the basis of the pertinent status attaches only for the particular activity
provisions under the CBA. Applying the that s/he was doing when still a casual.
foregoing provisions of the CBA, he should be
considered a regular employee after six Project Employees
months of accumulated service. It is clearly
stipulated therein that the company shall
agree to convert to regular status all Q: Who are project employees?
incumbent probationary or casual employees A: A project employee is assigned to a project
and workers who have served the company which begins and ends at determined or
for an accumulated service term of determinable times.
employment of not less than six months from
the original date of hiring. Unlike regular employees who may only be
dismissed for just and/or authorized causes
In The Peninsula Manila v. Alipio, where the under the Labor Code, the services of
employee was a reliever nurse, although her employees who are hired as "project[-based]
services were engaged by the hotel employees" may be lawfully terminated at the
intermittently, Her services as a reliever nurse completion of the project.
were undoubtedly necessary and desirable in ● The Omnibus Rules Implementing the
the hotel’s business of providing comfortable Labor Code provides that if a project
accommodation to its guests. In any case, employee is terminated due to the
since she had rendered more than one year of completion of the contract or phase
intermittent service as a reliever nurse at the thereof, no prior notice is required (See
hotel, she had become a regular employee. DM Consunji v. Gobres).

Q: Can pakyaw workers be regularized? The principal test for determining whether
A: Yes. Pakyaw workers are considered particular employees are properly
regular employees for as long as their characterised as "project[-based] employees"
employers exercise control over them. as distinguished from "regular employees," is
Pakyaw refers to the mode of compensation, whether or not the employees were assigned
that is, on a per-piece basis, and not the to carry out a "specific project or undertaking,"
the duration (and scope) of which were
/
specified at the time they were engaged for (1) The duration of the specific/identified
that project. undertaking for which the worker is
engaged is reasonably determinable;
The project could either be: (2) Such duration, as well as the specific
(1) a particular job or undertaking that is work/service to be performed, is
within the regular or usual business of the defined in an employment agreement
employer company, but which is distinct and and is made clear to the employee at
separate, and identifiable as such, from the the time of hiring;
other undertakings of the company; or (3) The work/service performed by the
(2) a particular job or undertaking that is not employee is in connection with the
within the regular business of the corporation. particular project/undertaking for
which he is engaged;
For an employee to be considered (4) The employee, while not employed and
project-based, the employer must show awaiting engagement, is free to offer
compliance with 2 requisites: his services to any other employer;
(1) The employee was assigned to carry out a (5) The termination of his employment in
specific project or undertaking; and the particular project/undertaking is
(2) The duration and scope of which were reported to the DOLE Regional Office
specified at the time they were engaged for having jurisdiction over the workplace
such project.15 within 30 days following the date of
his separation from work, using the
A project employee or a member of a work prescribed form on employees’
pool may acquire the status of a regular terminations/suspensions; and
employee when the following concur: (6) An undertaking in the employment
(1) There is a continuous rehiring of project contract by the employer to pay
employees even after cessation of a project; completion bonus to the project
and employee as practiced by most
2) The tasks performed by the alleged “project construction companies (See Filipinas
employee” are vital, necessary and Pre-fabricated Building Systems v.
indispensable to the usual business or trade Puente).
of the employer.16
Q: Does the rehiring of construction workers
However, the length of time during which the confer upon them regularized status?
employee was continuously re-hired is not A: The rehiring of construction workers on a
controlling, but merely serves as a badge of project-to-project basis does not confer upon
regular employment. them regular employment status as it is only
dictated by the practical consideration that
Note: With reference to the construction experienced construction workers are more
industry, DOLE D.O. No. 19, Series of 1993 , preferred (See E. Ganzon Inc. and Eulalio
make it clear that a project employee is one Ganzon v. Ando, Jr.).
whose employment has been fixed for a
specific project or undertaking the completion Note that, It is not uncommon for a
or termination of which has been determined construction firm to hire project employees to
at the time of the engagement of the perform work necessary and vital for its
employee or where the work or services to be business. In the construction industry, an
performed is seasonal in nature and the employee's work depends on the availability
employment is for the duration of the season. of projects. The employee's tenure is not
The indicators that the employee is a project permanent but coterminous with the work to
employee are as follows: which he is assigned. Generally, length of
service provides a fair yardstick for
15
See Gadia v. Sykes Asia; also Leyte Geothermal determining when an employee initially hired
Power Progressive Employees Union v. PNOC-EDC; on a temporary basis becomes a permanent
Pasos v. PNCC; Exodus International Construction one, entitled to the security and benefits of
v. Biscocho; Herma Shipyard, Inc. v. Esguerra. regularization. But this standard will not be
16
See Poseidon v. NLRC; Malicdem v. Marulos fair, if applied to the construction industry,
Industrial Corp;
/
simply because construction firms cannot from the principal office and whose hours and
guarantee work and funding for its payrolls days of work cannot be determined with
beyond the life of each project (See Minsola v. reasonable certainty; hence, they are paid
New City Builders, Inc.). specific amount for rendering specific service
or performing specific work.

Seasonal Employees
It is necessary to stress that the definition of a
"field personnel" is not merely concerned with
Q: Who are seasonal employees? the location where the employee regularly
A: Regular seasonal employees are those performs his duties but also with the fact that
called to work from time to time. the employee's performance is unsupervised
by the employer (See DASCO v. PhilTranco).
The nature of their relationship with the
employer is such that during off season they
Teachers and Professors
are temporarily laid off but during summer
season they are reemployed, or when their
services may be needed. They are not, strictly Q: When can a private school teacher be
speaking, separated from the service but are regularized?
merely considered as on leave of absence A: For "academic personnel" in private
without pay until they are reemployed. Their schools, colleges and universities,
employment relationship is never severed but probationary employment is governed by
only suspended. As such those employees Section 92 of the 1992 Manual of Regulations
can be considered as in the regular for Private Schools:
employment of the employer.17
Subject in all instances to compliance with the
Seasonal employees are in regular Department and school requirements, the
employment because of the nature of their job probationary period for academic personnel
and not because of the length of time they shall not be:
have worked. The worker is “seasonal” if the (1) For those in elementary and secondary
employment is only for the duration of one levels - more than 3 consecutive years
season.18 of satisfactory service;
(2) For those in tertiary level - 6
Note: The nature of the employment does not consecutive regular semesters of
depend solely on the will or word of the satisfactory service; and
employer or on the procedure for hiring and (3) For those in the tertiary level where
the manner of designating the employee. collegiate courses are offered on a
Rather, the nature of the employment depends trimester basis - 9 consecutive
on the nature of the activities to be performed trimesters of satisfactory service.
by the employee, considering the nature of the
employer's business, the duration and scope Section 93 of the Manual pertinently provides:
to be done, and, in some cases, even the Those who have served the probationary
length of time of the performance and its period shall be made regular or permanent.
continued existence (See Universal Robina Full-time teachers who have satisfactorily
Sugar Milling Corp. v. Acibo). completed their probationary period shall be
considered regular or permanent (See Colegio
del Santisimo Rosario v. Rojo).
Field Personnel

What this means is that, no vested right to a
Q: Who are field personnel? permanent appointment shall accrue until the
A: [F]ield personnel are those whose employee has completed the prerequisite
performance of their job/service is not three-year period necessary for the
supervised by the employer or his acquisition of a permanent status. However, it
representative, the workplace being away must be emphasized that mere rendition of
service for three consecutive years does not
See Benares v. Pancho; Gapayao v. Fulo.
17
automatically ripen into a permanent
See Hacienda Bino/Hortencia Starke v. Cuenca.
18
/
appointment. It is also necessary that the Q: Should the teachers’ probationary status
employee be a full-time teacher, and that the be disregarded simply because contracts
services he rendered are satisfactory. were fixed term?
A: No. As a rule, the Labor Code is
Q: How is the required 3-year probationary supplemented with respect to the period of
period for elementary and secondary school probation by special rules found in the Manual
teachers counted? of Regulations for Private Schools.
A: The said years are counted in school years
not calendar years. These standards, together with the just and
authorized causes for termination of
Note that, it is important that the contract of employment the Labor Code expressly
probationary employment specify the period provides, are the grounds available to
or term of its effectivity. The failure to terminate the employment of a teacher on
stipulate its precise duration could lead to the probationary status.
inference that the contract is binding for the
full three-year probationary period (See Magis Under the terms of the Labor Code, these
Young Achievers’ Learning Center v. Manalo). standards should be made known to the
teachers on probationary status at the start of
Q: Can a part-time teacher attain permanent their probationary period, or at the very least
status? under the circumstances of the present case,
A: No. A part-time employee19 does not attain at the start of the semester or the trimester
permanent status no matter how long he has during which the probationary standards are
served the school. to be applied. Further, as a matter of due
process, teachers on probationary
This is not to say that part-time teachers may employment have the right to know whether
not have security of tenure. The school could they have met the standards against which
not lawfully terminate a part-timer before the their performance was evaluated.20
end of the agreed period without just cause.
But once the period, semester, or term ends, In a situation where the probationary status
there is no obligation on the part of the school overlaps with a fixed-term contract not
to renew the contract of employment for the specifically used for the fixed term it offers,
next period, semester, or term (See St. Mary’s Article 281 should assume primacy and the
University v. CA). fixed-period character of the contract must
give way (See Mercado v. AMA Computer
College).
19
Section 45 of the 1992 Manual of Regulations for
Private Schools provides that full-time academic
Q: Can a CBA provision on tenure by default
personnel are those meeting all the following
supersede administrative regulations on
requirements:
qualifications for tertiary education teachers
(1) Who possess at least the minimum academic to attain regular status?
qualifications prescribed by the Department under A: No. While the contracting parties may
this Manual for all academic personnel; establish such stipulations, clauses, terms
(2) Who are paid monthly or hourly, based on the and conditions, as they may see fit, the right
regular teaching loads as provided for in the to contract is still subject to the limitation that
policies, rules and standards of the Department the agreement must not be contrary to law or
and the school; public policy.
(3) Whose total working day of not more than eight

hours a day is devoted to the school;
In Son v. UST, when the CBA was executed
(4) Who have no other remunerative occupation
elsewhere requiring regular hours of work that will between the parties, they had no right to
conflict with the working hours in the school; and include therein the provision relative to the
(5) Who are not teaching full-time in any other acquisition of tenure by default, because it is
educational institution. contrary to, and thus violative of the 1992
Revised Manual of Regulations for Private
All teaching personnel who do not meet the
foregoing qualifications are considered part-time.
20
See Colegio del Santisimo Rosario v. Rojo.
/
Schools that was in effect at the time. As
WAGES
such, said CBA provision is null and void, and
can have no effect as between the parties.
Article XIII, Section 3, 1987 Constitution
Conditional Employment Contract SECTION 3.
The State shall afford full protection to labor,
local and overseas, organized and unorganized,
An employment contract, like any other and promote full employment and equality of
contract, is perfected at the moment the employment opportunities for all.
parties come to agree upon its terms and
conditions, and thereafter, concur in the It shall guarantee the rights of all workers to
essential elements thereof. The contracting self-organization, collective bargaining and
parties may establish such stipulations, negotiations, and peaceful concerted activities,
including the right to strike in accordance with
clauses, terms, and conditions as they may
law. They shall be entitled to security of tenure,
deem convenient, provided they are not humane conditions of work, and a living wage.
contrary to law, morals, good customs, public They shall also participate in policy and
order, or public policy (See Sagun v. ANZ decision-making processes affecting their rights
Global Services and Operations). and benefits as may be provided by law.

The State shall promote the principle of shared
responsibility between workers and employers
and the preferential use of voluntary modes in
settling disputes, including conciliation, and
shall enforce their mutual compliance therewith

to foster industrial peace.

The State shall regulate the relations between
workers and employers, recognizing the right of
labor to its just share in the fruits of production
and the right of enterprises to reasonable
returns on investments, and to expansion and
growth.

Articles 218 and 290 (as amended by RA
10395), Labor Code

ARTICLE 218. DECLARATION OF POLICY.
A. It is the policy of the State:

(a) To promote and emphasize the primacy of
free collective bargaining and negotiations,
including
voluntary arbitration, mediation and conciliation,
as modes of settling labor or industrial disputes;
(b) To promote free trade unionism as an
instrument for the enhancement of democracy
and the promotion of social justice and
development;
(c) To foster the free and voluntary organization
of a strong and united labor movement;

(d) To promote the enlightenment of workers
concerning their rights and obligations as union
members and as employees;
(e) To provide an adequate administrative
machinery for the expeditious settlement of
labor or industrial disputes;
(f) To ensure a stable but dynamic and just
industrial peace; and

/
(g) To ensure the participation of workers in attaining industrial peace, and improving
decision and policy-making processes affecting productivity.
their rights, duties and welfare.
The TIPCs shall have the following functions:
B. To encourage a truly democratic method of
regulating the relations between the employers (1) Monitor the full implementation and
and employees by means of agreements freely compliance of concerned sectors with the
entered into through collective bargaining, no provisions of all tripartite instruments, including
court or administrative agency or official shall international conventions and declarations,
have the power to set or fix wages, rates of pay, codes of conduct, and social accords;
hours of work or other terms and conditions of
employment, except as otherwise provided (2) Participate in national, regional or
under this Code. industry-specific tripartite conferences which the
President or the Secretary of Labor and

Employment may call from time to time;
ARTICLE 290. TRIPARTISM, TRIPARTITE
CONFERENCES, AND TRIPARTITE INDUSTRIAL (3) Review existing labor, economic and social
PEACE COUNCILS. policies and evaluate local and international
developments affecting them;
(a) Tripartism in labor relations is hereby
declared a State policy. Towards this end, (4) Formulate, for submission to the President or
workers and employers shall, as far as to Congress, tripartite views, recommendations
practicable, be represented in decision and and proposals on labor, economic, and social
policy-making bodies of the government. concerns, including the presentation of tripartite
positions on relevant bills pending in Congress;
(b) The Secretary of Labor and Employment or
his duly authorized representatives may from (5) Advise the Secretary of Labor and
time to time call a national, regional, or Employment in the formulation or
industrial tripartite conference of implementation of policies and legislation
representatives of government, workers and affecting labor and employment;
employers, and other interest groups as the
case may be, for the consideration and adoption (6) Serve as a communication channel and a
of voluntary codes of principles designed to mechanism for undertaking joint programs
promote industrial peace based on social among government, workers, employers and their
justice or to align labor movement relations with organizations toward enhancing
established priorities in economic and social labor-management relations; and
development. In calling such conference, the
Secretary of Labor and Employment may (7) Adopt its own program of activities and rules,
consult with accredited representatives of consistent with development objectives.
workers and employers.
All TIPCs shall be an integral part of the
(c) A National Tripartite Industrial Peace Council organizational structure of the NTIPC. The
(NTIPC) shall be established, headed by the operations of all TIPCs shall be funded from the
Secretary of Labor and Employment, with twenty regular budget of the DOLE.
(20) representatives each from the labor and
employers' sectors to be designated by the
President at regular intervals. For this purpose, a
sectoral nomination, selection, and recall A. Concept and Definition
process shall be established by the DOLE in
consultation with the sectors observing the
'most representative' organization criteria of ILO Articles 97 and 98, Labor Code
Convention No. 144. Tripartite Industrial Peace
ARTICLE 97. DEFINITIONS.
Councils (TIPCs) at the regional or industry level
shall also be established with representatives
As used in this Title:
from government, workers and employers to
serve as a continuing forum for tripartite
(a) "Person" means an individual, partnership,
advisement and consultation in aid of
association, corporation, business trust, legal
streamlining the role of government,
representatives, or any organized group of
empowering workers' and employers'
persons.
organizations, enhancing their respective rights,
/
(b) "Employer" includes any person acting Omnibus Rules: Book III, Rule VII, Sections
directly or indirectly in the interest of an 2-9
employer in relation to an employee and shall SECTION 2. EFFECTIVITY. — The Act takes
include the government and all its branches, effect on July 1, 1989, 15 days following its
subdivisions and instrumentalities, all complete publication in two newspapers of
government-owned or controlled corporations general circulation on June 15, 1989 pursuant to
and institutions, as well as non-profit private Section 15 thereof.
institutions, or organizations.

(c) "Employee" includes any individual employed SECTION 3. AMOUNT OF MINIMUM WAGE
by an employer. INCREASE. — Effective July 1, 1989, the daily
statutory minimum wage rates of covered
(d) "Agriculture" includes farming in all its workers and employees shall be increased as
branches and, among other things, includes follows:
cultivation and tillage of soil, dairying, the
production, cultivation, growing and harvesting a) P25.00 for those in the National Capital
of any agricultural and horticultural Region;
commodities, the raising of livestock or poultry,
and any practices performed by a farmer on a b) P25.00 for those outside the National
farm as an incident to or in conjunction with Capital Region, except for the following:
such farming operations, but does not include
the manufacturing or processing of sugar, P20.00 for those in plantation agricultural
coconuts, abaca, tobacco, pineapples or other enterprises with an annual gross sales of less
farm products. than P5 million in the fiscal year immediately
preceding the effectivity of the Act;
(e) "Employ" includes to suffer or permit to
work. P15.00 for those in the following enterprises:
1. Non-plantation agriculture
(f) "Wage" paid to any employee shall mean the 2. Cottage/handicraft
remuneration or earnings, however designated, 3. Retail/Service regularly employing not more
capable of being expressed in terms of money, than 10 workers
whether fixed or ascertained on a time, task, 4. Business enterprises with a capitalization
piece, or commission basis, or other method of of not more than P500,000 and employing not
calculating the same, which is payable by an more than 20 workers.
employer to an employee under a written or
unwritten contract of employment for work
done or to be done, or for services rendered or SECTION 4. WHEN WAGE INCREASE DUE
to be rendered and includes the fair and OTHER WORKERS. —
reasonable value, as determined by the
Secretary of Labor and Employment, of board, a) All workers and employees who, prior to July
lodging, or other facilities customarily furnished 1, 1989, were already receiving a basic wage
by the employer to the employee. above the statutory minimum wage rates
provided under Republic Act 6640 but not over
"Fair and reasonable value" shall not include any P100.00 per day shall receive a wage increase
profit to the employer, or to any person affiliated equivalent to that provided in the preceding
with the employer. Section.

b) Those receiving not more than the following
ARTICLE 98. APPLICATION OF THE TITLE. monthly basic wage rates prior to July 1, 1989
This Title shall not apply to farm tenancy or shall be deemed covered by the preceding
leasehold, domestic service and persons subsection:
working in their respective homes in needle i) P3,257.50 — where the workers and
work or in any cottage industry duly registered employees work everyday, including premium
in accordance with law. payments for Sundays or rest days, special days
and regular holidays.

ii) P3,041.67 — where the workers and

employees do not work but considered paid on
rest days, special days and regular holidays.

/
iii) P2,616.67 — where the workers and
employees do not work and are not considered
paid on Sundays or rest days.
iv) P2,183.33 — where the workers and
employees do not work and are not considered
paid on Saturdays and Sundays or rest days.

c) Workers and employees who, prior to July 1,
1989, were receiving a basic wage of more than
P100.00 per day or its monthly equivalent, are
not by law entitled to the wage increase
provided under the Act. They may however,
receive wage increases through the correction c) For those who do not work and are not
of wage distortions in accordance with Section considered paid on Sundays or rest days:
16, Chapter I of these Rules.

Where 314 days =
SECTION 5. DAILY STATUTORY WAGE RATES. .
— The daily minimum wage rates of workers and
employees shall be as follows: XXXX

SECTION 6. SUGGESTED FORMULA IN
DETERMINING THE EQUIVALENT MONTHLY
STATUTORY MINIMUM WAGE RATES. — Without
prejudice to existing company practices,
agreements or policies, the following formula
may be used as guides in determining the
equivalent monthly statutory minimum wage
rates:

a) For those who are required to work everyday d) For those who do not work and are not
including Sundays or rest days, special days and considered paid on Saturdays or rest days:
regular holidays:

Where 262 days =

Where 390.90 days =

Note: For workers whose rest days fall on
b) For those who do not work but considered Sundays, the number of rest days in a year is
paid on rest days, special days and regular reduced from 52 to 51 days, the last Sunday of
holidays: August being a regular holiday under Executive
Order No. 201. For purposes of computation,
said holiday, although still a rest day for them, is

included in the ten regular holidays. For workers

whose rest days do not fall on Sundays, the
Where 365 days =
/
number of rest days is 52 days, as there are 52 Q: What are wages?
weeks in a year. A: As distinguished from salary:

Nothing herein shall be considered as WAGES SALARY
authorizing the reduction of benefits granted
under existing agreements or employer
Compensation for Denotes a higher
practices/policies.
manual labor, skilled degree of
or unskilled, paid at employment, or a
SECTION 7. BASIS OF MINIMUM WAGE. — The stated times, and superior grade of
statutory minimum wage rules prescribed under measured by the services, and
the Act shall be for the normal working hours, day, week, month, or implies a position.
which shall not exceed eight hours work a day. season.

Indicates Suggestive of a
SECTION 8. CREDITABLE WAGE INCREASE. — inconsiderable pay larger and more
a) No wage increase shall be credited as
for a lower and less permanent or fixed
compliance with the increases prescribed under
the Act unless expressly provided under
responsible compensation for
collective bargaining agreements; and, such character of more important
wage increase was granted not earlier than April employment. service.
1, 1989 but not later than July 1, 1989. Where
the wage increase granted is less than the
But, in our jurisdiction, the Supreme Court has
prescribed increase under the Act, the employer
shall pay the difference.
treated the words “wages” and “salary” as in
essence synonymous.
b) Anniversary wage increase provided in
collective agreements, merit wage increase, and Wages are defined as remuneration or
those resulting from the regularization or earnings, however designated, capable of
promotion of employees shall not be credited as being expressed in terms of money, whether
compliance thereto. fixed or ascertained on a time, task, piece, or
commission basis, or other method of
calculating the same, which is payable by an
SECTION 9. WORKERS PAID BY RESULTS. —
employer to an employee under a written or
a) All workers paid by results, including those
who are paid on piecework, takay, pakyaw, or
unwritten contract of employment for work
task basis, shall receive not less than the done or to be done, or for services rendered or
applicable statutory minimum wage rates to be rendered.
prescribed under the Act for the normal working
hours which shall not exceed eight hours work a Q: What does wage include?
day, or a proportion thereof for work of less than A: It includes:
the normal working hours. (1) Sales commissions21;

The adjusted minimum wage rates for workers
paid by results shall be computed in accordance
21
Even if the commissions were in the form of
with the following steps: incentives or encouragement, so that the
1) Amount of increase in AMW - Previous AMW x salesman would be inspired to put a little more
100 = % Increase; industry on the jobs particularly assigned to them,
2) Existing rate/piece x % increase = increase in still these commissions are direct remunerations
rate/piece; for services rendered which contributed to the
3) Existing rate/piece + increase in rate/piece = increase of income of-the employer. Commission
Adjusted rate/piece. is the recompense, compensation or reward of an
agent, salesman, executor, trustee, receiver, factor,
Where AMW is the applicable minimum wage broker or bailee, when the same is calculated as a
rate. percentage on the amount of his transactions or
on the profit to the principal. The nature of the
b) The wage rates of workers who are paid by work of a salesman and the reason for such.type
results shall continue to be established in of remuneration for services rendered
accordance with Article 101 of the Labor Code, demonstrate that commissions are part of wage or
as amended and its implementing regulations. salary (See Songco v. NLRC).

/
(2) Facilities or commodities, which amount thereof, within the limits of reason, to
include articles or services for the the arbitrament of the giver.
benefit of the employee or his family
but shall not include tools of the trade Gratuity pay is not intended to pay a worker
or articles or service primarily for the for actual services rendered. It is a money
benefit of the employer or necessary benefit given to the workers whose purpose is
to the conduct of the employer's "to reward employees or laborers who have
business; rendered satisfactory and efficient service to
the company."

FACILITIES SUPPLEMENTS
Q: What principle governs the relationship
The benefit or The benefit or between labor and capital and is a basic
privilege is part privilege given to factor in determining employees’ wages?
of the laborer's the employee A: Equal work for equal pay.
basic wages. which
constitutes GENERAL RULE: If there was no work
an extra performed by the employee, there can be no
remuneration wage.
above and over EXCEPTIONS: When the laborer was able,
his basic or willing, and ready to work, but:
ordinary earning (1) Was prevented by management;
or wage. (1) Illegally locked out, suspended, or
dismissed.
Wage deductible. Does not form
part of the wage. Note that, [w]here the employee's dismissal
was for a just cause, it would neither be fair
nor just to allow the employee to recover
Note: The criterion is not so much with something he has not earned and could not
the kind of the benefit or item given, have earned. Thus, where the failure of
but its purpose.22 workers to work was not due to the
employer's fault, the burden of economic loss
REQUIREMENTS FOR DEDUCTING suffered by the employees should not be
VALUE OF FACILITIES23: shifted to the employer. Each party must bear
(a) Proof must be shown that such his own loss.
facilities are customarily furnished by
the trade; Q: What is “agricultural work”?
(b) The provision of deductible A: As distinguished from industrial work for
facilities must be voluntarily accepted minimum wage law purposes -
in writing by the employee; and
(c) Facilities must be charged at a fair AGRICULTURAL INDUSTRIAL WORK
and reasonable value. WORK

Work on the soil and When the harvests
Without satisfying these.
its harvest. are processed into
requirements, the employer simply
finished product or
cannot deduct the value from the
transformed to
employee's wages.
another product.

Note: Salary excludes allowances.
The differentiation is important because the
Q: How is salary distinguished from gratuity? agricultural pay rate is generally lower than
A: The very term "gratuity" differs from the the industrial.
word “salary" or "compensation" in leaving the
Q: Does the fact that a worker is paid on a
22
See State Marine Corporation and Royal Line, Inc. fixed piece-work basis mean that there is no
v. Cebu Seamen’s Association, Inc.
23
See Mabeza v. NLRC.
/
employer-employee relationship between the exclude the overriding commissions to be
two? computed from the time of his dismissal up to
A: No. Payment by result is a method of the finality of this decision.
compensation and does not define the
essence of the relation. It is a method of
computing compensation, not a basis for
B. Wage-Fixing
determining the existence or absence of
employer-employee relationship.
Articles 99, 101, and 120-127, Labor Code
One may be paid on the basis of results or ARTICLE 99. REGIONAL MINIMUM WAGES.
time expended on the work, and may or may The minimum wage rates for agricultural and
not acquire an employment status, depending non-agricultural employees and workers in each
on whether the elements of an and every region of the country shall be those
employer-employee relationship are present prescribed by the Regional Tripartite Wagesand
or not (See Tan v. Lagramas). Productivity Boards.

Q: Should an award for commissions and
ARTICLE 101. PAYMENT BY RESULTS.
damages be included as part of backwages?
(a) The Secretary of Labor and Employment
A: It depends on whether the commission is in shall regulate the payment of wages by results,
the nature of override commission or sales including pakyao, piecework, and other non-time
commission. work, in order to ensure the payment of fair and
reasonable wage rates, preferably through time
Backwages are granted on grounds of equity and motion studies or in consultation with
to workers for earnings lost due to their illegal representatives of workers' and employers'
dismissal from work. They represent organizations.
reparation for the illegal dismissal of an
employee based on earnings which the
ARTICLE 120. CREATION OF NATIONAL WAGES
employee would have obtained, either by
AND PRODUCTIVITY COMMISSION.
virtue of a lawful decree or order, as in the There is hereby created a National Wages and
case of a wage increase under a wage order, Productivity Commission, hereinafter referred to
or by rightful expectation, as in the case of as the Commission, which shall be attached to
one's salary or wage. The outstanding feature the Department of Labor and Employment
of backwages is the degree of assuredness to (DOLE) for policy and program coordination.
an employee that he would have had them as
earnings had he not been illegally terminated
from his employment. ARTICLE 121. POWERS AND FUNCTIONS OF
THE COMMISSION.
The Commission shall have the following
It is well-established in jurisprudence that the
powers
determination of whether or not a and functions:
commission forms part of the basic salary (a) To act as the national consultative and
depends upon the circumstances or advisory body to the President of the Philippines
conditions for its payment. and Congress
on matters relating to wages, incomes and
In Philippine Springs Water Resources v. productivity;
Mahilim, it was ruled that not being a (b) To formulate policies and guidelines on
salesman who directly effected any sale of a wages, incomes and productivity improvement
product, the commission embodied in the at the enterprise, industry and national levels;
(c) To prescribe rules and guidelines for the
agreement partook of the nature of an
determination of appropriate minimum wage
overriding commission or a profit-sharing and productivity measures at the regional,
business based on quota. In fine, the alleged provincial, or industry levels;
commissions were profit-sharing payments (d) To review regional wage levels set by the
and had no clear, direct or necessary relation Regional Tripartite Wages and Productivity
to the amount of work he actually performed; Boards to determine if these are in accordance
thus, although the employees’ backwages with prescribed guidelines and national
must be added to his basic salary, it must development plans;
/
(e) To undertake studies, researches and ARTICLE 122. CREATION OF REGIONAL
surveys necessary for the attainment of its TRIPARTITE WAGES AND PRODUCTIVITY
functions and objectives, and to collect and BOARDS.
compile data and periodically disseminate There is hereby created Regional Tripartite
information on wages and productivity and Wages and Productivity Boards, hereinafter
other related information, including, but not referred to as Regional Boards, in all regions,
limited to, employment, cost-of-living, labor including autonomous regions as may be
costs, investments and returns; established by law. The Commission shall
(f) To review plans and programs of the determine the offices/headquarters of the
Regional Tripartite Wages and Productivity respective Regional Boards.
Boards to determine whether these are
consistent with national development plans; The Regional Boards shall have the following
(g) To exercise technical and administrative powers and functions in their respective
supervision over the Regional Tripartite Wages territorial jurisdictions:
and Productivity Boards; (a) To develop plans, programs and projects
(h) To call, from time to time, a national relative to wages, incomes and productivity
tripartite conference of representatives of improvement for
government, workers and employers for the their respective regions;
consideration of measures to promote wage (b) To determine and x minimum wage rates
rationalization and productivity; and applicable in their regions, provinces or
(i) To exercise such powers and functions as industries therein
may be necessary to implement this Act. and to issue the corresponding wage orders,
subject to guidelines issued by the Commission;
The Commission shall be composed of the (c) To undertake studies, researches, and
Secretary of Labor and Employment as surveys necessary for the attainment of their
ex-officio chairman, the Director-General of the functions, objectives and programs, and to
National Economic and Development Authority collect and compile data on wages, incomes,
(NEDA) as ex-officio vice-chairman, and two (2) productivity and other related information and
members each from workers and employers periodically disseminate the same;
sectors who shall be appointed by the President (d) To coordinate with the other Regional
of the Philippines upon recommendation of the Boards as may be necessary to attain the policy
Secretary of Labor and Employment to be made and intention of this Code;
on the basis of the list of nominees submitted (e) To receive, process and act on applications
by the workers and employers sectors, for exemption from prescribed wage rates as
respectively, and who shall serve for a term of may be provided by law or any Wage Order; and
five (5) years. The Executive Director of the (f) To exercise such other powers and functions
Commission shall also be a member of the as may be necessary to carry out their mandate
Commission. under this Code.

The Commission shall be assisted by a Implementation of the plans, programs, and
Secretariat to be headed by an Executive projects of the Regional Boards referred to in
Director and two (2) Deputy Directors, who shall the second paragraph, letter (a) of this Article,
be appointed by the President of the Philippines, shall be through the respective regional offices
upon the recommendation of the Secretary of of the Department of Labor and Employment
Labor and Employment. within their territorial jurisdiction; Provided,
however, That the Regional Boards shall have
The Executive Director shall have the same rank, technical supervision over the regional office of
salary, benefits and other emoluments as that the Department of Labor and Employment with
of a Department Assistant Secretary, while the respect to the implementation of said plans,
Deputy Directors shall have the same rank, programs and projects.
salary, benefits and other emoluments as that
of a Bureau Director. The members of the Each Regional Board shall be composed of the
Commission representing labor and Regional Director of the Department of Labor
management shall have the same rank, and Employment as chairman, the Regional
emoluments, allowances and other benefits as Directors of the National Economic and
those prescribed by law for labor and Development Authority and the Department of
management representatives in the Employees' Trade and Industry as vice-chairmen and two (2)
Compensation Commission. members each from workers' and employers'
sectors who shall be appointed by the President
of the Philippines, upon the recommendation of

/
the Secretary of Labor and Employment, to be (b) Wage adjustment vis-à-vis the consumer
made on the basis of the list of nominees price index;
submitted by the workers' and employers' (c) The cost of living and changes or increases
sectors, respectively, and who shall serve for a therein;
term of five (5) years. (d) The needs of workers and their families;
(e) The need to induce industries to invest in the
Each Regional Board to be headed by its countryside;
chairman shall be assisted by a Secretariat. (f) Improvements in standards of living;
(g) The prevailing wage levels;

(h) Fair return of the capital invested and
ARTICLE 123. WAGE ORDER. capacity to pay of employers;
Whenever conditions in the region so warrant, (i) Effects on employment generation and family
the Regional Board shall investigate and study income; and
all pertinent facts; and based on the standards (j) The equitable distribution of income and
and criteria herein prescribed, shall proceed to wealth along the imperatives of economic and
determine whether a Wage Order should be social development.
issued. Any such Wage Order shall take effect
after fifteen (15) days from its complete The wages prescribed in accordance with the
publication in at least one (1) newspaper of provisions of this Title shall be the standard
general circulation in the region. prevailing minimum wages in every region.
These wages shall include wages varying with
In the performance of its wage-determining industries, provinces or localities if in the
functions, the Regional Board shall conduct judgment of the Regional Board, conditions
public hearings/consultations, giving notices to make such local differentiation proper and
employees' and employers' groups, provincial, necessary to effectuate the purpose of this
city and municipal officials and other interested Title.
parties.
Any person, company, corporation, partnership
Any party aggrieved by the Wage Order issued or any other entity engaged in business shall file
by the Regional Board may appeal such order to and register annually with the appropriate
the Commission within ten (10) calendar days Regional Board, Commission and the National
from the publication of such order. It shall be Statistics Office, an itemized listing of their
mandatory for the Commission to decide such labor component, specifying the names of their
appeal within sixty (60) calendar days from the workers and employees below the managerial
filing thereof. level, including learners, apprentices and
disabled/handicapped workers who were hired
The filing of the appeal does not stay the order under the terms prescribed in the employment
unless the person appealing such order shall file contracts, and their corresponding salaries and
with the Commission, an undertaking with a wages.
surety or sureties satisfactory to the
Commission for the payment to the employees Where the application of any prescribed wage
affected by the order of the corresponding increase by virtue of a law or wage order issued
increase, in the event such order is affirmed. by any Regional Board results in distortions of
the wage structure within an establishment, the

employer and the union shall negotiate to
ARTICLE 124. STANDARDS/CRITERIA FOR correct the distortions. Any dispute arising from
MINIMUM WAGE FIXING. wage distortions shall be resolved through the
The regional minimum wages to be established grievance procedure under their collective
by the Regional Board shall be as nearly bargaining agreement and, if it remains
adequate as is economically feasible to unresolved, through voluntary arbitration.
maintain the minimum standards of living Unless otherwise agreed by the parties in
necessary for the health, efficiency and general writing, such dispute shall be decided by the
well-being of the employees within the voluntary arbitrators within ten (10) calendar
framework of the national economic and social days from the time said dispute was referred to
development program. In the determination of voluntary arbitration.
such regional minimum wages, the Regional
Board shall, among other relevant factors, In cases where there are no collective
consider the following: agreements or recognized labor unions, the
employers and workers shall endeavor to
(a) The demand for living wages; correct such distortions. Any dispute arising
/
therefrom shall be settled through the National Wage Rationalization Act (RA 6727), amended
Conciliation and Mediation Board and, if it by RA 8188
remains unresolved after ten (10) calendar days
of conciliation, shall be referred to the X X X
appropriate branch of the National Labor
Relations Commission (NLRC). It shall be SECTION 2. It is hereby declared the policy of
mandatory for the NLRC to conduct continuous the State to rationalize the fixing of minimum
hearings and decide the dispute within twenty wages and to promote
(20) calendar days from the time said dispute is productivity-improvement and gain-sharing
submitted for compulsory arbitration. measures to ensure a decent standard of living
for the workers and their families; to guarantee
The pendency of a dispute arising from a wage the rights of labor to its just share in the fruits of
distortion shall not in any way delay the production; to enhance employment generation
applicability of any increase in prescribed wage in the countryside through industry dispersal;
rates pursuant to the provisions of law or wage and to allow business and industry reasonable
order. returns on investment, expansion and growth.

As used herein, a wage distortion shall mean a The State shall promote collective bargaining as
situation where an increase in prescribed wage the primary mode of settling wages and other
rates results in the elimination or severe terms and conditions of employment; and
contraction of intentional quantitative whenever necessary, the minimum wage rates
differences in wage or salary rates between and shall be adjusted in a fair and equitable manner,
among employee groups in an establishment as considering existing regional disparities in the
to effectively obliterate the distinctions cost of living and other socio-economic factors
embodied in such wage structure based on and the national economic and social
skills, length of service, or other logical bases of development plans.
differentiation.

All workers paid by result, including those who X X X
are paid on piecework, takay, pakyaw or task
basis, shall receive not less than the prescribed
SECTION 6. In the case of contracts for
wage rates per eight (8) hours of work a day, or
construction projects and for security, janitorial
a proportion thereof for working less than eight
and similar services, the prescribed increases in
(8) hours.
the wage rates of the workers shall be borne by
the principals or clients of the
construction/service contractors and the
ARTICLE 125. FREEDOM TO BARGAIN.
contract shall be deemed amended accordingly.
No wage order shall be construed to prevent
In the event, however, that the principal or client
workers in particular firms or enterprises or
fails to pay the prescribed wage rates, the
industries from bargaining for higher wages
construction/service contractor shall be jointly
with their respective employers.
and severally liable with his principal or client.

ARTICLE 126. PROHIBITION AGAINST
SECTION 7. Upon written permission of the
INJUNCTION.
majority of the employees or workers
No preliminary or permanent injunction or
concerned, all private establishments,
temporary restraining order may be issued by
companies, businesses, and other entities with
any court, tribunal or other entity against any
twenty five (25) or more employees and located
proceedings before the Commission or the
within one (1) kilometer radius to a commercial,
Regional Boards.
savings or rural bank shall pay the wages and
other benefits of their employees through any of
said banks and within the period of payment of
ARTICLE 127. NON-DIMINUTION OF BENEFITS.
wages fixed by Presidential Decree No. 442, as
No wage order issued by any regional board
amended, otherwise known as the Labor Code
shall provide for wage rates lower than the
of the Philippines.
statutory minimum wage rates prescribed by
Congress..
SECTION 8. Whenever applicable and upon
request of a concerned worker or union, the
/
bank shall issue a certification of the record of appropriate separation pay and retirement and
payment of wages of a particular worker or other benefits accruing to them under existing
workers for a particular payroll period. laws. In lieu, thereof, at the option of the
employee, he shall be preferentially considered

for employment in the government or in any of
SECTION 9. The Department of Labor and its subdivisions, instrumentalities, or agencies,
Employment shall conduct inspections as often including government-owned or controlled
as possible within its manpower constraint of corporations and their subsidiaries.
the payroll and other financial records kept by

the company or business to determine whether
the workers are paid the prescribed minimum SECTION 12. Any person, corporation, trust,
wage rates and other benefits granted by law or firm, partnership, association or entity which
any Wage Order. In unionized companies, the refuses or fails to pay any of the prescribed
Department of Labor and Employment increases or adjustments in the wage rates
inspectors shall always be accompanied by the made in accordance with this Act shall be
president or any responsible officer of the punished by a fine not less than Twenty Five
recognized bargaining unit or of any interested thousand pesos (P25,000) nor more than One
union in the conduct of the inspection. In hundred thousand pesos (P100,000) or
non-unionized companies, establishments or imprisonment of not less than two (2) years nor
businesses, the inspection should be carried out more than four (4) years, or both such fine and
in the presence of a worker representing the imprisonment at the discretion of the court:
workers in the said company. The workers' Provided, That any person convicted under this
representative shall have the right to submit his Act shall not be entitled to the benefits provided
own findings to the Department of Labor and for under the Probation Law.
Employment and to testify on the same if he
cannot concur with the findings of the labor The employer concerned shall be ordered to pay
inspector. an amount equivalent to double the unpaid
benefits owing to the employees: Provided, That

payment of indemnity shall not absolve the
SECTION 10. The funds necessary to carry out employer from the criminal liability imposable
the provisions of this Act shall be taken from under this Act.
the Compensation and Organizational
Adjustment Fund, the Contingent Fund, and If the violation is committed by a corporation,
other savings under the Republic Act No. 6688, trust or firm, partnership, association or any
otherwise known as the General Appropriations other entity the penalty of imprisonment shall
Act of 1989, or from any unappropriated funds be imposed upon the entity's responsible
of the National Treasury: Provided, That the officers, including, but not limited to, the
funding requirements necessary to implement president, vice-president, chief executive officer,
this Act shall be included in the annual General general manager, managing director or partner.
Appropriations Act for the succeeding years.

SECTION 13. The Secretary of Labor and
SECTION 11. The National Wages Council Employment shall promulgate the necessary
created under Executive Order No. 614 and the rules and regulations to implement the
National Productivity Commission created provisions of this Act.
under Executive Order No. 615 are hereby
abolished. All properties, records, equipment,

buildings, facilities, and other assets, liabilities
and appropriations of and belonging to the Barangay Micro Business Enterprises
abovementioned offices, as well as other (BMBE's) Act of 2002 (RA 9178)
matters pending therein, shall be transferred to
the Commission. All personnel of the above X X X
abolished offices shall continue to function in a
holdover capacity and shall be preferentially
SECTION 3. DEFINITION OF TERMS.
considered for appointments to or placement in
(a) "Barangay Micro Business Enterprise,"
the Commission.
hereinafter referred to as BMBE, refers to any
Any official or employee separated from the business entity or enterprise engaged in the
service as a result of the abolition of office production, processing or manufacturing of
pursuant to this Act shall be entitled to products or commodities, including
/
agro-processing, trading and services, whose A: The first tier shall be the regional minimum
total assets including those arising from loans wage rates provided in a Wage Order issued
but exclusive of the land on which the particular by the Boards (Section 3, NWPC Guidelines
business entity's office, plant and equipment are No. 2).
situated, shall not be more than Three Million ● The setting of a minimum wage aims
Pesos (P3,000,000.00) The Above definition to protect vulnerable workers. It shall
shall be subjected to review and upward be set higher than the poverty
adjustment by the SMED Council, as mandated threshold without creating negative
under Republic Act No. 6977, as amended by effects of minimum wage policies.
Republic Act No. 8289.
● Reference shall be made to the poverty
For the purpose of this Act, "service" shall
exclude those rendered by any one, who is duly threshold, average wage and
licensed government after having passed a socioeconomic indicators, considering
government licensure examination, in the criteria prescribed in RA 6727.
connection with the exercise of one's (1) Poverty threshold: It reflects
profession. demand for living wages, wage
adjustments vis-a-vis the consumer
prices, cost of living and changes or
SECTION 8. EXEMPTION FROM THE COVERAGE increases therein, needs of workers
OF THE MINIMUM WAGE LAW. and their families and improvements
The BMBEs shall be exempt from the coverage
in standards of living.
of the Minimum Wage Law: Provided, That all
employees covered under this Act shall be (2) Average wage: It reflects prevailing
entitled to the same benefits given to any wage levels, equitable distribution of
regular employee such as social security and income and wealth along the
healthcare benefits. imperatives of economic and social
developments.

(3) Other socioeconomic indicators: It

includes the need to induce industries
Guidelines on the Implementation of the
to invest in the countryside, fair return
Two-Tiered Wage System (NWPC Guidelines
of the capital invested and capacity to
No. 2, Series of 2012)
pay of employers and effects on

employment generation and family
Q: What is the Two-Tiered Wage System?
income.
A: It is a reform within the current minimum
● Formula:
wage system.

It is an approach to minimum wage setting
which aims to improve the coverage of
minimum wages; promote worker and
enterprise productivity and; address the
negative effects of minimum wage policies. The second tier shall consist of productivity
bonuses and incentives based on agreement
Since it is a reform under the current system, between workers and management (Section
it maintains regional minimum wage setting 4, NWPC Guidelines No. 2).
by the RTWPBs. It upholds the policy of
setting minimum wage to protect vulnerable The voluntary productivity-based pay shall be
workers and recognizing collective bargaining implemented through a labor-management
as the primary mode for setting wages and mechanism such as the productivity
other terms and conditions of employment. committee or any similar body. Workers’
(Sec. 1, NWPC Guidelines No. 2). representation in the Productivity committees
ensures fair and reasonable setting of
It refers to a pay system consisting of: (1) performance criteria, standards, targets and
minimum wage; and (2) incentive pay based profit sharing scheme among others.
on productivity improvement and gainsharing
● The Boards shall issue an Advisory to
(Sec. 2[e], NWPC Guidelines No. 2).
guide enterprises or industries on a

range of productivity incentives. The
Q: How does the Two-Tiered Wage System?
/
Advisory may be used as basis for Wage Order No. NCR-22
employer initiatives or enterprise-level
negotiations. Q: What are the new minimum wage rates?
● Identification of Priority Industry. - The A: The new daily minimum wage rates of
Board may identify a priority industry covered workers in the private sector in the
or subindustry or sector (based on the NCR shall be as follows:
2009 Philippine Standard Industrial
Classification) as the subject of an
Advisory. As criteria for selecting a
priority industry, the Board may
consider the industry's share to
employment; contribution to economic (Section 1, Wage Order No. NCR-22).
output; growth in labor productivity;
wages and other relevant factors. Q: What is minimum wage?
● Conduct of Industry Study A: Statutory minimum wage is the lowest
Consultation. - The Board shall wage rate fixed by law that an employer can
undertake studies on the performance pay his workers.
and outlook of the industry. The Board
may undertake these studies on its Compensation which is less.than such
own or commission the academe or a minimum rate is considered an underpayment
research institution to conduct these that violates the law.
studies for them. The Board shall
involve industry stakeholders in these Article 99 recognizes that there are minimum
studies. wage rates for agricultural and for
● Issuance of an Advisory. - The Board non-agricultural employees, and these are
shall issue an Advisory based on the determined for each region by the regional
results of the studies and wage boards.
consultations with industry
stakeholders. It shall contain an Q: What are the methods of determining
assessment of the region's overall wages?
economic performance; A: (1) Floor-wage method, which involves the
industry/subindustry/sector-specific fixing of determinate amount that would be
data on labor productivity, wages, added to the prevailing statutory minimum
profitability, outlook and other relevant wage; or
information; and a recommendation (2) Salary ceiling method, where the wage
on a range of productivity incentives. adjustment is applied to employees receiving
● Monitoring and Assessment a certain denominated salary ceiling.
● Advocacy
● Applicability of RA 6971. - Enterprises The first method was adopted in the earlier
with existing productivity committees wage orders, while the latter method was
may avail of the tax incentives under used in R.A. Nos. 6640 and 6727. The shift
RA 6971 provided they comply with the from the first method to the second method
provisions therein. was brought about by labor disputes arising
● Assistance to enterprises from wage distortions, a consequence of the
implementation of the said wage orders. Of
course, disputes are appropriate subjects of
collective bargaining and grievance
procedures, but bargaining has helped very
little in correcting wage distortions.24

Q: Is the employers’ ability to pay material?
A: No. The employer cannot exempt himself
from liability to pay minimum wages because

24
See ECOP v. NWPC, RTWPB-NCR, and TUCP.
/
of poor financial condition of the company, (6) Retail and service establishments26,
the payment of minimum wages not being employing not more than 10 workers27;
dependent on the employer's ability to pay.

EXEMPTION EXEMPTION
If, in fact, the employer cannot pay a
FROM MINIMUM FROM HOLIDAY
subsistence wage, then be should not
WAGE LAW PAY AND SIL
continue his operation unless he improves his
methods and equipment so as to make the The exemption Apply to
payment of the minimum wage feasible for specifies "not establishments
him; otherwise, the employer is Wasting the more than employing "less
toil of the workers and the material resources ten" employees, than ten"
used in the employment. meaning one to employees,
ten. meaning one to
Q: Are employees estopped to sue for nine.
difference in the amount of wages?
A: No. The acceptance by an employee of the
wages paid him without objection does not (7) Distressed establishments;
give rise to estoppel precluding him from (8) New business enterprises; and
suing for the difference between the amount (9) Establishments adversely affected by
received and the amount he should have natural calamities.
received pursuant to a valid minimum wage
law where it does not appear that the Q: Is the list of exemptions exclusive?
employer changed his position to his own A: No. The NWPC Guidelines allows the
prejudice. regional wage boards to add exemptible
categories of employers, but the addition
A laborer who accepts a lower wage than needs strong justification and is subject to
what the law sets a minimum wage for review approval by the NWPC.
28
laborers shall be entitled to receive the
deficiency. THREE REASONS JUSTIFYING EXEMPTIONS:
(1) to assist establishments experiencing
Q: Who are exempted from the Minimum temporary difficulties due to losses to
Wage Law? maintain the financial viability of their
A: The following are exempted:
(1) household or domestic helpers,
including family drivers and persons in themselves of the benefits provided by R.A. No.
9178.
the personal service of another;' 26
To qualify for exemption, the retail or service
(2) homeworkers engaged in needle-work;
enterprise must prove that it is engaged in selling
(3) workers employed in any goods and services or both.
establishment duly registered with the
National Cottage Industries and A "retail enterprise" is one engaged in the sale of
Development Authority in accordance goods that are commonly bought by private
with .R.A. No. 3470 provided that such individuals for personal or household use and is
workers perform the work in their characterized by small sales. A "service enterprise,"
respective homes; on the other hand, is engaged predominantly in
(4) workers in any duly registered providing personal service to individuals for their
own or household use.
cooperative when so recommended by

the Bureau of Cooperative
The exemption has reference only to sale of
Development and upon approval of the services of the type performed by establishments
Secretary of Labor and Employment; that are traditionally recognized as retail service
(5) BMBEs25; establishments such as restaurants, sari-sari
stores, repair shops, etc.
25
Under Section 5(b) of R.A. No. 10644 (2014), the 27
They may be exempted upon application with
Co Negosyo Act, the Department of Trade and and as determined by tlre appropriate Regional
Industry, through the Negosyo Center in the city or Board in accordance with the applicable rules and
municipal level, shall have the sole power to issue regulations issued by the Commission.
the Certificate of Authority for BMBEs to avail 28
See NWPC and RTWP v. APL.
/
businesses and continued employment of The RTWPB is not authorized to grant a
their workers; general across-the-board wage increase for
(2) to encourage the establishment of new non-minimum wage earners.30
business and their creation of jobs particularly
in areas outside the National Capital Region Q: Who are workers paid by results?
and Export Processing Zones, in line with the A: They are workers whose pay is calculated
policy on industry dispersal; and not on the basis of time spent on the job but
(3) to ease the burden of micro of the quantity and quality or the kind of work
establishments, particularly in the retail and they turn out. In other words, they are paid by
service sector, that have a limited capacity to results; they do nontime work.
pay.
Workers paid by results may be grouped into
Q: Who has the power to prescribe guidelines two
- the NWPC or RTWPB? (1) those whose time and performance is
A: The NWPC. The clearly grants the NWPC, supervised by the employer; and
not the RTWPB, the power to "prescribe the (2) those whose time and performance is
rules and guidelines" for the determination of unsupervised by the employer.
minimum wage and productivity measures.
While the RTWPB has the power to issue Q: How are workers paid by results paid?
wage orders under Article 122 (b) of the Labor A: The basis for the establishment of rates for
Code, such orders are subject to the piece, output or contract work shall be the
guidelines prescribed by the NWPC. performance of an ordinary worker of
minimum skill. or ability.
The NWPC has the power not only to ● An ordinary worker of minimum skill or
prescribe guidelines to govern wage orders, ability is the average worker of the
but also to issue exemptions therefrom, as lowest producing-group presenting
the said rule provides that "[w]henever a wage 50% of the total number of employees
order provides for exemption, applications engaged in similar employment in a
thereto shall be filed with the appropriate particular establishment, excluding
Board which shall process the same, subject learners, apprentices and handicapped
to guidelines issued by the Commission." In workers employed therein.
short, the NWPC lays down the guidelines
which the RTWPB implements.29 In determining the legal sufficiency of a piece
rate compensation, piece-rate workers may be
Article 122 (e) of the Labor Code cannot be categorized into two:
construed to enable the RTWPB to decide
Those who are paid Those who are paid
applications for exemption on the basis of its
piece rates which output rates which
own guidelines which were not reviewed an
are prescribed in are prescribed by
approved by the NWPC, for the simple reason
Wage Rate Orders the employer and
that a statutory grant of "powers should not
issued by DOLE are not yet
be extended by implication beyond what may
approved by DOLE
be necessary for their just and reasonable
execution. Wages or earnings in The number of
this category are pieces produced is
Q: What are the limits of the RTWPB’s determined by multiplied by the
powers? simply rate per piece
A: The RTWPB’s powers are limited to multiplying the determined by the
determining and fixing the minimum wage number of pieces employer.
rate within their respective territorial produced by the rate
jurisdiction and with respect only to per piece. If the resulting
employees who earn the prescribed minimum amount is
wage. These workers are equivalent to or

See Metropolitan Bank and Trust Company v.

30
See Nasipit Lumber Co. v. NWPC.

29
NWPC.
/
Q: What benefits are piece-rate workers
not covered by the more than the
entitled to?
Rule on Hours of applicable statutory
A: There are entitled to:
Work which provides minimum daily rate
(1) the applicable statutory minimum daily
for premium and in relation to the
rate;
overtime payments. number of hours
(2) yearly service incentive leave of five
Whatever they worked, the worker
days with pay;
produce by the end will receive such
(3) night shift differential pay;
of the day shall amount.
(4) holiday pay;
determine their
(5) meal and rest periods;
actual earnings even But if the amount is
(6) overtime pay (conditional);
if the work day less than the
(7) premium pay (conditional);
exceeds eight hours. applicable legal
(8) 13th-month pay;
rate, it is possible
(9) other benefits granted by law, by
that the rates per
individual or collective agreement or
piece are not in
company policy or practice.
accordance with the

standards
If, however, an appropriate Order prescribing
prescribed
their output rates has been issued by the
by the rules
DOLE or their output rates conform with the
implementing the
standards prescribed by the Labor Code, the
Labor Code; in that
employer is not, by law, required to grant the
case, the employer
piece-rate workers the benefits under the Rule
is required by law to
on Hours of Work (i.e., overtime and premium
pay the difference
payments) nor to pay the wage differentials if
between the
their daily earnings do not amount to the
resulting amount
applicable statutory minimum daily wage.
and the applicable

legal minimum rate.
Q: Is a worker paid on pakyaw basis entitled
to holiday pay, SIL pay, and 13th month pay?
Q: Are piece-rate workers entitled to night A: In David v. Macasio, it was held that a
differential and service incentive leave? worker paid on pakyaw basis is entitled to
A: It depends. The Rules implementing the holiday pay and SIL pay. Payment of an
Labor Code on night differential and service employee on pakyaw basis ALONE is
incentive leave do not apply to employees insufficient to exclude one from the coverage
whose time and performance is unsupervised of SIL and holiday pay. They are exempted
by the employers, including those who are only if they qualify as “field personnel.”
engaged on task or contract basis, purely
commission basis, or those who are paid a In determining whether workers engaged on
fixed amount for perfortiling work irrespective pakyaw basis are entitled to holiday or SIL
of the time consumed in the performance pay, the presence/absence of employer
thereof. supervision is the key.

As regards the yearly commutation or cash On the other hand, 13th month pay cannot be
conversion of the service incentive leave of given. PD 851 governs 13th month pay, which
piece-rate workers, the Bureau of Working provides that those who are paid on task
Conditions is of the view that the conversion (pakyaw) basis, and those who are paid in a
should be based on their average daily fixed amount for performing a specific work
earnings during the particular year of service are exempted from the coverage. The PD did
which can be derived by dividing the amount not qualify the exemption from its coverage of
earned during the year by the actual number the requirement that the task worker be a field
of working days or the statutory minimum personnel at the same time; hence, a worker
rate, whichever is higher. paid on pakyaw basis is not entitled to 13th
month pay.
/
judgment and discretion, and
Wage Distortion
ultimately, perhaps, a subject matter
for bargaining negotiations between
Q: What is wage distortion? employer and employees.
A: It is a situation where an increase in (2) Neither is there "salary distortion" under
prescribed wage rates results in the Article 124 if the affected employees are
elimination or severe contraction of employed in the same company but different
intentional quantitative differences in wage or regions.32
salary rate between and among employee ● This is because wage-fixing has been
groups an establishment as to effectively regibhalized by R.A. No. 6727, the
obliterate the distinctions embodied in such Wage Rationalization Act.
wage structure based on skills, length of ● Each region has a regional wage board
service or other logical bases of which, in fixing the wage level,
differentiation. considers criteria or standards
existing in the region. Since those
For a distortion to exist, the law does not criteria vary from one region to
require an elimination or total abrogation of another, the pay levels of comparable
quantitative wage or salary differences; a jobs also tend to vary among regions.
severe contraction thereof is enough. But pay disputes of same or
comparable jobs in different regions
ELEMENTS OF WAGE DISTORTION31 cannot be considered wage distortion.
(1) An existing hierarchy of positions with Wage distortion, in other words,
corresponding salary rates; involves comparison of jobs located in
(2) A significant change in the salary rate of a the same region. Examination of
lower pay class without a concomitant alleged salary distortion is limited to
increase in the salary rate of a higher one; jobs or positions in the same employer
(3) The elimination of the distinction between in the same region; that is, the
the two levels; and comparison of salaries has to be
(4) The existence of the distortion in the same intra-region, not inter-region.
region of the country.
But, the mere factual existence of wage
Note that, the distortion mentioned in Article distortion does not, however, ipso facto result
124 refers to one arising from compliance to an obligation to rectify it, absent a law or
with a wage order. other source of obligation which requires its
rectification.
Q: When is there no wage distortion?
A: Q: What are the ways to correct distortion?
(1) It does not refer, and the Article does not A: The Court has pointed out that through
apply, to a distortion arising from a revision of Article 124 the law recognizes the validity of
salary scale initiated by the employer. negotiated wage increases to correct wage.
● The formulation or revision of a wage
structure through the classification of Note that, the distortion adjustment formula is
employees is a matter of management as follows33:
judgement and discretion. ·
● [W]hether or not a new additional
scheme of classification of
employees for compensation purpose
should be established by the Company
(and the legitimacy or viability of the Any issue involving wage distortion shall not
be a ground for a strike/lockout.
bases of distinction there embodied}
is properly a matter of management Q: What is the liability of the contractor’s
principal in certain industries?
31
See Philippine Geothermal, Inc. Employees Union
v. Chevron Geothermal Phils. Holdings, Inc.; See Prubankers Association v. Prudential Bank.
32
Prubankers Association v. Prudential Bank; Bankard See Metropolitan Bank & Trust Company

33
Employees Union v. NLRC. Employees Union-ALU TUCP v. NLRC.

/
A: RA 6727 also has specific provision on the 1. That payments are made at intervals not
liability of the principal for wage rate exceeding sixteen (16) days, in proportion to the
increases for construction and similar amount of work completed;
workers. 2. That final settlement is made upon
completion of the work.
It states in Section 6:
In the case ·of contracts for construction
projects and for security, janitorial and similar ARTICLE 104. PLACE OF PAYMENT.
services, the prescribed increases in the wage Payment of wages shall be made at or near the
place of undertaking, except as otherwise
rates of the workers shall be borne by the
provided by such regulations as the Secretary of
principal or clients of the construction/service Labor and Employment may prescribe under
contractors and the contract shall be deemed conditions to ensure greater protection of
amended accordingly. In the event, however, wages.
that the principal or client fails to pay the

prescribed wage rates, the construction/
service contractor shall be jointly and ARTICLE 105. DIRECT PAYMENT OF WAGES.
severally liable with his principal or client. Wages shall be paid directly to the workers to
whom they are due, except:

(a) In cases of force majeure rendering such
C. Payment of Wages payment impossible or under other special
circumstances to be determined by the
Secretary of Labor and Employment in
Articles 102-105 and 112-119, Labor Code appropriate regulations, in which case, the
ARTICLE 102. FORMS OF PAYMENT. worker may be paid through another person
No employer shall pay the wages of an under written authority given by the worker for
employee by means of promissory notes, the purpose; or
vouchers, coupons, tokens, tickets, chits, or any (b) Where the worker has died, in which case,
object other than legal tender, even when the employer may pay the wages of the
expressly requested by the employee. deceased worker to the heirs of the latter
without the necessity of intestate proceedings.
Payment of wages by check or money order The claimants, if they are all of age, shall
shall be allowed when such manner of payment execute an affidavit attesting to their
is customary on the date of effectivity of this relationship to the deceased and the fact that
Code, or is necessary because of special they are his heirs, to the exclusion of all other
circumstances as specified in appropriate persons. If any of the heirs is a minor, the
regulations to be issued by the Secretary of affidavit shall be executed on his behalf by his
Labor and Employment or as stipulated in a natural guardian or next-of-kin. The affidavit
collective bargaining agreement. shall be presented to the employer who shall
make payment through the Secretary of Labor
and Employment or his representative. The
ARTICLE 103. TIME OF PAYMENT. representative of the Secretary of Labor and
Wages shall be paid at least once every two (2) Employment shall act as referee in dividing the
weeks or twice a month at intervals not amount paid among the heirs.
exceeding sixteen (16) days. If on account of
force majeure or circumstances beyond the The payment of wages under this Article shall
employer's control, payment of wages on or absolve the employer of any further liability with
within the time herein provided cannot be made, respect to the amount paid.
the employer shall pay the wages immediately
after such force majeure or circumstances have
ceased. No employer shall make payment with ARTICLE 112. NON-INTERFERENCE IN
less frequency than once a month. DISPOSAL OF WAGES.
No employer shall limit or otherwise interfere
The payment of wages of employees engaged with the freedom of any employee to dispose of
to perform a task which cannot be completed in his wages. He shall not in any manner force,
two (2) weeks shall be subject to the following compel, or oblige his employees to purchase
conditions, in the absence of a collective merchandise, commodities or other property
bargaining agreement or arbitration award: from any other person, or otherwise make use
/
of any store or services of such employer or any as consideration of a promise of employment or
other person. retention in employment.

ARTICLE 113. WAGE DEDUCTION. ARTICLE 118. RETALIATORY MEASURES.
No employer, in his own behalf or in behalf of It shall be unlawful for an employer to refuse to
any person, shall make any deduction from the pay or reduce the wages and benefits, discharge
wages of his employees, except: or in any manner discriminate against any
employee who has filed any complaint or
(a) In cases where the worker is insured with his instituted any proceeding under this Title or has
consent by the employer, and the deduction is to testified or is about to testify in such
recompense the employer for the amount paid proceedings.
by him as premium on the insurance;

(b) For union dues, in cases where the right of
the worker or his union to check-off has been ARTICLE 119. FALSE REPORTING.
recognized by the employer or authorized in It shall be unlawful for any person to make any
writing by the individual worker concerned; and statement, report, or record filed or kept
(c) In cases where the employer is authorized by pursuant to the provisions of this Code knowing
law or regulations issued by the Secretary of such statement, report or record to be false in
Labor and Employment. any material respect.

ARTICLE 114. DEPOSITS FOR LOSS OR
DAMAGE. Omnibus Rules: Book III, Rule VIII
No employer shall require his worker to make
deposits from which deductions shall be made X X X
for the reimbursement of loss of or damage to
tools, materials, or equipment supplied by the
employer, except when the employer is engaged SECTION 2. PAYMENT BY CHECK.
in such trades, occupations or business where Payment of wages by bank checks, postal
the practice of making deductions or requiring checks or money orders is allowed where such
deposits is a recognized one, or is necessary or manner of wage payment is customary on the
desirable as determined by the Secretary of date of the effectivity of the Code, where it is so
Labor and Employment in appropriate rules and stipulated in a collective agreement, or where all
regulations. of the following conditions are met:

(a) There is a bank or other facility for
ARTICLE 115. LIMITATIONS. encashment within a radius of one (1) kilometer
No deduction from the deposits of an employee from the workplace;
for the actual amount of the loss or damage (b) The employer or any of his agents or
shall be made unless the employee has been representatives does not receive any pecuniary
heard thereon, and his responsibility has been benefit directly or indirectly from the
clearly shown. arrangement;
(c) The employees are given reasonable time
during banking hours to withdraw their wages
ARTICLE 116. WITHHOLDING OF WAGES AND from the bank which time shall be considered
KICKBACKS PROHIBITED. as compensable hours worked if done during
It shall be unlawful for any person, directly or working hours; and
indirectly, to withhold any amount from the (d) The payment by check is with the written
wages of a worker or induce him to give up any consent of the employees concerned if there is
part of his wages by force, stealth, intimidation, no collective agreement authorizing the
threat or by any other means whatsoever payment of wages by bank checks.
without the worker's consent.
SECTION 4. PLACE OF PAYMENT.
ARTICLE 117. DEDUCTION TO ENSURE As a general rule, the place of payment shall be
EMPLOYMENT. at or near the place of undertaking. Payment in
It shall be unlawful to make any deduction from a place other than the work place shall be
the wages of any employee for the benefit of the permissible only under the following
employer or his representative or intermediary circumstances:
/
(a) When payment cannot be effected at or near Every employer or indirect employer shall be
the place of work by reason of the deterioration jointly and severally liable with his contractor or
of peace and order conditions, or by reason of sub-contractor for the unpaid wages of the
actual or impending emergencies caused by employees of the latter. Such employer or
fire, flood, epidemic or other calamity rendering indirect employer may require the contractor or
payment thereat impossible; sub-contractor to furnish a bond equal to the
(b) When the employer provides free cost of labor under contract on condition that
transportation to the employees back and forth; the bond will answer for the wages due the
and employees should the contractor or
(c) Under any other analogous circumstances; subcontractor, as the case may be, fail to pay
Provided, That the time spent by the employees the same.
in collecting their wages shall be considered as
compensable hours worked;
(d) No employer shall pay his employees in any X X X
bar, night or day club, drinking establishment,
massage clinic, dance hall, or other similar SECTION 10. PAYMENT OF WAGES IN CASE OF
places or in places where games are played BANKRUPTCY.
with stakes of money or things representing Unpaid wages earned by the employees before
money except in the case of persons employed the declaration of bankruptcy or judicial
in said places. liquidation of the employer's business shall be
given first preference and shall be paid in full
before other creditors may establish any claim
SECTION 5. DIRECT PAYMENT OF WAGES. to a share in the assets of the employer.
Payment of wages shall be made direct to the
employee entitled thereto except in the
following cases: SECTION 11. ATTORNEY’S FEES.
(a) Where the employer is authorized in writing Attorney's fees in any judicial or administrative
by the employee to pay his wages to a member proceedings for the recovery of wages shall not
of his family; exceed 10 percent of the amount awarded. The
(b) Where payment to another person of any fees may be deducted from the total amount
part of the employee's wages is authorized by due the winning party.
existing law, including payments for the
insurance premiums of the employee and union
dues where the right to check-off has been
SECTION 12. NON-INTERFERENCE IN
recognized by the employer in accordance with
DISPOSAL OF WAGES.
a collective agreement or authorized in writing
No employer shall limit or otherwise interfere
by the individual employees concerned; or
with the freedom of any employee to dispose of
(c) In case of death of the employee as provided
his wages and no employer shall in any manner
in the succeeding Section.
oblige any of his employees to patronize any
store or avail of the services offered by any
person.
SECTION 6. WAGES OF DECEASED EMPLOYEE.
The payment of the wages of a deceased
employee shall be made to his heirs without the
SECTION 13. WAGES DEDUCTION.
necessity of intestate proceedings. When the
Deductions from the wages of the employees
heirs are of age, they shall execute an affidavit
may be made by the employer in any of the
attesting to their relationship to the deceased
following cases:
and the fact that they are his heirs to the

exclusion of all other persons. In case any of
(a) When the deductions are authorized by law,
the heirs is a minor, such affidavit shall be
including deductions for the insurance
executed in his behalf by his natural guardian or
premiums advanced by the employer in behalf
next of kin. Upon presentation of the affidavit to
of the employee as well as union dues where
the employer, he shall make payment to the
the right to check-off has been recognized by
heirs as representative of the Secretary of Labor
the employer or authorized in writing by the
and Employment.
individual employee himself.
(b) When the deductions are with the written
authorization of the employees for payment to
SECTION 7. CIVIL LIABILITY OF EMPLOYER the third person and the employer agrees to do
AND CONTRACTORS. so; Provided, That the latter does not receive
/
any pecuniary benefit, directly or indirectly, from ● Article 1708. The laborer's wages shall
the transaction. not be subject to execution or
attachment, except for debts incurred
for food, shelter, clothing, and medical
SECTION 14. DEDUCTION FOR LOSS OR attendance.
DAMAGE. ● Article 1709. The employer shall
Where the employer is engaged in a trade, neither seize nor retain any tool or
occupation or business where the practice of other articles belonging to the laborer.
making deductions or requiring deposits is
recognized to answer for the reimbursement of Q: What is the penalty for violation of Article
loss or damage to tools, materials, or
112 of the Labor Code?
equipment supplied by the employer to the
employee, the employer may make wage
A: Any violation of Article 112 subjects the
deductions or require the employees to make offender to the general penalty clause in
deposits from which deductions shall be made, Article 288 of the Labor Code which imposes
subject to the following conditions: a fine of not less than P1,000 nor more than
P10,000 or imprisonment for not less than
(a) That the employee concerned is clearly three months nor more than three years, or
shown to be responsible for the loss or damage; both such fine and imprisonment at the
(b) That the employee is given reasonable discretion of the court.
opportunity to show cause why deduction
should not be made;
The Revised Penal Code imposes the penalty
(c) That the amount of such deduction is fair
and reasonable and shall not exceed the actual
of arresto mayor or a fine ranging from P200
loss or damage; and to P500 pesos, or both, upon any person,
(d) That the deduction from the wages of the agent or officer of any association or
employee does not exceed 20 percent of the corporation who shall force or compel.
employee's wages in a week. directly or indirectly, or shall knowingly permit
any laborer or employee employed by him or

by such firm or corporation, to be forced or
Q: Who bears the burden of proof of wage
compelled, to purchase merchandise or
payment?
commodities of any kind.
A: Where the employee alleges non-payment

of wages and/or commission, the employer
Q: What are the deductions authorized by
has the burden to prove payment.
law?

A: The following deductions are authorized by
The lmplementing Rules require every
existing laws:
employer to keep a payroll. Among other
(1) Deduction for value of meals,and other
things, it must show the length of time to be
facilities;
paid, the pay rate, the ;amount actually paid,
(2) In cases where the employee is insured
and so on. The employee should sign the
with his consent by the employer, deductions
payroll.
for· the amount paid by said employer, as

premiums on the insurance;
Q: What rules govern the prohibitions
(3) In cases where the right of the employees
regarding wages?
or his union to check-off has been recognized
A: In addition to the Labor Code provisions on
by the employer or authorized in writing by the
prohibitions regarding wages, the following
individual employee concerned;
articles of the Civil Code similarly protect
(4) In cases where the employee is indebted
earned wages:
to the employer, where such indebtedness has
● Article 1705. The laborer's wages shall
become due and demandable;
be paid in legal currency.
(5) In court awards, wages may be the subject
● Article 1706. Withholding of the wages
of execution or attachment, but only for debts
except for a debt due, shall not be
incurred for food, shelter, clothing, and
made by the employer.
medical attendance;
● Article 1707. The laborer's wages shall
(6) Withholding tax;
be a lien on the goods manufactured
(7) Salary deductions of a member of a legally
or the work done.
established cooperative; and
/
(8) SSS, medicare, and Pag-IBIG contributions. the court invalidated the work reduction and
construed it as constructive dismissal.
An employee’s payment of obligation to a third
person deductible from the employee’s wages Articles 113 and 114 of the Labor Code are
if the deduction is authorized in writing by the clear as to what are the exceptions to the
employee. The employer may agree to make general rule that prohibits deposits and
the deduction but is not obliged to do so. He deductions from the employees' salaries.
must not receive any pecuniary benefit, Posting of cash bonds and the making of
directly or indirectly, from the transaction. deductions from the wages would impose
additional burden upon the employees.
The Labor Code, in requiring an individual
written authorization as a prerequisite to Q: Can an employer simply refuse to pay
wage deductions, seeks to protect the wages?
employee against unwarranted practices that A: No. As a rule, what an employee has
would diminish his compensation without his worked for, his employer must pay. An an
knowledge and consent. employer cannot simply refuse to pay the
wages or benefits of its employee because he
Also, deductions for unpaid absences are has either defaulted in paying a loan
allowed. guaranteed by his employer; or violated their
● If the employee is monthly-paid, the memorandum of agreement; or failed to
equivalent daily rate should be render an accounting of his employer's
determined first before making the property.
deduction.
● The formula is: The monthly rate times Q: What are the records that an employer
12 divided by the number of days must keep?
considered paid in a year. A: Every employer shall keep a payroll wherein
the following
RIGHT TO REDUCE WORK DAYS information and data shall be individually
In situations where the employer has to shown:
reduce the number of regular work days to l. Length of time to be paid;
prevent serious losses, such as when there is 2. Rate of pay per month, week, day or hours,
a substantial slump in the demand for his/her piece, etc.;
goods or services or when there is lack of raw 3. Amount due for regular work;
materials, the employer may deduct the 4. Amount due for overtime work;
wages corresponding to the days taken off 5. Deductions made from the wages; and
from the work week, consistent with the 6. Amount actually paid.
principle of "no work, no pay." This is without
prejudice to an agreement or company policy The self-explanatory details about payroll and
which provides otherwise. time records are given in Rule X, Book lII of the
Implementing Rules.
Q: When is work reduction unjustified?
A: Reduction of work days that also reduces Q: Is the temporary withholding of salary and
the employee's income cannot be regarded as wages of workers a valid exercise of
a standard or routine employer's recourse. It is management prerogative?
an extreme measure, approximating loss of A: No. Although management prerogative
the worker's source of livelihood, that needs refers to "the right to regulate all aspects of
solid justification, namely the occurrence of employment," it cannot be understood to
severe financial losses. The losses must be include the right to temporarily withhold
shown by evidence. salary/wages without the consent of the
employee. Absent a showing that the
Where the business reverses were not proved withholding of wages falls under the
and, instead, it was shown that the work
reduction/rotation was implemented soon
after the affected employees filed complaints
for labor standards violations by the employer,
/
exceptions provided in Article 113, the holidays and night differentials. As such they
withholding thereof is thus unlawful.34 are deemed not part of the basic salary and
shall not be considered in the computation of
However, in a situation where workers are the 13th-month pay.35
allowed to use certain property as an act of
liberality as in Milan v. NLRC, an employer is As a rule, in resolving what particular types of
allowed to withhold terminal pay and benefits earnings and remuneration are or are not
pending the employee's return of its properly included or integrated in the basic
properties. salary are to be resolved on a case to case
basis.36
Withholding of payment by the employer does
not mean that the employer may renege on its
Phil. Duplicators Boie-Takeda/Philipp
obligation to pay employees their wages,
case ine Fuji Xerox Corp.
termination payments, and due benefits. The
case
employees' benefits are also not being
reduced. It is only subjected to the condition Sales commissions So-called
that the employees return properties properly earned by the commissions "paid
belonging to the employer. This is only salesmen who make to or received by
consistent with the equitable principle that "no or close a sale of medical
one shall be unjustly enriched or benefited at duplicating representatives of
the expense of another." machines distributed Boie-Takeda
by Duplicators. Chemicals or by the
rank and file
D. Thirteenth Month Pay employees of
Philippine Fuji Xerox
Co.
PD 851, as modified by Memorandum Order
No. 28 Sales commissions This were excluded
SECTION 1. All employers are hereby required were an integral part from the term "basic
to pay all their rank-and-file employees a of the basic salary salary" because
13th-month pay not later than December 24 of structure of these were paid to
every year. Philippine the medical
Duplicators' representatives and
SECTION 2. Employers already paying their
employees-salesmen rank-and-file
employees a 13th-month pay or its equivalent . employees as
are not covered by this Decree. "productivity
bonuses.”

Q: How do you compute 13th month pay? Thus, the salesmen's These payments as
A: The basic salary of an employee is used as commissions, additional monetary
the basis in the determination of his comprising a benefits not
13th-month pay. Any compensations or predetermined properly included in
remunerations which are deemed not part of percent of the selling the term "basic
the basic pay is excluded as basis in the price of the goods salary" in computing
computation of the mandatory bonus. sold by each their 13th month
salesman, were pay.
The all-embracing phrase "earnings and other properly included in
remunerations" which are deemed not part of the term "basic
the basic salary includes within its meaning salary" for purposes
payments for sick, vacation, or maternity of computing their
leaves, premium for works performed on rest 13th month pay.
days and special holidays, pays for regular

See SHS Perforated Materials v. Diaz; Commando

34 35
See San Miguel Corp. v. Inciong..
Security v. NLRC. 36
See Philippine Duplicators v. NLRC.
/
commission or commission with guaranteed
Sales commissions Productivity
wage.38
bonuses

Intimately related to Generally tied to the Q: Is an employer obliged to give its workers
or directly productivity or profit 13th month pay in addition to bonuses
proportional to the generation of the already granted?
extent or energy of employer A: No. Under PD 851, exempted from the
an employee's corporation. not obligation are employers already paying their
endeavors. directly dependent employees a 13th month pay or its equivalent.
on the extent an
Paid upon the individual employee The evident intention of the law was to grant
specific results exerts himself. an additional income in the form of a 13th
achieved by a month pay to employees not already receiving
salesman-employee.. Something extra for the same. The intention was to grant some
It is a percentage of which no specific relief — not to all workers — but only to the
the sales closed by a additional services unfortunate ones not actually paid a 13th
salesman and are rendered by any month salary or what amounts to it, by
operates as an particular employee whatever name it is called.
integral part and hence not
of such salesman's legally It was not envisioned that a double burden
basic pay. demandable, absent would be imposed on the employer already
a contractual paying his employees a 13th month pay or its
undertaking to pay equivalent — whether out of pure generosity
or on the basis of a binding agreement and, in
the latter case, regardless of the conditional
In Boie-Takeda, in declaring null and void the character of the grant (such as making the
revised guidelines issued is properly payment dependent on prot), so long as there
understood as holding it provides no legal is actual payment.
basis for including within the term
"commission" there used additional payments To require employers (already giving their
to employees which are, as a matter of fact, in employees a 13th month salary or its
the nature of profit-sharing payments or equivalent) to give a second 13th month pay
bonuses. It must be regarded as invalid as would be unfair and productive of undesirable
having been issued in excess of the statutory results.39
authority of the Secretary of Labor.
In DOLE Phils. Inc. v. Leogardo, it was held that
In remunerative schemes consisting of a fixed [i]t is clear that the year-end productivity
or guaranteed wage plus commission, the bonus granted by employer to the employees
fixed or guaranteed wage is patently the pursuant to their CBA is, in legal
"basic salary " for this is what the employee contemplation, an integral part of their 13th
receives for a standard work period. month pay, notwithstanding its conditional
Commissions are given for extra efforts nature. When, therefore, employer, in order to
exerted in consummating sales or other comply with the mandate of PD No. 851,
related transactions. They are, as such, credited the year-end productivity bonus as
additional pay, which this Court has made part of the 13th month pay and adopted the
clear do not form part of the "basic salary."37 procedure of paying only the difference
between said bonus and 1/12th of the
It is clear that every employee receiving a worker's yearly basic salary, it acted well
commission in addition to a fixed or within the letter and spirit of the law and its
guaranteed wage or salary is entitled to a 13 implementing rules. For in the event that "an
th month pay. It is immaterial whether
employees are paid a guaranteed wage plus
38
See PH Agricultural Commercial and Industrial
Workers Union v. NLRC.
39
See National Federation of Sugar Workers v.
See Boie-Takeda Chemicals v. Dela Serna.
37
Ovejera.
/
employer pays less than one-twelfth of the other payments amounting to not less than
employees' basic salary, all that said employer 1/12 of the basic salary but shall not include
is required to do under the law is to pay the cash and stock dividends, cost of living
difference. allowances and all other allowances regularly
enjoyed by the employee, as well as
Q: Does the payment of 13th month pay non-monetary benefits. Where an employer
preclude payment of 7-day bonus provided in pays less than required 1/12th of the
a CBA? employees basic salary, the employer shall
A: No. A bonus under the CBA is an obligation pay the difference.
created by the contract between the
management and workers while the 13th Q: Who are rank-and-file employees?
month pay is mandated by the law. It is A: As distinguished from a managerial
deemed to be in addition to the legal employee -
requirement.40
MANAGERIAL RANK-AND-FILE
EMPLOYEES EMPLOYEES
Revised Guidelines on the Implementation of [O]ne who is vested All employees not
the 13th Month Pay Law with powers of managerial
prerogatives to lay employees.
Q: Who are the exempted employers? down and execute
A: The following employers are still not management
covered by P.D. No. 851: policies and/or to
hire, transfer,
(1) The Government and any of its political suspend, lay-off,
subdivisions, including government-owned recall discharge,
and controlled corporations, except those assign or discipline
corporations operating essentially as private employees, or to
subsidiaries of the Government; effectively
(2) Employers already paying their employees recommend such
a 13th month pay or more in a calendar year managerial actions.
or its equivalent at the time of this issuance;

(3) Employers of household helpers and The above distinction shall be used as guide
persons in the personal service of another in for the purpose of determining who are
relation to such workers; and rank-and-file employees entitled to the
mandated 13th month pay.
(4) Employers of those who are paid on
purely commission, boundary, or task basis, Q: How much should the 13th month pay be?
and those who are paid a fixed amount for A: The minimum 13th month pay required by
performing specific work, irrespective of the law shall not be less than one-twelfth of the
time consumed in the performance thereof, total basic salary earned by an employee
except where the workers are paid on within a calendar year. The computation of the
piece-rate basis41 in which case the employer 13th month pay shall include the cost of living
shall grant the required 13th month pay to allowances (COLA) integrated into the basic
such workers. salary of a covered employee.42

The term "its equivalent" as used on 42
The "basic salary" of an employee for the
paragraph (b) hereof shall include Christmas purpose of computing the 13th month pay shall
bonus, mid-year bonus, cash bonuses and include all remunerations or earning paid by this
employer for services rendered but does not
40
See Universal Corn Products v. NLRC. include allowances and monetary benefits which
41
Workers paid on piece-rate basis shall refer to are not considered or integrated as part of the
those who are paid a standard amount for every regular or basic salary, such as the cash equivalent
piece or unit of work produced that is more or less of unused vacation and sick leave credits,
regularly replicated, without regard to the time overtime, premium, night differential and holiday
spent in producing the same. pay, and cost-of-living allowances. However, these
/
Q: When should the 13th month pay be paid?
of the number of months
A: The required 13th month pay shall be paid
they teach or are paid within
not later than December 24 of each year.
a year, if they have rendered

service for at least one (1)
An employer, however, may give to his
month within a year.
employees one half (½) of the required 13th
month pay before the opening of the regular
school year and the other half on before the Q: Are resigned or separated employees
24th of December of every year. The entitled to 13th month pay?
frequency of payment of this monetary benefit A: Yes. An employee who has resigned or
may be the subject of agreement between the whose services were terminated at any time
employer and the recognized/collective before the time for payment of the 13th
bargaining agent of the employees. month pay is entitled to this monetary benefit
in proportion to the length of time he worked
13TH MONTH PAY FOR CERTAIN TYPES OF during the year, reckoned from the time he
EMPLOYEES started working during the calendar year up to
the time of his resignation or termination from
EMPLOYEES (1) Paid on piece work
the service.
PAID BY basis. - Entitled to the 13th

RESULTS month pay.
The payment of the 13th month pay may be
(2) Paid a fixed or
demanded by the employee upon the
guaranteed wage plus
cessation of employer-employee relationship.
commission. - Also entitled
This is consistent with the principle of equity
to the mandated 13 month
that as the employer can require the employee
pay, based on their total
to clear himself of all liabilities and property
earnings during the
accountability, so can the employee demand
calendar year, i.e., on both
the payment of all benefits due him upon the
their fixed or guaranteed
termination of the relationship.
wage and commission.

THOSE WITH Government employees Q: Is 13th month pay included in the regular
MULTIPLE working part time in a wage?
EMPLOYERS private enterprise, including A: No. The mandated 13th month pay need
private educational not be credited as part of regular wage of
institutions, as well as employees for purposes of determining
employees working in two overtime and premium pays, fringe benefits
or more private firms, insurance fund, Social Security, Medicare and
whether on full or part time private retirement plans.
basis, are entitled to the
required 13th month pay
from all their private E. Service Charge
employers regardless of

their total earnings from
Article 96, Labor Code as amended by the
each or all their employers.
Service Charge Law (RA 11360)
PRIVATE Private school teachers, ARTICLE 96. SERVICE CHARGES.
SCHOOL including faculty members All service charges collected by hotels,
TEACHERS of universities and colleges, restaurants and similar establishments shall be
are entitled to the required distributed completely and equally among the
13th month pay, regardless covered workers except managerial employees.

In the event that the minimum wage is increased
by law or wage order, service charges paid to the
salary-related benefits should be included as part
covered employees shall not be considered in
of the basic salary in the computation of the 13th
determining the employer’s compliance with the
month pay if by individual or collective agreement,
increased minimum wage.
company practice or policy, the same are treated
as part of the basic salary of the employees.
/
To facilitate resolution of any dispute between SECTION 6. RELATION TO AGREEMENTS.
the management and the employees on the Nothing in this Rule shall prevent the employer
distribution of service charges, a grievance and his employees from entering into any
mechanism shall be established. If no grievance agreement with terms more favorable to the
mechanism is established or if inadequate, the employees than those provided herein, or be
grievance shall be referred to the regional office used to diminish any benefit granted to the
of the DOLE which has jurisdiction over the employees under existing laws, agreement and
workplace for conciliation. voluntary employer practice.

For purposes of this Article, managerial
employees refer to any person vested with SECTION 7.
powers or prerogatives to lay down and execute This rule shall be without prejudice to existing,
management policies or hire, transfer, suspend, future collective bargaining agreements.cralaw
lay-off, recall, discharge, assign, or discipline Nothing in this rule shall be construed to justify
employees or to effective recommend such the reduction or diminution of any benefit being
managerial actions. enjoyed by any employee at the time of
effectivity of this rule.

Omnibus Rules: Book III, Rule VI
Department Order No. 206-19
SECTION 1. COVERAGE.
This rule shall apply only to establishments

collecting service charges such as hotels, Q: What is service charge?
restaurants, lodging houses, night clubs, A: It refers to the amount that is added to the
cocktail lounge, massage clinics, bars, casinos bill for work or service rendered (Sec. 2(e), DO
and gambling houses, and similar enterprises, 206-19).
including those entities operating primarily as
private subsidiaries of the Government. Q: How should service charge be distributed?
A: All service charges actually collected by
establishments shall be distributed
SECTION 2. EMPLOYEES COVERED.
completely and equally, based on actual hours
This rule shall apply to all employees of covered
employers, regardless of their positions,
or days of work or service rendered, among
designations or employment status, and the covered employees, including those
irrespective of the method by which their wages already receiving the benefit of sharing in the
are paid except to managerial employees. service charges (Sec. 3, DO 206-19).

X X X DO 206-19 also provides:

X X X

SECTION 4. FREQUENCY OF DISTRIBUTION.
The shares referred to herein shall be
distributed and paid to the employees not less
than once every two (2) weeks or twice a month
at intervals not exceeding sixteen (16) days.

Q: How are tips handled?
SECTION 5. INTEGRATION OF SERVICE A: Tips are handled similarly as service
CHARGES.
charges. If a restaurant or similar
In case the service charges is abolished the
establishment does not collect service
share of covered employees shall be considered
integrated in their wages. The basis of the charges but has a practice or policy of
amount to be integrated shall be the average monitoring and pooling the tips given by
monthly share of each employee for the past customers, the pooled tips should be
twelve (12) months immediately preceding the monitored, accounted, and distributed in the
abolition of withdrawal of such charges. same manner as the service charges.

/
(2) the practice is consistent and deliberate;
F. Non-Diminution
(3) the practice is not due to error in the
construction or application of a doubtful or
Article 100, Labor Code difficult question of law; and
ARTICLE 100. PROHIBITION AGAINST (4) the diminution or discontinuance is done
ELIMINATION OR DIMINUTION OF BENEFITS. unilaterally by the employer.
Nothing in this Book shall be construed to
eliminate or in any way diminish supplements, The grant of benefits has ripened into
or other employee benefits being enjoyed at the company practice or policy which cannot be
time of promulgation of this Code. peremptorily withdrawn.

Q: What is the non-diminution rule43? Q: Does the non-diminution rule only apply to
A: Any benefit and supplement being enjoyed benefits enjoyed prior the adoption of the
by employees cannot be reduced, diminished, Labor Code?
discontinued or eliminated by the employer. A: Yes. The prohibition against elimination or
diminution of benefits set out in Art. 100 of
The principle of non-diminution of benefits is the Labor Code is specifically concerned with
founded on the Constitutional mandate to benefits already enjoyed at the time of
"protect the rights of workers and promote promulgation of the Labor Code.
their welfare," and "to afford labor full
protection." Article 100 does not purport to apply to
situations arising after the promulgation date
Said mandate in turn is the basis of Article 4 of the Labor Code. Assuming arguendo, it
of the Labor Code which states that "all does not prohibit a union from offering and
doubts in the implementation and agreeing to reduce wages and benefits of the
interpretation of this Code, including its employees.45
implementing rules and regulations shall be
rendered in favor of labor." Q: What are the exceptions to the
non-diminution rule?
Q: What are benefits? (1) Correction of error46;
A: As defined in the non-diminution rule, (2) Negotiated benefits47;
benefits refer to monetary benefits or (3) Wage order compliance48;
privileges given to the employee with 45
See Insular Hotel Employees Union v. Waterfront
monetary equivalents.
Insular Hotel Davao.
46
Absent clear administrative guidelines, the
In Royal Plant Workers Union v. Coca-Cola employer cannot be faulted for erroneous
Bottlers, where the operators were granted application of the law. Payment may be said to
chairs, it was held that this cannot be have been made by reason of a mistake in the
considered as one of the employee benefits construction or application of a doubtful or difficult
covered in Article 100 of the Labor Code. The question of law."
cases tackling Article 100 involve mainly
monetary considerations or privileges If it is a past error that is being corrected, no
vested right may be said to have arisen nor any
converted to their monetary equivalents.
diminution of benefit under Article 100 of the

Labor Code may be said to have resulted by virtue
Q: When can the rule against diminution of of the correction (See Globe Mackay Cable and
supplements or benefits may apply?44 Radio Corporation v. NLRC).
A: It must be shown that: 47
Benefits initiated through negotiation between
(1) the grant of the benefit is founded on a employer and employees, such as those contained
policy or has ripened into a practice over a in a collective bargaining agreement, are not within
long period; the prohibition of Article 100 because, as products
of bilateral contract, they can only be eliminated or
diminished bilaterally.What the law forbids is
elimination or modification done unilaterally by the
43
See Arco Metal Products v. Samahan ng mga employer.
Manggagawa sa Arco-Metal NAFLU. 48
[T]o ripen into a company practice that is
44
See Sevilla Trading Co. v. Semana. demandable as a matter of right, the giving of the
/
(4) Benefits on reimbursement basis49;
G. Worker Preference
(5) Reclassification of position, if done in good
faith50;
(6) Contingent benefits51 or conditional Article 110, Labor Code
bonus52; which can also be bonuses stipulated ARTICLE 110. WORKER PREFERENCE IN CASE
in the CBA, equity or long practice as a basis OF BANKRUPTCY.
of a bonus, and services rendered as a basis In the event of bankruptcy or liquidation of an
of a bonus, and employer's business, his workers shall enjoy
(7) Productivity incentives.53 first preference as regards their wages and
other monetary claims, any provisions of law to
For a bonus to be enforceable, it must have the contrary notwithstanding. Such unpaid
been promised by the employer and expressly wages and monetary claims shall be paid in full
before claims of the government and other
agreed upon by the parties, or it must have
creditors may be paid.
had a fixed amount and had been a long and
regular practice on the part of the employer.
Q: What does preference of workers’ money
To be considered a "regular practice," the claim mean?
giving of the bonus should have been done A: Article 110, as amended by RA No. 6715,
over a long period of time, and must be shown expand worker preference to cover not only
to have been consistent and deliberate.54 unpaid wages but also other monetary aims
to which even claims of the Government must
be deemed subordinate.

increase should not be by reason of a strict legal Note that, a declaration of bankruptcy or a
or contractual obligation, but by reason of an act judicial liquidation must be present before the
of liberality on the part of the employer. worker's preference may be enforced. Thus,
49
The elimination of an existing benefit in
Article 110 of the Labor Code and its
exchange for an equal or better one does not
implementing rule cannot be invoked without
violate Article 100 (See Asis v. Ministry of Labor.).
50
The personnel movement should not be intended a formal declaration of bankruptcy or a
to circumvent the law to deprive employees of the liquidation order.55
benefits they used to receive.
51
Neither does the rule under Article 100 apply to a Further, Article 110 must not be Viewed in
benefit whose grant depends on the existence of isolation arid must always be reckoned with
certain conditions, so that the benefit is not the provisions· of the Civil Code56.
demandable if those preconditions are absent.
52
As a rule, a bonus is an amount granted and paid A distinction should be made between a
to an employee for his industry and loyalty which
preference of credit and a lien. A preference
contributed to the success of the employer's
applies only to claims which do not attach to
business and made possible the realization of
profits. It is an act of generosity. It is granted by an specific properties. A lien creates a charge on
enlightened employer to spur the employee to a particular property. The right of first
greater efforts for the success of the business and preference as regards unpaid wages
realization of bigger profits. recognized by Article 110 does not constitute
a lien on the property of the insolvent debtor
Note that, an employer cannot be forced to in favor of workers. It is but a preference of
distribute bonuses which it can no longer afford to credit in their favor, a preference in
pay. To hold otherwise would be to penalize the application.57
employer for his past generosity.

53
R.A. No. 6971, enacted on November 22, 1990,
● What Article 110 of the Labor Code
aims to institute productivity at company level and
the sharing of productivity gain between employer establishes is not a lien, but a
and employees. The law promotes productivity preference of credit in favor of
which refers, simplistically said, to improved employees.
output without increasing the amount of input. The
monetary value of the productivity improvement
should be shared with the workers. 55
See Development Bank of the PH v. Labor Arbiter..
54
See American Wire and Cable Daily Rated 56
See Development Bank of the PH v. Secretary.
Employees Union v. American Wire and Cable. 57
See Development Bank of the PH v. NLRC.
/
● This simply means that during
services the former party in a litigation.
bankruptcy, insolvency or liquidation
has rendered to the
proceeding involving the existing
latter. The instances in
properties of the employer. the
which these may be
employees have the advantage of
The basis of this awarded ate those
having their unpaid wages satisfied
compensation is the enumerated in
ahead of certain claims which may be
fact of the attorney's Article 2208 of the
proved therein.
employment by and Civil Code,

his agreement with specifically
A preference does not exist in any effective
the client. paragraph 7 thereof,
way prior to, and apart from, the institution of
which pertains to
these proceedings, for it is only then that the
actions for recovery
legal provisions on concurrence and
of wages, and is
preference of credits begin to apply. Unlike a
payable not to the
lien, a preference of credit does not create in
lawyer but to the
favor of the preferred creditor a charge or
client, unless they
proprietary interest upon any particular
have agreed that
property of the debtor.
the· award shall

pertain to the lawyer
Q: What does the preference include?
as additional·
A: For purposes of application of Article 110,
compensation· or
termination pay is reasonably regarded as
as part thereof.
forming part of the remuneration or other
money benefits accruing to the employees or
workers by reason of their having previously Article 111 of the Labor Code, as amended,
rendered services. Hence, separation pay contemplates the extraordinary concept of
must be considered as part of remuneration attorneys fees.
for services rendered or to be rendered.'
It is imposed upon the losing party by the
adjudicator, who may be the labor arbiter, the
regional director, and other authorized
H. Attorney’s Fees
adjudicators. Such awarded attorney's fee
cannot exceed 10%. But outside of that, as
Article 111, Labor Code between the lawyer and the client, the
ARTICLE 111. ATTORNEY’S FEES.
attorney's fee may exceed 10% on the basis of
(a)In cases of unlawful withholding of wages, quantum meruit. In such a case, he would be
the culpable party may be assessed attorney's entitled to receive what he merits for his
fees equivalent to ten percent of the amount of services.
wages recovered.
It is essential for the proper operation of-the
(b) It shall be unlawful for any person to principle that there is an acceptance of the
demand or accept, in any judicial or benefits by one sought to be charged for the
administrative proceedings for the recovery of services rendered under circumstances as
wages, attorney's fees which exceed ten percent
reasonably to notify him that the lawyer
of the amount of wages recovered.
performing the task was expecting to be paid
compensation therefore. The doctrine of
Q: What are attorney’s fees? quantum meruit is a device to prevent undue
A: enrichment based on the equitable postulate
Ordinary Concept Extraordinary that it is unjust for.a person to retain benefit
Concept without paying for it.

[T]he reasonable Indemnity for
compensation paid damages ordered
to a lawyer by his by the court to be
client for the legal paid by the losing
/
Q: In what labor cases may attorney’s fees
WORKING CONDITIONS
may be granted?
A: In Reahs Corporation, the Court.cites only
two kinds of cases where attorney's fees may A. Management Prerogative
be assessed: (1) cases arising from unlawful
withholding of wages and (2) cases arising
from collective bargaining negotiations. Recall:
Q: What is management prerogative?
However, it must be emphasized that: it is to A: Management prerogative means that an
say that Article 111 of the Labor Code does employer is free to regulate according to his
not limit the award of attorney's fees to cases own judgement and discretion all aspects of
of unlawful withholding of wages only. What it employment. This includes employee transfer,
explicitly prohibits is the award of attorney's whether or not to grant bonuses, to impose
ft;es which exceed 10% of the amount of discipline, and other rules and regulations but
wages recovered. the exercise of management prerogative
should be exercised in good faith.
Q: Are non-lawyers entitled to attorney’s
fees? Management’s rights are subject to
A: No. Although the law allows; under certain limitations provided by law as well as
circumstances, non-lawyers to appear before individually, by contract, or by collectively, by
the National Labor Relations Commission or collective bargaining agreement and general
any Labor Arbiter, this, however, does not principles of fair play and justice.58
mean that they are entitled to attorney’s fees.
Entitlement to attorney's fees presupposes So long as a company's management
the existence of attorney-client relationship. prerogatives are exercised in good faith for
This relationship cannot exist unless the the advancement of the employer's interest
client's representative is a lawyer and not for the purpose of defeating or
circumventing the rights of the employees
Note that, previously, also disqualified from under special laws or under valid agreements,
being awarded attorney's fees are the lawyers this Court will uphold them.59
from the Public Attorney's Office (PAO) of the
Department of Justice. In a recent case, the Q: Is a stipulation against marriage a valid
Supreme Court has allowed PAO lawyers from ground to terminate the services of an
being awarded attorney’s fees, but it now goes employee?
to a trust fund. A: No. Regulation of manpower by the
company falls within the so-called
management prerogatives, which
prescriptions encompass the matter of hiring,
supervision of workers, work assignments,
working methods and assignments, as well as
regulations on the transfer of employees,
lay-off of workers, and the discipline,
dismissal, and recall of employees.

An employer is free to regulate, according to
his discretion and best business judgment , all
aspects of employment, "from hiring to firing,"
except in cases of unlawful discrimination or
those which may be provided by law.

A policy of not accepting or considering as
disqualified from work any woman worker

See Goya Inc. v. Goya Employees Union.
58
See San Miguel Brewery Sales Force Union v.

59
Ople.
/
who contracts marriage runs afoul of the test Further, violation of company rules carries
of, and the right against, discrimination, with it an impact to the operations and
afforded all women workers by our labor laws management of a company, and a company's
and by no less than the Constitution.60 decision to terminate an employee for these
purposes is a decision that should be
Q: Is a broadcasting company’s policy respected.63
requiring employees seeking public office to
file his/her resignation letter valid?
A: Yes. Working for the government and the
B. Coverage
company at the same time is clearly
disadvantageous and prejudicial to the rights
and interest not only of the company but the Article 82, Labor Code
public as well. ARTICLE 82. COVERAGE.
The provisions of this Title shall apply to
The policy was within the exercise of the employees in all establishments and
employer’s management prerogative. It is well undertakings whether for profit or not, but not to
within its rights to ensure that it maintains its government employees, managerial employees,
objectivity and credibility and freeing itself field personnel, members of the family of the
from any appearance of impartiality so that employer who are dependent on him for
the confidence of the viewing and listening support, domestic helpers, persons in the
personal service of another, and workers who
public in it will not be in any way eroded.
are paid by results as determined by the
Secretary of Labor in appropriate regulations.
Even as the law is solicitous of the welfare of
the employees, it must also protect the right As used herein, "managerial employees" refer to
of an employer to exercise what are clearly those whose primary duty consists of the
management prerogatives. The free will of management of the establishment in which they
management to conduct its own business are employed or of a department or subdivision
affairs to achieve its purpose cannot be thereof, and to other officers or members of the
denied.61 managerial staff.

"Field personnel" shall refer to non-agricultural
Q: Does the dismissal of an erring employee
employees who regularly perform their duties
and the allowance of the other to retire away from the principal place of business or
constitute unfair treatment? branch office of the employer and whose actual
A: No. As a rule, the law protects both the hours of work in the field cannot be determined
welfare of employees and the prerogatives of with reasonable certainty.
management. Courts will not interfere with

prerogatives of management on the discipline
Omnibus Rules: Book III, Rule I, Sections 1-2
of employees, as long as they do not violate
labor laws, collective bargaining agreements SECTION 1. GENERAL STATEMENT ON
if any, and general principles of fairness and COVERAGE.
justice. The provisions of this Rule shall apply to all
employees in all establishments and
undertakings, whether operated for profit or not,
Moreover, management is not precluded from
except to those specifically exempted under
condoning the infractions of its employees; as Section 2 hereof.
with any other legal right, the management
prerogative to discipline employees and
impose punishment may be waived. As far as

employee is concerned, the cooperative chose

not to waive its right to discipline and punish
her; this is its privilege as the holder of such SECTION 2. EXEMPTION.
right.62 The provisions of this Rule shall not apply to the
following persons if they qualify for exemption
under the conditions set forth herein:
60
See PT&T v. NLRC.
61
See Ymbong v. ABS-CBN.
62
See Tabuk Multi-Purpose Coop v. Duclan. 63
See Central Azucarera de Bais v. Heirs of Apostol.
/
Book Three of these regulations, or where such
(a) Government employees whether employed rates have been fixed by the Secretary of Labor
by the National Government or any of its and Employment in accordance with the
political subdivision, including those employed aforesaid Section.
in government-owned and/or controlled
corporations; (f) Non-agricultural field personnel if they
regularly perform their duties away from the
(b) Managerial employees, if they meet all of the principal or branch office or place of business of
following conditions: the employer and whose actual hours of work in
(1) Their primary duty consists of the the field cannot be determined with reasonable
management of the establishment in which they certainty.
are employed or of a department or sub-division
thereof.
(2) They customarily and regularly direct the Article 82 says that the law on conditions of
work of two or more employees therein. employment applies to all employees in all
(3) They have the authority to hire or fire establishments.
employees of lower rank; or their suggestions
and recommendations as to hiring and firing Q: Who are the employees that are or are not
and as to the promotion or any other change of covered by the law on conditions of
status of other employees, are given particular employment?
weight. A: (1) Government employees64;

(2) Managerial employees, including other
(c) Officers or members of a managerial staff if
they perform the following duties and officers or members of the managerial staff;
responsibilities: (3) Field personnel65;
(1) The primary duty consists of the (4) The employer's family members who
performance of work directly related to depend on him for support;
management policies of their employer; (5) Domestic helpers and persons in the
(2) Customarily and regularly exercise discretion personal service of another66; and
and independent judgment; and
(3) (i) Regularly and directly assist a proprietor
or a managerial employee whose primary duty
64
Government employees are governed by the Civil
consists of the management of the Service rules and regulations, not by the Labor
establishment in which he is employed or Code, particularly this Title on employment
subdivision thereof; or (ii) execute under general conditions. But this exclusion does not refer to
supervision work along specialized or technical employees of government agencies and
lines requiring special training, experience, or government corporations that are incorporated
knowledge; or (iii) execute, under general under the Corporation Code. To them, the Labor
supervision, special assignments and tasks; Code applies.
and
65
Recall: As a general rule, field personnel" are
(4) Who do not devote more than 20 percent of those whose performance of their job/ service is
their hours worked in a work week to activities not supervised by the employer or his
which are not directly and closely related to the representative, the workplace being away from the
performance of the work described in principal office and whose hours and days of work
paragraphs (1), (2) and (3) above. cannot be determined with reasonable certainty;
hence, they are paid specific' amount for rendering
(d) Domestic servants and persons in the specific service or performing specific work. If
personal service of another if they perform such required to be at specific places at specific times,
services in the employer's home which are employees including drivers cannot be said to be
usually necessary or desirable for the field personnel despite the fact that they are
maintenance and enjoyment thereof, or minister performing work away from the principal office of
to the personal comfort, convenience, or safety the employer.
of the employer as well as the members of his
employer's household. If usage of work hours is supervised, the employee
is not a "field personnel." Same rule applies to an
(e) Workers who are paid by results, including employee paid on task or commission basis.
those who are paid on piece-work, "takay,"
"pakiao" or task basis, and other non-time work
66
Excluded also from the coverage of the law on
if their output rates are in accordance with the working conditions are domestic servants and
standards prescribed under Section 8, Rule VII, persons in the personal service of another if they
perform such services in the employer's home
/
(7) Workers who are paid by results as In National Sugar Refineries Corp. v. NLRC, the
determined under DOLE regulations. union members who were supervisory
employees should be considered as officers
Q: Are supervisory employees, being officers and members of the managerial staff and are,
of the managerial staff are entitled to therefore, exempt from the coverage of Article
benefits? 82.
A: No. The question whether a given
employee is exempt from the benefits of the Q: Does the Eight-Hour Labor Law apply to
law is a factual one dependent on the employees paid on a piece-work basis, or
circumstances of the particular case. In commission basis?
determining whether an employee is within A: No. Eight-Hour Labor Law only has
the terms of the statutes, the criterion is the application where an employee or laborer is
character of the work performed, rather than paid on a monthly or daily basis, or is paid a
the title of the employee's position. monthly or daily compensation, in which case,
if he is made to work beyond the requisite
Supervisors discharge duties and period of 8 hours, he should be paid the
responsibilities which ineluctably qualify them additional compensation prescribed by law.
as officers or members of the managerial
staff. This law has no application when the
employee or laborer is paid on a piece-work,
The Implementing Rules of the Labor Code "pakiao", or commission basis, regardless of
define members of a managerial staff as the time employed. The philosophy behind
those with the following duties and this exemption is that his earnings in the form
responsibilities: of commission based on the gross receipts of
(1) The primary duty consists of the the day. His participation depends upon his
performance of work directly related to industry so that the more hours he employs in
management policies of the employer; the work the greater are his gross returns and
(2) Customarily and regularly exercise the higher his commission.68
discretion and independent judgment;
(3) (i) Regularly and directly assist a proprietor Q: Is an employee entitled to service
or a managerial employee whose primary duty incentive leave even if s/he is paid on a
consists of the management of the purely commission basis?
establishment in which he is employed or A: Yes. The grant of service incentive leave
subdivision thereof; or (ii) execute under has been delimited by the Implementing Rules
general supervision work along specialized or and Regulations of the Labor Code to apply
technical lines requiring special training, only to those employees not explicitly
experience, or knowledge; or (iii) execute excluded by Section 1 of Rule V. The phrase
under general supervision special "other employees whose performance is
assignments and tasks; and unsupervised by the employer" must not be
(4) who do not devote more than 20 percent understood as a separate classification of
of their hours worked in a workweek to employees to which service incentive leave
activities which are not directly and closely shall not be granted. Rather, it serves as an
related to the performance of the work amplification of the interpretation definition of
described in paragraphs (1), (2), and (3) field personnel under the Labor Code as those
above.67 "whose actual hours of work in the field
cannot be determined with reasonable
certainty."69
Employees engaged on task or contract basis
which are usually necessary or desirable for the or paid on purely commission basis are not
maintenance or the enjoyment thereof, or minister automatically exempted from the grant of
to the personal comfort, convenience or safety of
the employer, as well as the members of the
employer's household (See Apex Mining Company,
Inc. v. NLRC). 68
See San Miguel Brewery, Inc. v. Democratic Labor
Organization.
67
See Penaranda v. Banganga Plywood Corp. 69
See Mercidar Fishing Corp. v. NLRC.
/
service incentive leave, unless they fall under performed between ten o'clock in the evening
the classification of field personnel.70 and six o'clock in the morning.

ARTICLE 87. OVERTIME WORK.
C. Hours of Work
Work may be performed beyond eight (8) hours
a day provided that the employee is paid for the
Articles 83-90, Labor Code overtime work, an additional compensation
equivalent to his regular wage plus at least
ARTICLE 83. NORMAL HOURS OF WORK. twenty-five percent (25%) thereof. Work
The normal hours of work of any employee shall performed beyond eight hours on a holiday or
not exceed eight (8) hours a day. rest day shall be paid an additional
compensation equivalent to the rate of the first
Health personnel in cities and municipalities eight hours on a holiday or rest day plus at least
with a population of at least one million thirty percent (30%) thereof.
(1,000,000) or in hospitals and clinics with a bed
capacity of at least one hundred (100) shall hold
regular office hours for eight (8) hours a day, for ARTICLE 88. UNDERTIME NOT OFFSET BY
five (5) days a week, exclusive of time for meals, OVERTIME.
except where the exigencies of the service Undertime work on any particular day shall not
require that such personnel work for six (6) days be offset by overtime work on any other day.
or forty-eight (48) hours, in which case, they Permission given to the employee to go on
shall be entitled to an additional compensation leave on some other day of the week shall not
of at least thirty percent (30%) of their regular exempt the employer from paying the additional
wage for work on the sixth day. For purposes of compensation required in this Chapter.
this Article, "health personnel" shall include
resident physicians, nurses, nutritionists,
dieticians, pharmacists, social workers, ARTICLE 89. EMERGENCY OVERTIME WORK.
laboratory technicians, paramedical technicians, Any employee may be required by the employer
psychologists, midwives, attendants and all to perform overtime work in any of the following
other hospital or clinic personnel. cases:
(a) When the country is at war or when any
other national or local emergency has been
ARTICLE 84. HOURS WORKED. declared by the National Assembly or the Chief
Hours worked shall include (a) all time during Executive;
which an employee is required to be on duty or (b) When it is necessary to prevent loss of life or
to be at a prescribed workplace; and (b) all time property or in case of imminent danger to public
during which an employee is suffered or safety due to an actual or impending emergency
permitted to work. in the locality caused by serious accidents,fire,
flood, typhoon, earthquake, epidemic, or other
Rest periods of short duration during working disaster or calamity;
hours shall be counted as hours worked. (c) When there is urgent work to be performed
on machines, installations, or equipment, in
order to avoid serious loss or damage to the
ARTICLE 85. MEAL PERIODS. employer or some other cause of similar nature;
Subject to such regulations as the Secretary of (d) When the work is necessary to prevent loss
Labor may prescribe, it shall be the duty of every or damage to perishable goods; and
employer to give his employees not less than (e) Where the completion or continuation of the
sixty (60) minutes time-off for their regular work started before the eighth hour is
meals. necessary to prevent serious obstruction or
prejudice to the business or operations of the
employer.

ARTICLE 86. NIGHT-SHIFT DIFFERENTIAL. Any employee required to render overtime work
Every employee shall be paid a night shift under this Article shall be paid the additional
differential of not less than ten percent (10%) of compensation required in this Chapter.
his regular wage for each hour of work

70
See Auto Bus Transport Systems v. Bautista.
/
ARTICLE 90. COMPUTATION OF ADDITIONAL SECTION 5. WAITING TIME.
COMPENSATION. (a) Waiting time spent by an employee shall be
For purposes of computing overtime and other considered as working time if waiting is an
additional remuneration as required by this integral part of his work or the employee is
Chapter, the "regular wage" of an employee shall required or engaged by the employer to wait.
include the cash wage only, without deduction
on account of facilities provided by the (b) An employee who is required to remain on
employer. call in the employer's premises or so close
thereto that he cannot use the time effectively
and gainfully for his own purpose shall be
considered as working while on call. An
Omnibus Rules: Book III, Rule I, Sections 3-11; employee who is not required to leave word at
Rule I-A, and Rule II his home or with company officials where he
may be reached is not working while on call.
Hours of Work

X X X SECTION 6. LECTURES, MEETINGS, TRAINING
PROGRAMS.
Attendance at lectures, meetings, training
SECTION 4. PRINCIPLES IN DETERMINING programs, and other similar activities shall not
HOURS WORKED. be counted as working time if all of the
The following general principles shall govern in following conditions are met:
determining whether the time spent by an
employee is considered hours worked for (a) Attendance is outside of the employee's
purposes of this Rule: regular working hours;
(b) Attendance is in fact voluntary; and
(a) All hours are hours worked which the (c) The employee does not perform any
employee is required to give his employer, productive work during such attendance.
regardless of whether or not such hours are
spent in productive labor or involve physical or
mental exertion. SECTION 7. MEAL AND REST PERIODS.
Every employer shall give his employees,
(b) An employee need not leave the premises of regardless of sex, not less than one (1) hour
the workplace in order that his rest period shall time-off for regular meals, except in the
not be counted, it being enough that he stops following cases when a meal period of not less
working, may rest completely and may leave his than twenty (20) minutes may be given by the
work place, to go elsewhere, whether within or employer provided that such shorter meal
outside the premises of his work place. period is credited as compensable hours
worked of the employee:
(c) If the work performed was necessary, or it
benefited the employer, or the employee could (a) Where the work is non-manual work in
not abandon his work at the end of his normal nature or does not involve strenuous physical
working hours because he had no replacement, exertion;
all time spent for such work shall be considered (b) Where the establishment regularly operates
as hours worked, if the work was with the not less than sixteen (16) hours a day;
knowledge of his employer or immediate (c) In case of actual or impending emergencies
supervisor. or there is urgent work to be performed on
machineries, equipment or installations to avoid
(d) The time during which an employee is serious loss which the employer would
inactive by reason of interruptions in his work otherwise suffer; and
beyond his control shall be considered working (d) Where the work is necessary to prevent
time either if the imminence of the resumption serious loss of perishable goods.
of work requires the employee's presence at the
place of work or if the interval is too brief to be Rest periods or coffee breaks running from five
utilized effectively and gainfully in the (5) to twenty (20) minutes shall be considered
employee's own interest. as compensable working time.

X X X

/
(d) When the work is necessary to prevent loss
SECTION 9. PREMIUM AND OVERTIME PAY FOR or damage to perishable goods;
HOLIDAY AND REST DAY WORK.
(a) Except employees referred to under Section (e) When the completion or continuation of
2 of this Rule, an employee who is permitted or work started before the 8th hour is necessary to
suffered to work on special holidays or on his prevent serious obstruction or prejudice to the
designated rest days not falling on regular business or operations of the employer; or
holidays, shall be paid with an additional
compensation as premium pay of not less than (f) When overtime work is necessary to avail of
thirty percent (30%) of his regular wage. For favorable weather or environmental conditions
work performed in excess of eight (8) hours on where performance or quality of work is
special holidays and rest days not falling on dependent thereon.
regular holidays, an employee shall be paid an
additional compensation for the overtime work In cases not falling within any of these
equivalent to his rate for the first eight hours on enumerated in this Section, no employee may
a special holiday or rest day plus at least thirty be made to work beyond eight hours a day
percent (30%) thereof. against his will.

(b) Employees of public utility enterprises as
well as those employed in non-profit institutions
Hours of Work of Hospital and Clinic Personnel
and organizations shall be entitled to the
premium and overtime pay provided herein, SECTION 1. GENERAL STATEMENT ON
unless they are specifically excluded from the COVERAGE.
coverage of this Rule as provided in Section 2 This Rule shall apply to:
hereof.
(a) All hospitals and clinics, including those with
(c) The payment of additional compensation for a bed capacity of less than one hundred (100)
work performed on regular holidays shall be which are situated in cities or municipalities
governed by Rule IV, Book Three, of these with a population of one million or more; and
Rules.cralaw (b) All hospitals and clinics with a bed capacity
of at least one hundred (100), irrespective of the
size of the population of the city or municipality
SECTION 10. COMPULSORY OVERTIME WORK. where they may be situated.
In any of the following cases, an employer may
require any of his employees to work beyond
eight (8) hours a day, provided that the SECTION 2. HOSPITAL OR CLINICS WITHIN THE
employee required to render overtime work is MEANING OF THIS RULE.
paid the additional compensation required by The terms "hospitals" and "clinics" as used in
these regulations: this Rule shall mean a place devoted primarily
to the maintenance and operation of facilities
(a) When the country is at war or when any for the diagnosis, treatment and care of
other national or local emergency has been individuals suffering from illness, disease, injury,
declared by Congress or the Chief Executive; or deformity, or in need of obstetrical or other
medical and nursing care. Either term shall also
(b) When overtime work is necessary to prevent be construed as any institution, building, or
loss of life or property, or in case of imminent place where there are installed beds, or cribs, or
danger to public safety due to actual or bassinets for twenty-four (24) hours use or
impending emergency in the locality caused by longer by patients in the treatment of disease,
serious accident, fire, floods, typhoons, injuries, deformities, or abnormal physical and
earthquake, epidemic or other disaster or mental states, maternity cases or sanitorial
calamities; care; or infirmaries, nurseries, dispensaries, and
such other similar names by which they may be
(c) When there is urgent work to be performed designated.
on machines, installations, or equipment, in
order to avoid serious loss or damage to the
employer or some other causes of similar SECTION 3. DETERMINATION OF BED
nature; CAPACITY AND POPULATION.
(a) For purposes of determining the applicability
of this Rule, the actual bed capacity of the
/
hospital or clinic at the time of such SECTION 7. OVERTIME WORK.
determination shall be considered, regardless of Where the exigencies of the service so require
the actual or bed occupancy. The bed capacity as determined by the employer, any employee
of hospital or clinic as determined by the Bureau covered by this Rule may be scheduled to work
of Medical Services pursuant to Republic Act for more than five (5) days or forty (40) hours a
No. 4226, otherwise known as the Hospital week, provided that the employee is paid for the
Licensure Act, shall prima facie be considered overtime work an additional compensation
as the actual bed capacity of such hospital or equivalent to his regular wage plus at least
clinic. thirty percent (30%) thereof, subject to the
provisions of this Book on the payment of
(b) The size of the population of the city or additional compensation for work performed on
municipality shall be determined from the latest special and regular holidays and on rest days.
official census issued by the Bureau of the
Census and Statistics.
SECTION 8. HOURS WORKED.

In determining the compensable hours of work
SECTION 4. PERSONNEL COVERED BY THIS of hospital and clinic personnel covered by this
RULE. Rule, the pertinent provisions of Rule 1 of this
This Rule applies to all persons employed by Book shall apply.
any private or public hospital or clinic
mentioned in Section 1 hereof, and shall

include, but not limited to, resident physicians, SECTION 9. ADDITIONAL COMPENSATION.
nurses, nutritionists, dieticians, pharmacists, Hospital and clinic personnel covered by this
social workers, laboratory technicians Rule, with the exception of those employed by
paramedical technicians, psychologists, the Government, shall be entitled to an
midwives, and attendants. additional compensation for work performed on
regular and special holidays and rest days as

provided in this Book. Such employees shall
SECTION 5. REGULAR WORKING HOURS. also be entitled to overtime pay for services
The regular working hours of any person rendered in excess of forty hours a week, or in
covered by this Rule shall not be more than excess of eight hours a day, whichever will yield
eight (8) hours in any one day nor more than the higher additional compensation to the
forty (40) hours in any one week. employee in the work week.

For purposes of this Rule a "day" shall mean a
work day of twenty-four (24) consecutive hours SECTION 10. RELATION TO RULE I.
beginning at the same time each calendar year. All provisions of Rule I of this Book which are
A "week" shall mean the work of 168 not inconsistent with this Rule shall be deemed
consecutive hours, or seven consecutive applicable to hospital and clinic personnel.
24-hour work days, beginning at the same hour
and on the same calendar day each calendar
week. Night Shift Differential

SECTION 1. COVERAGE.
SECTION 6. REGULAR WORKING DAYS. This Rule shall apply to all employees except:
The regular working days of covered employees (a) Those of the government and any of its
shall not be more than five days in a work week. political subdivisions, including
The work week may begin at any hour and on government-owned and/or controlled
any day, including Saturday or Sunday, corporations;
designated by the employer. (b) Those of retail and service establishments
regularly employing not more than five (5)
Employers are not precluded from changing the workers;
time at which the work day or work week (c) Domestic helpers and persons in the
begins, provided that the change is not intended personal service of another;
to evade the requirements of this Rule. (d) Managerial employees as defined in Book
Three of this Code;
(e) Field personnel and other employees whose
time and performance is unsupervised by the
employer including those who are engaged on
/
task or contract basis, purely commission basis, hour operation is necessary, to utilize different
or those who are paid a fixed amount for shifts of laborers or employees working only
performing work irrespective of the time for eight hours each.
consumed in the performance thereof.
Q: Is it prohibited to have “normal hours of

work” of less than 8 hours?
X X X
A: No. What the law regulates is work hours

exceeding eight. lt prescribes a maximum but
SECTION 3. ADDITIONAL COMPENSATION. not a minimum. Article 83 does not say that
Where an employee is permitted or suffered to the normal hours of work is or should be
work on the period covered after his work eight hours but that it shall not exceed eight.
schedule, he shall be entitled to his regular Therefore, part-time work, or a day's work of
wage plus at least twenty-five per cent (25%)
less than eight hours, is not prohibited.
and an additional amount of no less than ten
per cent (10%) of such overtime rate for each

hour or work performed between 10 p.m. to 6 Q: What are the work hours of health
a.m. personnel?
A: The law provides for a 40-hour work week.
Health personnel covered by the 40-hour
SECTION 4. ADDITIONAL COMPENSATION ON workweek shall include, but not be limited to,
SCHEDULED REST DAY/SPECIAL HOLIDAY. resident physicians, nurses, nutritionists,
An employee who is required or permitted to dieticians, pharmacists, social workers,
work on the period covered during rest days laboratory technicians, paramedical·
and/or special holidays not falling on regular
technicians, psychologists, midwives,
holidays, shall be paid a compensation
attendants, and all other hospital or clinic
equivalent to his regular wage plus at least
thirty (30%) per cent and an additional amount personnel.
of not less than ten (10%) per cent of such
premium pay rate for each hour of work What Article 83 merely provides are: (1) the
performed. regular office hour of eight hours a day, five
days per week for health personnel, and (2)

where the exigencies of service require that
SECTION 5. ADDITIONAL COMPENSATION ON health personnel work for six days or
REGULAR HOLIDAYS. forty-eight hours then such health personnel
For work on the period covered during regular shall be entitled to an additional
holidays, an employee shall be entitled to his compensation of at least 30% of their regular
regular wage during these days plus an
wage for work on the sixth day. There is
additional compensation of no less than ten
(10%) per cent of such premium rate for each nothing in the law that supports then
hour of work performed. Secretary of Labor’s assertion that “personnel
in subject hospitals and clinics are entitled to
a full weekly wage for seven (7) days if they
SECTION 6. RELATION TO AGREEMENTS. have completed the 40-hour/5-day workweek
Nothing in this Rule shall justify an employer in in any given workweek.”71
withdrawing or reducing any benefits,
supplements or payments as provided in Q: What are included in the work hours?
existing individual or collective agreements or A: (1) Preliminary activities72;
employer practice or policy. (2) Waiting time73;

Q: What is the normal hours of work of any 71
See San Juan De Dios Hospital Employees
employee? Association v. NLRC.
A: It shall not exceed 8 hours. 72
Preliminary. (before work) activities and
postliminary (after acwal work) activities are
The Eight-hour Labor Law was enacted not deemed performed during working hours, where
only to safeguard the health and welfare of such activities are controlled or required by the
the laborer or employee, but in a way to employer and are pursued necessarily and
minimize unemployment by forcing primarily for the employer's benefit.
73
Waiting time spent by an.employee shall be
employers, in cases where more than eight
considered as working time if waiting is
/
(3) On call74; and (d) where the work is necessary to prevent
(4) Travel time, specifically travel that is all in serious loss of perishable goods.
the day’s work (not home-to-work)75 and travel
away from home76. The above situations of shortening the meal
time are, logically, similar to the situations of
No general rule can be laid down as to what emergency overtime work under Article 89.
constitutes compensable work, but rather the
question is one of fact depending upon the Q: How do you compute for night shift
particular circumstances, to be determined by differential pay?
the courts in controverted cases.77 A: Regular hourly rate x 110%

Q: How long is meal time? Q: Who has the burden of proving a claim for
A: Article 85 requires the employer to give night shift differential pay?
employees 60 minutes time-off for their A: The worker who claims not to have been
regular meals. Meal time is not compensable paid night shift differential.
except in cases where the lunch period or
meal time is predominantly spent for the Q: What is overtime pay?
employer's benefit or where it is less than 60 A: Overtime compensation is additional pay
minutes. for service or work rendered or performed in
● Where work is continuous for several excess of eight hours a day by employees or
shifts, the meal time breaks should be laborers in employment covered by the
counted as working time for purposes Eight-hour Labor Law and not exempt from its
of overtime compensation. requirements. It is computed by multiplying
the overtime hourly rate by the number of
Q: When can the meal break be shortened to hours worked in excess of eight.
less than 60 minutes?
A: The situations where the meal break may Q: Will the receipt of overtime pay preclude
be shortened to less than the right to night differential pay?
60 minutes, with full pay, are the following: · A: No. The latter is payment for work done
(a) where the work is non-manual or does not during the night while the other is payment for
involve serious physical exertion; the excess of the regular eight-hour work.
(b) where the establishment regularly
operates not less than 16 hours a day; Q: Can overtime offset undertime?
(c) where there is actual or impending A: No. To allow off-setting would prejudice the
emergencies or there is urgent work. to be worker. He would be deprived of the additional
performed on machineries, equipment or pay for the rest day work he has rendered and
installation to avoid serious loss which the which is utilized to offset his equivalent time
employer would otherwise suffer; and off on regular workdays. To allow the
employer to do so would be to circumvent the
law on payment of premiums for rest day and
considered an integral part of his work or if the holiday work.78
employee is required or engaged by an employer to
wait. Q: How do you compute for overtime pay?
74
if they are required to be in their place of work A:
before or after the regular working hours and If overtime pay on a regular working day:
within the call of their employers, the time they Regular working rate x 125%
stay in the place of work. should not be discounted

from their working hours.
75
See Rada v. NLRC. If overtime pay on a regular working day with
76
Travel away from home is clearly worktime when night shift differential:
it cuts across the employee's workday. The Regular working rate x 125% x 110%
employee is simply substituting travel for other
duties. The time is hours worked not only on If overtime pay on a rest day or holiday
regular working days during normal working hours Hourly rate on rest day day/holiday x 130%
but also during the corresponding hours on
nonworking days
77
See National Development Co. v. CIR. 78
See Lagatic v. NLRC.
/
technical sense. Hence, the LA is not
Q: May the CBA stipulate higher overtime pay precluded from accepting and evaluating
rate? evidence other than, and even contrary to,
A: Yes. It is not for the court to impose upon what is stated in, the CBA.80
the parties anything beyond what they have
agreed upon which is not tainted with Q: May the right to overtime work pay be
illegality. waived?
A: No.
Q: How do you convert monthly rate to daily GENERAL RULE: The right to overtime pay
rate? cannot be waived. The right is intended for the
A: The divisor in computing an employee's benefit of the laborers and employees. Any
basic daily rate should be the actual working stipulation in the contract that the laborer
days in a year. The number of off days are not shall work beyond the regular eight hours
to be counted precisely because on such off without additional compensation for the extra
days, an employee is not required to work. hours is contrary to law and null and void.81
EXCEPTIONS:
Using the number of actual work days as (1) Where the alleged waiver of overtime pay
divisor finds particular relevance in situations is in consideration of benefits and privileges
where the employee's monthly salary, when which may be more than what will accrue to
reduced into its daily equivalent, would only them in overtime pay, the waiver may be
suffice to meet the daily minimum wage permitted.
requirement under pertinent wage orders. In (2) Compressed Workweek
·this situation, the use of a bigger divisor may ● Under this scheme, the number of
even show noncompliance with the minimum work days is reduced but the number
wage law. of work hours in a day is increased to
more than eight, but no overtime pay
Q: How is “work day” counted? may be claimed. [A] CWW scheme is
A: A day is understood to be the 24-hour an alternative arrangement whereby
period which commences from the time the the normal workweek is reduced to
employee regularly starts to work. less than six days but the total number
of normal work hours per week shall
If an employee works from 8AM to 4PM, the remain at 48 hours. The normal
work day of such employee is from 8AM to workday is increased to more than
8AM the following day. Any work in excess of eight hours without corresponding
the 8 hours within the 24-hour period is overtime premium.
considered as overtime work, regardless of ● [A]doption of the CWW scheme is valid
whether the work covers 2 calendar days. only if the conditions stated in the
Advisory are observed; otherwise,
Q: How is overtime work proven? overtime pay may still be claimed.
A: Rendition of work must be proved by
substantial evidence by the claimant. On the The conditions are:
other hand, the employer who avers payment (1) The scheme is expressly and
must prove it.79 voluntarily supported by majority of
the employees affected.
The principles of estoppel and laches cannot (2) In firms using substances, or
be invoked against employees or laborers in operating in conditions that are
an action for the recovery of compensation hazardous to health, a certification is
for past overtime work. needed from an accredited safety
organization or the firm's safety
In labor cases pending before the committee that work beyond eight
Commission or the LA, rules of procedure and hours is within the limits or levels of
evidence are not applied in a very rigid and
80
See Interphil Laboratories Employees Union v.
See Prangan v. NLRC; National Semiconductors
79
Interphil Laboratories.
Distribution Ltd. v. NLRC. 81
See PESALA v. NLRC; Mercury Drug Co. v. Dayao.
/
exposure set by DOLE's occupational Q: Are faculty members entitled to ECOLA
safety and health standards. during semestral breaks?
(3) The DOLE regional office is duty A: Yes. They are forced to go on leave during
notified. the semestral breaks.These breaks are in the
nature of work interruptions beyond the
Q: What are flexible work arrangements employees' control. They cannot be
(FWA)? considered as absences within the meaning
A: Flexible work arrangements refer to of the law for which deductions may be made
alternative arrangements or schedules other from monthly allowances.
than the traditional or standard work hours,
workdays or workweek. Employers may adopt It was not the intention of the framers of the
them. After due consultation with employees, law to allow employers to withhold employee
taking into account the adverse consequence benefits by the simple expedient of unilaterally
of the situation on the performance and imposing "no work" days and consequently
financial condition of the company. avoiding compliance with the mandate of the
law for those days.83
The effectivity and implementation of FWA
shall be temporary. In addition to compressed Q: Should a seaman be credited for hours of
workweek, the FWAs include: overtime for being “detailed on board”?
(1) Reduction of workdays where the normal A: No. Seamen are required to stay on board
workdays per week are reduced but should their vessels by the very nature of their duties,
not last for more than six months. and it is for this reason that, in addition to
(2) Rotation of workers where the employees their regular compensation, they are given free
are rotated or alternately provided work within living quarters and subsistence allowances
the workweek. when required to be on board. It could not
(3) Forced leave where the employees are have been the purpose of our law to require
required to go on leave for several days or their employers to pay them overtime even
weeks, utilizing their leave credits if there are when they are not actually working; otherwise,
any. every sailor on board a vessel would be
(4) Broken-time schedule where the work entitled to overtime for sixteen hours each
schedule is not continuous but the number of day, even if he had spent all those hours
work hours within the day or week is not resting or sleeping in his bunk, after his
reduced. regular tour of duty. The correct criterion in
(5) Flexi-holiday schedule where the determining whether or not sailors are entitled
employees agree to avail themselves of the to overtime pay is not, therefore, whether they
holidays at some other days, provided that were on board and cannot leave ship beyond
there is no diminution of existing benefits as a the regular eight working hours a day, but
result of such arrangement whether they actually rendered service in
excess of said number of hours.84
Q: Does an agreement to pay certain specific
wages for twelve-hour shifts include Q: Is the act of management in revising the
overtime compensation? work schedule of its employees and
A: No. A contract of employment, which discarding their paid lunch break constitutive
provides for a weekly wage for a specified of unfair labor practice?
number of hours, sufficient to cover both the A: No. The right to fix the work schedules of
statutory minimum wage and overtime the employees rests principally on their
compensation , if computed on the basis of employer. Management retains the
the statutory minimum, and which makes no prerogative, whenever exigencies of the
provision for a fixed hourly rate or that the service so require, to change the working
weekly wage includes overtime hours of its employees. So long as such
compensation, does not meet the prerogative is exercised in good faith for the
requirements of the Act.82
83
See University of Pangasinan Faculty Union v.
University of Pangasinan.
84
See National Shipyards and Steel Corporation v.
See Manila Terminal Company, Inc. v. CIR.
82
CIR.
/
advancement of the employer's interest and avoid serious loss which the employer would
not for the purpose of defeating or otherwise suffer;
circumventing the rights of the employees (c) In the event of abnormal pressure of work
under special laws or under valid agreements, due to special circumstances, where the
this Court will uphold such exercise. employer cannot ordinarily be expected to
resort to other measures;
The new work schedule fully complies with (d) To prevent loss or damage to perishable
the daily work schedule of eight hours without goods;
violating the Labor Code. (e) Where the nature of the work requires
continuous operations and the stoppage of

work may result in irreparable injury or loss to
With the new work schedule, the employees the employer; and
are now given a one-hour undisturbed lunch (f) Under other circumstances analogous or
break, the employees can freely and similar to the foregoing as determined by the
effectively use this hour not only for eating but Secretary of Labor and Employment.
also for their rest and comfort which are

conducive to more efficiency and better
performance in their work. Since the ARTICLE 93. COMPENSATION FOR REST DAY,
employees are no longer required to work SUNDAY, OR HOLIDAY WORK.
during this one-hour break, there is no more (a) Where an employee is made or permitted to
work on his scheduled rest day, he shall be paid
need for them to be compensated for this
an additional compensation of at least thirty
period.85 percent (30%) of his regular wage. An employee
shall be entitled to such additional
compensation for work performed on Sunday
D. Rest Periods and Holidays only when it is his established rest day.

(b) When the nature of the work of the employee
Articles 91-94, Labor Code is such that he has no regular workdays and no
regular rest days can be scheduled, he shall be
ARTICLE 91. RIGHT TO WEEKLY REST DAY. paid an additional compensation of at least
(a) It shall be the duty of every employer, thirty percent (30%) of his regular wage for work
whether operating for profit or not, to provide performed on Sundays and holidays.
each of his employees a rest period of not less
than twenty-four (24) consecutive hours after (c) Work performed on any special holiday shall
every six (6) consecutive normal work days. be paid an additional compensation of at least
thirty percent (30%) of the regular wage of the
(b) The employer shall determine and schedule employee. Where such holiday work falls on the
the weekly rest day of his employees subject to employee's scheduled rest day, he shall be
collective bargaining agreement and to such entitled to an additional compensation of at
rules and regulations as the Secretary of Labor least fifty per cent (50%) of his regular wage.
and Employment may provide. However, the
employer shall respect the preference of (d) Where the collective bargaining agreement
employees as to their weekly rest day when or other applicable employment contract
such preference is based on religious grounds. stipulates the payment of a higher premium pay
than that prescribed under this Article, the
employer shall pay such higher rate.
ARTICLE 92. WHEN EMPLOYER MAY REQUIRE
WORK ON A REST DAY.
The employer may require his employees to ARTICLE 94. RIGHT TO HOLIDAY PAY.
work on any day: (a) Every worker shall be paid his regular daily
(a) In case of actual or impending emergencies wage during regular holidays, except in retail
caused by serious accident, fire, flood, typhoon, and service establishments regularly employing
earthquake, epidemic or other disaster or less than ten (10) workers;
calamity to prevent loss of life and property, or (b) The employer may require an employee to
imminent danger to public safety; work on any holiday but such employee shall be
(b) In cases of urgent work to be performed on paid a compensation equivalent to twice his
the machinery, equipment, or installation, to regular rate; and
(c) As used in this Article, "holiday" includes:
New Year's Day, Maundy Thursday, Good Friday,
85
See Sime Darby Pilipinas v. NLRC.
/
the ninth of April, the first of May, the twelfth of Omnibus Rules: Book III, Rules III-IV
June, the fourth of July, the thirtieth of
November, the twenty-fifth and thirtieth of Weekly Rest Periods
December and the day designated by law for
holding a general election. SECTION 1. GENERAL STATEMENT ON
COVERAGE.
This Rule shall apply to all employers whether
operating for profit or not, including public
Executive Order 203 (1987), as modified by
utilities operated by private persons.
RA 9849
REGULAR HOLIDAY
SECTION 2. BUSINESS ON
New Year’s Day January 1 SUNDAYS/HOLIDAYS.
All establishments and enterprises may operate
Maundy Thursday Movable date or open for business on Sundays and holidays
provided that the employees are given the
Good Friday Movable date weekly rest day and the benefits as provided in
this Rule.
Eidul Fitr Movable Date

Eidul Adha86 Movable Date X X X

Araw ng Kagitingan April 9
(Bataan and SECTION 4. PREFERENCE OF EMPLOYEE.
Corregidor Day) The preference of the employee as to his weekly
day of rest shall be respected by the employer if
Labor Day May 1 the same is based on religious grounds. The
employee shall make known his preference to
Independence Day June 12 the employer in writing at least seven (7) days
before the desired effectivity of the initial rest
National Heroes Day Last Monday of day so preferred.
August*
Where, however, the choice of the employee as
Bonifacio Day November 30 to his rest day based on religious grounds will
inevitably result in serious prejudice or
Christmas Day December 25 obstruction to the operations of the undertaking
and the employer cannot normally be expected
Rizal Day December 30 to resort to other remedial measures, the
employer may so schedule the weekly rest day
of his choice for at least two (2) days in a
NATIONAL SPECIAL DAYS month.
Ninoy Aquino Day August 21

SECTION 5. SCHEDULE OF REST DAY.
All Saints Day November 1
(a) Where the weekly rest is given to all
employees simultaneously, the employer shall
Last Day of the Year December 31
make known such rest period by means of a
written notice posted conspicuously in the work
place at least one week before it becomes
effective.

(b) Where the rest period is not granted to all

employees simultaneously and collectively, the
employer shall make known to the employees
their respective schedules of weekly rest
through written notices posted conspicuously in
86
Eid ul-Fitr is the first day following the 30-day the work place at least one week before they
fasting period of Ramadan. Eid ul-Adha is a 10th become effective.
day of the month of Hajj or Islamic Pilgrimage to
Mecca when Muslims pay homage to Abraham's
supreme sacrifice signifying obedience to God.
/
SECTION 6. WHEN WORK ON REST DAY rest days which are considered paid-off days or
AUTHORIZED. holidays by agreement or practice subsisting
X X X upon the effectivity of the Code.cralaw

No employee shall be required against his will to
work on his scheduled rest day except under SECTION 9. RELATION TO AGREEMENTS.
circumstances provided in this Section: Nothing herein shall prevent the employer and
Provided, However, that where an employee his employees or their representatives in
volunteers to work on his rest day under other entering into any agreement with terms more
circumstances, he shall express such desire in favorable to the employees than those provided
writing, subject to the provisions of Section 7 herein, or be used to diminish any benefit
hereof regarding additional compensation. granted to the employees under existing laws,
agreements, and voluntary employer practices.

SECTION 7. COMPENSATION ON REST
DAY/SUNDAY/WORK DAY. Holidays with Pay

(a) Except those employees referred to under SECTION 1. COVERAGE.
Section 2, Rule I, Book Three, an employee who This rule shall apply to all employees except:
is made or permitted to work on his scheduled (a) Those of the government and any of the
rest day shall be paid with an additional political subdivision, including
compensation of at least 30% of his regular government-owned and controlled corporation;
wage. An employee shall be entitled to such (b) Those of retail and service establishments
additional compensation for work performed on regularly employing less than ten (10) workers;
a Sunday only when it is his established rest (c) Domestic helpers and persons in the
day. personal service of another;
(d) Managerial employees as defined in Book
(b) Where the nature of the work of the Three of the Code;
employee is such that he has no regular work (e) Field personnel and other employees whose
days and no regular rest days can be scheduled, time and performance is unsupervised by the
he shall be paid an additional compensation of employer including those who are engaged on
at least 30% of his regular wage for work task or contract basis, purely commission basis,
performed on Sundays and holidays. or those who are paid a fixed amount for
performing work irrespective of the time
(c) Work performed on any special holiday shall consumed in the performance thereof.
be paid with an additional compensation of at
least 30% of the regular wage of the employees.
Where such holiday work falls on the
SECTION 2. STATUS OF EMPLOYEES PAID BY
employee's scheduled rest day, he shall be
THE MONTH.
entitled to additional compensation of at least
Employees who are uniformly paid by the
50% of his regular wage.
month, irrespective of the number of working

days therein, with a salary of not less than the
(d) The payment of additional compensation for
statutory or established minimum wage shall be
work performed on regular holiday shall be
paid for all days in the month whether worked or
governed by Rule IV, Book Three, of these
not.cralaw For this purpose, the monthly
regulations.
minimum wage shall not be less than the

statutory minimum wage multiplied by 365 days
(e) Where the collective bargaining agreement
divided by twelve.
or other applicable employment contract
stipulates the payment of a higher premium pay
than that prescribed under this Section, the
SECTION 3. HOLIDAY PAY.
employer shall pay such higher rate.
Every employer shall pay his employees their
regular daily wage for any worked regular
holidays.
SECTION 8. PAID-OFF DAYS.
Nothing in this Rule shall justify an employer in As used in the rule, the term 'regular holiday'
reducing the compensation of his employees shall exclusively refer to: New Year's Day,
for the unworked Sundays, holidays, or other Maundy Thursday, Good Friday, the ninth of
/
April, the first of May, the twelfth of June, the (c) Where the day immediately preceding the
last Sunday of August, the thirtieth of holiday is a non-working day in the
November, the twenty-fifth and thirtieth of establishment or the scheduled rest day of the
December. Nationwide special days shall employee, he shall not be deemed to be on
include the first of November and the last day of leave of absence on that day, in which case he
December. shall be entitled to the holiday pay if he worked
on the day immediately preceding the
As used in this Rule legal or regular holiday and non-working day or rest day.
special holiday shall now be referred to as
'regular holiday' and 'special day', respectively.
SECTION 7. TEMPORARY OR PERIODIC

SHUTDOWN AND TEMPORARY CESSATION OF
SECTION 4. COMPENSATION FOR HOLIDAY WORK.
WORK. (a) In cases of temporary or periodic shutdown
Any employee who is permitted or suffered to and temporary cessation of work of an
work on any regular holiday, not exceeding eight establishment, as when a yearly inventory or
(8) hours, shall be paid at least two hundred when the repair or cleaning of machineries and
percent (200%) of his regular daily wage. If the equipment is undertaken, the regular holidays
holiday work falls on the scheduled rest day of falling within the period shall be compensated
the employee, he shall be entitled to an in accordance with this Rule.
additional premium pay of at least 30% of his
regular holiday rate of 200% based on his (b) The regular holiday during the cessation of
regular wage rate. operation of an enterprise due to business
reverses as authorized by the Secretary of Labor
and Employment may not be paid by the
SECTION 5. OVERTIME PAY FOR HOLIDAY employer.
WORK.

For work performed in excess of eight hours on
a regular holiday, an employee shall be paid an SECTION 8. HOLIDAY PAY OF CERTAIN
additional compensation for the overtime work EMPLOYEES.
equivalent to his rate for the first eight hours on (a) Private school teachers, including faculty
such holiday work plus at least 30% thereof. members of colleges and universities, may not
be paid for the regular holidays during
Where the regular holiday work exceeding eight semestral vacations. They shall, however, be
hours falls on the scheduled rest day of the paid for the regular holidays during Christmas
employee, he shall be paid an additional vacation;
compensation for the overtime work equivalent
to his regular holiday-rest day for the first 8 (b) Where a covered employee, is paid by results
hours plus 30% thereof. The regular holiday rest or output, such as payment on piece work, his
day rate of an employee shall consist of 200% holiday pay shall not be less than his average
of his regular daily wage rate plus 30% thereof. daily earnings for the last seven (7) actual
working days preceding the regular holiday;
Provided, However, that in no case shall the
SECTION 6. ABSENCES. holiday pay be less than the applicable statutory
(a) All covered employees shall be entitled to minimum wage rate.
the benefit provided herein when they are on
leave of absence with pay. Employees who are (c) Seasonal workers may not be paid the
on leave of absence without pay on the day required holiday pay during off-season when
immediately preceding a regular holiday may they are not at work.
not be paid the required holiday pay if he has
not worked on such regular holiday. (d) Workers who have no regular working days
shall be entitled to the benefits provided in this
(b) Employees shall grant the same percentage Rule.
of the holiday pay as the benefit granted by

competent authority in the form of employee's
compensation or social security payment, SECTION 9. REGULAR HOLIDAY FALLING ON
whichever is higher, if they are not reporting for REST DAYS OR SUNDAYS.
work while on such benefits. (a) A regular holiday falling on the employee's
rest day shall be compensated accordingly.
/
(b) Where a regular holiday falls on a Sunday, Q: Who is covered by the holiday pay law?
the following day shall be considered a special A: This holiday pay benefit applies to all
holiday for purposes of the Labor Code, unless employees except:
said day is also a regular holiday. (1) Those of the government and any of
the political subdivision, including

government-owned and controlled
SECTION 10. SUCCESSIVE REGULAR corporation;
HOLIDAYS. (2) Those of retail and service
Where there are two (2) successive regular
establishments regularly employing
holidays, like Holy Thursday and Good Friday, an
employee may not be paid for both holidays if
less than ten (10) workers;
he absents himself from work on the day (3) Domestic helpers and persons in the
immediately preceding the first holiday, unless personal service of another;
he works on the first holiday, in which case he is (4) Managerial employees as defined in
entitled to his holiday pay on the second Book Three of the Code;
holiday. (5) Officers or members of a managerial
staff; and
(6) Field personnel and other employees
SECTION 11. RELATION TO AGREEMENTS.
Nothing in this Rule shall justify an employer in whose time and performance is
withdrawing or reducing any benefits, unsupervised by the employer
supplements or payments for unworked including those who are engaged on
holidays as provided in existing individual or task or contract basis, purely
collective agreement or employer practice or commission basis, or those who are
policy. paid a fixed amount for performing
work irrespective of the time
Q: How much is rest day pay? consumed in the performance thereof.
A: It depends.
Q: What is the rule on Muslim holidays?
If rest day pay: A: Specifically for the Muslim areas87, P.D. No.
Regular daily rate x 130% 1083, in its Book V, Title I, recognizes the three
Muslim holidays, namely:
If rest day pay with overtime: (1) Amun Jadid (New Year) which fails on the
Regular hourly rate x 130% x 130% first day of the lunar month of Muharram;
(2) Mauli-un-Nabi (Birthday of the Prophet
If rest day pay with overtime and night Muhammad) which falls on the twelfth day of
differential: the third lunar month of Rabi-ul-Awwal; and
Regular hourly rate x 130% x 130% x 110% (3) Lailatul Isra Mi Rai (Noctume Journey and
Ascension of the Prophet Muhammad) which
Q: What is holiday day pay? falls on the twenty-seventh day of the seventh
A: Holiday pay is a one-day pay given by law lunar month of Rajab.
to an employee even if he does not work on a
regular holiday. Eid ul-Fitr and Eid-ud Adha have been added
into the list of legal holidays that are observed
Every employee covered by the holiday pay nationally, not only in the Muslim areas.
rule is entitled to the minimum wage rate
(daily basic wage and COLA). This means that Considering that all private corporations,
the employee is entitled to at least 100% of offices, agencies and entities or
his/her minimum wage rate even if he/she did 87
These official Muslim holidays are officially
not report for work, provided he/she is present
observed in the provinces of Basilan, Lanao de!
or is on leave of absence with pay on the work Norte, Lanao del Sur, Maguindanao, North
day immediately preceding the holiday. Cotahato, Sultan Kudatat, Sulu, Ta'wi-tawi,
Zamboanga del Norte arid Zamboanga del Sur and
Work performed on a legal holiday merits at in the cities of Cotabato, lligan, Marawi, Pagadian
least twice (200%) the daily wage rate of the and Zamboanga, and in such other Muslim
employee. provinces and cities as may he created.

/
establishments operating within the If double holiday pay with overtime pay:
designated Muslim provinces and cities are Regular hourly rate x 300% x 130%
required to observe Muslim holidays, both
Muslims and Christians working within the If double holiday pay with overtime and night
Muslim areas may not report for work on the differential:
days designated by law as Muslim holidays Regular hourly rate x 300% x 130% x 110%
and still be paid their regular rate. There
should be no distinction between Muslims If double holiday pay and rest day:
and non-Muslims as regards payment of Regular daily rate x 300% x 130%
benefits for Muslim holidays.88
If double holiday pay and rest day with
Muslim employees working outside of the overtime:
Muslim provinces and cities shall be excused Regular hourly rate x 300% x 130% x 130%
from reporting for work during the observance
of the Muslim holidays as recognized by law, If double holiday pay and rest day with
without diminution of salary or wages during overtime and night-shift differential:
the period. Regular hourly rate x 300% x 130% x 130% x
110%
Q: How do you compute holiday pay?
A: Special holiday pay rates
Regular holiday pay rates
If worked special holiday pay:
If unworked regular holiday pay: Regular daily rate x 130%
Regular daily rate x 100%
If special holiday pay with overtime pay:
If worked regular holiday pay: Regular hourly rate x 130% x 130%
If special holiday pay with overtime and night
If regular holiday pay with overtime pay: differential:
Regular hourly rate x 200% x 130% Regular hourly rate x 130% x 130% x 110%

If regular holiday pay with overtime and night If special holiday pay and rest day:
differential: Regular daily rate x 150%
Regular hourly rate x 200% x 130% x 110%
If special holiday pay and rest day with
If regular holiday pay and rest day: overtime:
Regular hourly rate x 200% x 130% Regular hourly rate x 150% x 130%

If regular holiday pay and rest day with If special holiday pay and rest day with
overtime: overtime and night-shift differential:
Regular hourly rate x 200% x 130% x 130% Regular hourly rate x 150% x 130% x 110%

If regular holiday pay and rest day with Q: Is a monthly paid employee entitled to
overtime and night-shift differential: holiday pay?
Regular hourly rate x 200% x 130% x 130% x A: Yes. The Labor Code is clear that
110% monthly-paid employees are not excluded
from the benefits of holiday pay.89
Double holiday pay rates
If unworked double holiday pay:

If worked double holiday pay:
See Insular Bank of Asia and America Employees

89
See San Miguel Corporation v. CA.

88
Union (IBAAEU) v. Inciong.
/
Q: Is a monthly-paid employee, receiving a when a regular class day is cancelled on
fixed monthly compensation, entitled to an account of a special public holiday and class
additional pay aside from his usual holiday hours are held on another working day to
pay, whenever a regular holiday falls on a make up for time lost in the school calendar.
Sunday?
A: No. There is no provision of law requiring Otherwise stated, the faculty member,
any employer to make such adjustments in although forced to take a rest, does not earn
the monthly salary rate set by him to take what he should earn on that day. Be it noted
account of legal holidays falling on Sundays in that when a special public holiday is declared,
a given year, or, contrary to the legal the faculty member paid by the hour is
provisions bearing on the point, otherwise to deprived of expected income, and it does not
reckon a year at more than 365 days. As matter that the school calendar is extended in
earlier mentioned, what the law requires of view of the days or hours lost, for their income
employers opting to pay by the month is to that could be earned from other sources is
assure that "the monthly minimum wage shall lost during the extended days.91
not be less than the statutory minimum wage
multiplied by 365 days divided by twelve," and
to pay that salary "for all days in the month
E. Service Incentive Leave
whether worked or not," and "irrespective of
the number of working days therein." That
salary is due and payable regardless of the Article 95, Labor Code
declaration of any special holiday in the entire ARTICLE 95. RIGHT TO SERVICE INCENTIVE
country or a particular place therein, or any LEAVE.
fortuitous cause precluding work on any (a) Every employee who has rendered at least
particular day or days (such as transportation one year of service shall be entitled to a yearly
strikes, riots or typhoons or other natural service incentive leave of five days with pay.
calamities), or cause not imputable to the
worker.90 (b) This provision shall not apply to those who
are already enjoying the benefit herein provided,
those enjoying vacation leave with pay of at
Q: What is the divisor used to compute
least five days and those employed in
holiday pay? establishments regularly employing less than
A: The divisor used to compute a holiday pay ten employees or in establishments exempted
should be the same divisor for computing from granting this benefit by the Secretary of
overtime rate, or sick/vacation cash value. Labor and Employment after considering the
viability or financial condition of such
Q: What is the rule for successive regular establishment.
holidays?
A: Where there are two successive regular (c) The grant of benefit in excess of that
provided herein shall not be made a subject of
holidays, like Holy Thursday and Good Friday,
arbitration or any court or administrative action.
an employee may not be paid for both
holidays if he absents himself from work on
the day immediately preceding the first
holiday, unless he works on the first holiday, in Omnibus Rules: Book III, Rule V
which case, he is entitled to his holiday pay SECTION 1. COVERAGE.
on-the second holiday. This rule shall apply to all employees except:
Q: Is a faculty member who according to their (a) Those of the government and any of its
contract is paid by lecture hour entitled to political subdivisions, including
unworked holiday pay? government-owned and controlled corporations;
A: Yes. The declared purpose of the holiday (b) Domestic helpers and persons in the
pay which is the prevention of diminution of personal service of another;
the monthly income of the employees on (c) Managerial employees as defined in Book
account of work interruptions is defeated Three of this Code;
See Wellington Investment and Manufacturing

90
Corporation v. Trajano. 91
See Jose Rizal College v. NLRC.
/
(d) Field personnel and other employees whose with pay. Leave with pay means an employee
performance is unsupervised by the employer gets paid despite absence from work.
including those who are engaged on task or
contract basis, purely commission basis, or The phrase “one year of service" means
those who are paid a fixed amount for service within 12 months, whether continuous
performing work irrespective of the time or broken, reckoned from the date the
consumed in the performance thereof; employee started working. The period
(e) Those who are already enjoying the benefit includes authorized absences, unworked
herein provided; weekly rest days, and paid regular holidays. If
(f) Those enjoying vacation leave with pay of at
through individual or collective bargaining,
least five days; and
(g) Those employed in establishments regularly company practice or policy, the period of
employing less than ten employees. working days is less than 12 months, said
period shall be considered as one year for the
purpose of determining the entitlement to the
SECTION 2. RIGHT TO SERVICE INCENTIVE service incentive leave.
LEAVE.
Every employee who has rendered at least one The service incentive leave shall be
year of service shall be entitled to a yearly commutable to its money equivalent if not
service incentive leave of five days with pay. used or exhausted at the end of the year.

SECTION 3. DEFINITION OF CERTAIN TERMS. Q: Who are not entitled to service incentive
The term "at least one-year service" shall mean leave?
service for not less than 12 months, whether A: (1) Those of the government and any of its
continuous or broken reckoned from the date political subdivisions, including
the employee started working, including government-owned and controlled
authorized absences and paid regular holidays corporations;
unless the working days in the establishment as (2) Domestic helpers and persons in the
a matter of practice or policy, or that provided in personal service of another;
the employment contract is less than 12 (3) Managerial employees as defined in Book
months, in which case said period shall be
Three of this Code;
considered as one year.
(4) Field personnel and other employees
whose performance is unsupervised by the
SECTION 4. ACCRUAL OF BENEFIT. employer including those who are engaged on
Entitlement to the benefit provided in this Rule task or contract basis, purely commission
shall start December 16, 1975, the date the basis, or those who are paid a fixed amount
amendatory provision of the Code took effect. for performing work irrespective of the time
consumed in the performance thereof92;
(5) Those who are already enjoying the benefit
SECTION 5. TREATMENT OF BENEFIT.
herein provided;
The service incentive leave shall be
(6) Those enjoying vacation leave with pay of
commutable to its money equivalent if not used
or exhausted at the end of the year. at least five days; and
(7) Those employed in establishments
regularly employing less than ten employees.
SECTION 6. RELATION TO AGREEMENTS.
Nothing in the Rule shall justify an employer Q: What is the basis for computation of SIL?
from withdrawing or reducing any benefits, A: The basis of conversion shall be the salary
supplements or payments as provided in rate at the date of commutation. The use and
existing individual or collective agreements or commutation of the service incentive leave
employer's practices or policies.
benefit may be on a pro-rata basis.
Q: What is the right to service incentive
leave? Q: Are all employees entitled to sick leave
A: Every covered employee who has rendered and vacation leave?
at least one year of service shall be entitled to
a yearly service incentive leave of five days
See Cebu Institute of Technology v. Ople; Auto
92
Bus Transport Systems v. Bautista.

/
A: While the five-day service incentive leave is
G. Miscellaneous
mandatory because it is legally required,
vacation and sick leave are voluntary. Their
grant in a private enterprise results from the Department Order No. 118-12, Rules and
employer's discretionary policy or from Regulations Regarding Employment and
bargaining with the employees or their Working Conditions of Drivers and
representative. Conductors in the Public Utility Bus Transport
Industry
Sick leave benefits, like other economic
benefits stipulated in a CBA are intended as Q: What is the coverage?
replacements for income which an employee A: This Rules shall apply to all public utility
will not earn while on leave. Leave benefits are bus owners (Rule I, Sec. 1, DO 118-12, Series
non-contributory, in the sense that the of 2012).
employees have no monetary contribution to
the creation of the benefits. By their nature, Q: What is the employment agreement for
upon agreement of the parties, they are drivers and conductors?
intended to alleviate the economic condition A: There shall be in writing between the public
of the workers. utility bus owner/operator and the public
utility bus driver and/or conductor, which shall
The purpose of vacation leave is to afford to a include the following terms:
laborer a chance to get a much needed rest to (1) Driver or conductor’s full name, date of
replenish his worn out energies and acquire birth or age, address, civil status, and SSS ID
new vitality to enable him to efficiently no.;
perform his duties and not merely to give him (2) Public utility bus owner’s operator’s name
additional salary or bounty. This privilege and address;
must be demanded in its opportune time and (3) Place where and date when the
if an employee allows the years to go by in employment agreement is entered ito;
silence, he waives it. It becomes a mere (4) Amount of the driver’s or conductor’s fixed
concession or act of grace of the employer. wage and formula used for calculating the
performance based compensation in
accordance with Rule III (Compensation), as
provided hereunder;
F. Employees Paid by Results
(5) Hours of work;
(6) Wages and wage-related benefits such as
See discussion in earlier sections. overtime pay, holiday pay, premium pay, 13th
month pay and leaves;
(7) Social security and welfare benefits;
(8) Separation or retirement pay; and
(9) Other benefits under existing laws (Rule II,
Sec. 1, DO 118-12, Series of 2012).

/
Q: What minimum benefits are public bus provided by law. Their employment can only
drivers and conductors entitled to? be terminated for just and authorized causes
pursuant to the provisions of the Labor Code,
as amended (Rule II, Sec. 4, DO 118-12, Series
of 2012).

In all cases of termination of employment, the
standards of due process laid down under the
Labor Code, as amended, and settled
jurisprudence on the matter, must be
observed (Rule II, Sec. 5, DO 118-12, Series of
2012).

Q: Are drivers and conductors entitled to the
right of self-organization and collective
bargaining?
A: Yes. Drivers and conductors shall have the
right to form, join, or assist in the formation of
a labor organization, association, or
cooperatives of their own choice for purposes
for collective bargaining or for mutual aid or
protection (Rule II, Sec. 6, DO 118-12, Series of
2012).

Q: How are drivers and conductors
compensated?
A: Bus owners and operators shall adopt a
mutually-agreed upon “part-fixed,
part-performance” based compensation for
their bus drivers and conductors (Rule III, Sec.
1, DO 118-12, Series of 2012).

(Rule II, Sec. 2, DO 118-12, Series of 2012).

Q: What are the normal hours of work of
drivers and conductors?
A: The normal hours of work of a driver and
conductor shall not exceed 8 hours a day.
(Rule III, Sec. 2, DO 118-12, Series of 2012).
If the driver/conductor is required to work
overtime, the maximum hours of work shall DO 118-12, Series of 2012 also provides that:
not exceed 12 hours in any 24-hour period, ● The bus owners/operators shall adopt,
subject to overriding safety and operational implement, and promote occupational
conditions of the public utility bus. safety and health programs consistent
with the existing laws and policies
Drivers and conductors shall be entitled to (Rule IV, Sec. 1, DO 118-12, Series of
rest periods of at least 1 hour, exclusive of 2012).
meal breaks, within a 12-hour shift (Rule II, ● Without prejudice to established
Sec. 3, DO 118-12, Series of 2012). company policy, CBA or other
applicable employment agreements,
Q: Are drivers and conductors entitled to the all bus drivers and conductors shall be
right of security of tenure? entitled to coverage for social welfare
A: Yes. Drivers and conductors shall enjoy benefits such as Pag-Ibig Fund,
security of tenure in their employment as PhilHealth, Employee’s Compensation
/
Law, Social Security Law, and other
WORKING CONDITIONS FOR SPECIAL
applicable laws. Further, the cost of
GROUPS OF EMPLOYEES
health services for the illness and
injuries suffered by the driver and
conductor shall be covered by the A. WOMEN
mandatory social welfare programs
under the laws (Rule V, Sec. 1, DO
118-12, Series of 2012). Articles 130 and 132-136, Labor Code
ART. 130. FACILITIES FOR WOMEN.
The Secretary of Labor and Employment shall
Labor Advisory No. 4, Series of 2016, establish standards that will ensure the safety
Working Conditions in Movie and Television and health of women employees. In appropriate
Industry cases, he shall, by regulations, require any
employer to:
Q: What is the coverage? (a) Provide seats proper for women and permit
them to use such seats when they are free from
A: Pursuant to the provisions of Articles 5 and
work and during working hours, provided they
168 of the Labor Code, as amended, this can perform their duties in this position without
Advisory is hereby issued to ensure detriment to efficiency;
compliance with Labor Standards and (b) To establish separate toilet rooms and
Occupational Safety and Health Standards lavatories for men and women and provide at
and better working conditions for all workers least a dressing room for women;
and/or talents, including children or elderly, in (c) To establish a nursery in a workplace for the
the Movie and Television Industry. benefit of the women employees therein; and
(d) To determine appropriate minimum age and
Q: What are the working conditions that must other standards for retirement or termination in
special occupations such as those of flight
be observed in the industry?
attendants and the like.
A:

ART. 132. FAMILY PLANNING SERVICES;
INCENTIVES FOR FAMILY PLANNING.
(a) Establishments which are required by law to
maintain a clinic or infirmary shall provide free
family planning services to their employees
which shall include, but not be limited to, the
application or use of contraceptive pills and
intrauterine devices.

(b) In coordination with other agencies of the
government engaged in the promotion of family
planning, the Department of Labor and
Employment shall develop and prescribe
incentive bonus schemes to encourage family
planning among female workers in any
establishment or enterprise.

/
ART. 133. DISCRIMINATION PROHIBITED. ART. 136. CLASSIFICATION OF CERTAIN
It shall be unlawful for any employer to WOMEN WORKERS.
discriminate against any woman employee with Any woman who is permitted or suffered to
respect to terms and conditions of employment work, with or without compensation, in any
solely on account of her sex. night club, cocktail lounge, massage clinic, bar
or similar establishments under the effective
The following are acts of discrimination: control or supervision of the employer for a
(a) Payment of a lesser compensation, including substantial period of time as determined by the
wage, salary or other form of remuneration and Secretary of Labor and Employment, shall be
fringe benefits, to a female employee as against considered as an employee of such
a male employee, for work of equal value; and establishment for purposes of labor and social
(b) Favoring a male employee over a female legislation.
employee with respect to promotion, training

opportunities, study and scholarship grants

solely on account of their sexes.
Omnibus Rules: Book III, Rule XII, Sections 1,
Criminal liability for the willful commission of 4-14
any unlawful act as provided in this article or any SECTION 1. GENERAL STATEMENT ON
violation of the rules and regulations issued COVERAGE.
pursuant to Section 2 hereof 95 shall be This Rule shall apply to all employers, whether
penalized as provided in Articles 288 and 289 of operating for profit or not, including educational,
this Code: Provided, That the institution of any religious and charitable institutions, except to
criminal action under this provision shall not bar the Government and to government-owned or
the aggrieved employee from filing an entirely controlled corporations and to employers of
separate and distinct action for money claims, household helpers and persons in their personal
which may include claims for damages and service insofar as such workers are concerned.
other affirmative reliefs. The actions hereby
authorized shall proceed independently of each
other. X X X

SECTION 5. NIGHT WORK OF WOMEN
ART. 134. STIPULATION AGAINST MARRIAGE. EMPLOYEES.
It shall be unlawful for an employer to require as Any woman employed in any industrial
a condition of employment or continuation of undertaking may be allowed to work beyond
employment that a woman employee shall not 10:00 o'clock at night, or beyond 12:00 o'clock
get married, or to stipulate expressly or tacitly midnight in the case of women employees of
that upon getting married, a woman employee commercial or non-industrial enterprises, in any
shall be deemed resigned or separated, or to of the following cases:
actually dismiss, discharge, discriminate or (a) In cases of actual or impending
otherwise prejudice a woman employee merely emergencies caused by serious accident, fire,
by reason of her marriage. flood, typhoon, earthquakes, epidemic or other
disaster or calamity, to prevent loss of life or
property or in cases of force majeure or
ART. 135. PROHIBITED ACTS. imminent danger to public safety;
It shall be unlawful for any employer: (b) In case of urgent work to be performed on
(1) To deny any woman employee the benefits machineries, equipment or installation, to avoid
provided for in this Chapter or to discharge any serious loss which the employer would
woman employed by him for the purpose of otherwise suffer;
preventing her from enjoying any of the benefits (c) Where the work is necessary to prevent
provided under this Code; serious loss of perishable goods;
(2) To discharge such woman on account of her (d) Where the woman employee holds a
pregnancy, or while on leave or in confinement responsible position of a managerial or
due to her pregnancy; technical nature, or where the woman employee
(3) To discharge or refuse the admission of such has been engaged to provide health and welfare
woman upon returning to her work for fear that services;
she may again be pregnant. (e) Where the nature of the work requires the
manual skill and dexterity of women and the
same cannot be performed with equal efficiency
by male workers or where the employment of
/
women is the established practice in the said date. For purposes of determining the
enterprises concerned on the date these Rules entitlement of a woman employee to the
become effective; and maternity leave benefits as delimited herein,
(f) Where the women employees are immediate the total number of her deliveries, complete
members of the family operating the abortions, or miscarriages after said date shall
establishment or undertaking. be considered regardless of the identity or
number of employers she has had at the time
The Secretary of Labor and Employment shall of such determination, provided that she
from time to time determine cases analogous to enjoyed the minimum benefits therefor as
the foregoing for purposes of this Section. provided in these regulations.

SECTION 6. AGRICULTURAL WORK. SECTION 11. FAMILY PLANNING SERVICES.
No woman, regardless of age, shall be Employers who habitually employ more than
permitted or suffered to work, with or without two hundred (200) workers in any locality shall
compensation, in any agricultural undertaking provide free family-planning services to their
at night time unless she is given a rest period employees and their spouses which shall
of not less than nine (9) consecutive hours, include but not limited to, the application or
subject to the provisions of Section 5 of this use of contraceptives.
Rule.
Subject to the approval of the Secretary of

Labor and Employment, the Bureau of Women
SECTION 7. MATERNITY LEAVE BENEFITS. and Young Workers shall, within thirty (30)
Every employer shall grant to a pregnant days from the effective date of these Rules,
woman employee who has rendered an prescribe the minimum requirements of family
aggregate service of at least six (6) months for planning services to be given by employers to
the last twelve (12) months immediately their employees.
preceding the expected date of delivery, or the

complete abortion or miscarriage, maternity
leave of at least two (2) weeks before and four SECTION 12. RELATION TO AGREEMENTS.
(4) weeks after the delivery, miscarriage or Nothing herein shall prevent the employer and
abortion, with full pay based on her regular or his employees or their representatives from
average weekly wages. entering into any agreement with terms more
favorable to the employees than those

provided herein, or be used to diminish any
SECTION 8. ACCREDITATION OF LEAVE benefit granted to the employees under
CREDITS. existing laws, agreements, and voluntary
Where the pregnant woman employee fails to employer practices.
avail of the two-week pre-delivery leave, or any

portion thereof, the same shall be added to her
post-delivery leave with pay. SECTION 13. PROHIBITED ACTS.
It shall be unlawful for any employer:

(a) To discharge any woman employed by him
SECTION 9. PAYMENT OF EXTENDED for the purpose of preventing such woman
MATERNITY LEAVE. from enjoying the maternity leave, facilities
Where the pregnant woman employee fails to and other benefits provided under the Code;
avail of the two-week pre-delivery leave, or any (b) To discharge such woman employee on
portion thereof, the same shall be added to her account of her pregnancy, or while on leave or
post-delivery leave with pay. in confinement due to her pregnancy;
(c) To discharge or refuse the admission of

such woman upon returning to her work for
SECTION 10. LIMITATION ON LEAVE fear that she may be pregnant;
BENEFITS. (d) To discharge any woman or child or any
The maternity benefits provided herein shall be other employee for having filed a complaint or
paid by an employer only for the first four (4) having testified or being about to testify under
deliveries, miscarriages, and/or complete the Code; and
abortions of the employee from March 13, (e) To require as a condition for a continuation
1973, regardless of the number of employees of employment that a woman employee shall
and deliveries, complete abortions or not get married or to stipulate expressly or
miscarriages the woman employee had before tacitly that upon getting married, a woman
/
employee shall be deemed resigned or ● Decent work involves opportunities for
separated, or to actually dismiss, discharge, work that are productive and fairly
discriminate or otherwise prejudice a woman remunerative as family living wage,
employee merely by reason of her marriage. security in the workplace, and social
protection for families, better

prospects for personal development
SECTION 14. FACILITIES FOR WOMEN and social integration, freedom for
EMPLOYEES. people to express their concerns
Subject to the approval of the Secretary of organize, participate in the decisions
Labor and Employment, the Bureau of Women
that affect their lives, and equality of
and Young Workers shall, within thirty (30) days
from the effective date of these Rules, opportunity and treatment for all
determine in an appropriate issuance the work women and men.
situations for which the facilities enumerated in
Article 131 of the Code shall be provided, as Q: What are the prohibited acts?
well as the appropriate minimum age and other A: (1) To deny any woman employee the
standards for retirement or termination of benefits provided for in this Chapter or to
employment in special occupations in which discharge any woman employed by him for
women are employed. the purpose of preventing her from enjoying
any of the benefits provided under this Code;
Q: What are the rights of women workers? (2) To discharge such woman on account of
First, women workers have a right to her pregnancy, or while on leave or in
facilities93, such as: confinement due to her pregnancy;
(1) To be provided seats proper for (3) To discharge or refuse the admission of
women and permit them to use such such woman upon returning to her work for
seats when they are free from work fear that she may again be pregnant;
and during working hours, provided (4) To discharge any woman employed by him
they can perform their duties in this for the purpose of preventing such woman
position without detriment to efficiency; from enjoying the maternity leave, facilities
(2) To establish toilet rooms and and other benefits provided under the Code;
lavatories for men and women and (5) To discharge any woman or child or any
provide at least a dressing room for other employee for having filed a complaint or
women; having testified or being about to testify under
(3) To establish a nursery in a workplace the Code; and
for the benefit of the women (6) To require as a condition for a
employees; and continuation of employment that a woman
(4) To determine appropriate minimum employee shall not get married or to stipulate
age and other standards for retirement expressly or tacitly that upon getting married,
or termination in special occupations a woman employee shall be deemed resigned
such as those of flight attendants and or separated, or to actually dismiss, discharge,
the like. discriminate or otherwise prejudice a woman
employee merely by reason of her marriage.
Second, women workers have a right to
access to family planning services.94 DISCRIMINATION
● It is unlawful for any employer to
Third, women workers have a right to be discriminate against any women
protected against discrimination.95 employee with respect to terms and
conditions of employment based
Fourth, women workers have the right to solely on account of her sex.97
decent work.96
Q: What are the acts of discrimination?98
A:
93
See Art. 130, Labor Code. (1) Payment of a less compensation, including
94
See Aart. 132, Labor Code. wage, salary, or other form of remuneration
95
See Art. 133, Labor Code. See also Sec. 35, RA
9710. 97
See Art. 133, Labor Code.
96
See Sec. 22, RA 9710. 98
/
and fringe benefits to a female employee as TWO FACTORS (to justify BFOQ):
against a male employee for work of equal (1) That the employment qualification is
value; reasonably related to the essential operation
(2) Favoring a male employee over a female of the job involved; and
employee with respect to promotion, training, (2) that there is a factual basis for believing
opportunities, study, and scholarship grants that all or substantially all persons meeting
solely on account of their sexes; the qualification would be unable to properly
● Person guilty of committing these acts perform the duties of the job.
are criminally liable under Arts.
288-289 of the Labor Code; and In Star Paper v. Simbol, the Court struck down
● That the institution of any criminal the no-spouse employment policies since it
action under this provision shall not violates the marital status provisions, and it
bar the aggrieved employee from filing discriminates against all spouses of present
an entirely separate and distinct action employees without regard to the actual effect
for money claims, which may include on the individual’s qualifications or work
claims for damages and other performance. The Court also found that the
affirmative reliefs. The actions hereby no-spouse employment policy is invalid for
authorized shall proceed the failure of the employer to present any
independently of each other. evidence of business necessity other than the
general perception that spouses in the same
Q: What are the two theories of employment workplace might adversely affect the
discrimination? business. The rule now is that, unless the
A: (1) Disparate treatment, wherein it must be employer can prove that the reasonable
proven that the policy is discriminatory on its demands of the business require a distinction
face; and based on marital status and there is no better
(2) Disparate impact, where it must be proven policy available that would accomplish the
that a facially neutral policy has a business purpose, an employer may not
disproportionate effect on a particular class.99 discriminate against an employee based on
the identity of the employee’s spouse.
BONA FIDE OCCUPATIONAL QUALIFICATION
(BFOQ) Q: What is the prohibition on stipulation
● One basic objective of labor law is to against marriage?100
ensure equal work opportunities A: It shall be unlawful for an employer:
regardless of sex, race, or creed. (1) To require as a condition of
● GENERAL RULE: Article 133 prohibits employment or continuation of
any form of discrimination against a employment that a woman employee
women on account of being her sex. shall not get married;
Being a woman should not be a basis (2) To stipulate expressly or tacitly that
for disqualification from a work upon getting married, a woman
opportunity or employee shall be deemed resigned or
a particular term or condition of separated; or
employment. (3) To actually dismiss, discharge,
EXCEPTION: BFOQ, where the job itself discriminate or otherwise prejudice a
necessarily requires a particular woman employee merely by reason of
qualification, then the job applicant or her marriage.
worker who does not possess·it may
be disqualified on that basis. This will Q: Is a stipulation against marriage a valid
not be unlawful discrimination ground to terminate an employee?
● To justify the selective employment or A: In PT&T v. Co, the stipulation is not valid. It
entitlement policy, the employer must was declared here that the company policy of
prove a compelling business necessity not accepting or considering as disqualified
for which no· alternative exists other from work any woman worker who contracts
than discriminatory practice. marriage runs afoul of the test of, and the
See Star Paper Corp. v. Simbol.

99 100
/
right against, discrimination afforded all political, social, and cultural life of women and
women workers by our labor laws and by no men.
less than the Constitution.101
The State condemns discrimination against
In Duncan Association of Detailman v. Glaxo women in all its forms and pursues by all
Welcome, the stipulation is valid. The appropriate means and without delay the policy
dismissal based on this stipulation in the of eliminating discrimination against women in
employment contract is a valid exercise of keeping with the Convention on the Elimination
management prerogative. The prohibition of All Forms of Discrimination Against Women
(CEDAW) and other international instruments
against personal or martial relationships with
consistent with Philippine law. The State shall
employees was held reasonable under the accord women the rights, protection, and
circumstances because relationships of that opportunities available to every member of
nature might compromise the interests of the society. The State affirms women's rights as
company. In laying down the assailed human rights and shall intensify its efforts to
company policy, the employer only aims to fulfill its duties under international and
protect its interests against the possibility domestic law to recognize, respect, protect,
that a competitor company will gain access to fulfill, and promote all human rights and
its secrets and procedures. fundamental freedoms of women, especially
marginalized women, in the economic, social,
political, cultural, and other fields without
It is clear that the company does not impose
distinction or discrimination on account of
an absolute prohibition against relationships class, age, sex, gender, language, ethnicity,
between its employees and those of religion, ideology, disability, education, and
competitor companies. Its employees are free status.
to cultivate relationships with and marry
persons of their own choosing. What the The State shall provide the necessary
company merely seeks to avoid is a conflict of mechanisms to enforce women's rights and
interest between the employee and the adopt and undertake all legal measures
company that may arise out of such necessary to foster and promote the equal
relationships. opportunity for women to participate in and
contribute to the development of the political,

economic, social, and cultural realms.

RA 9710 (Magna Carta of Women), Secs. 1-3, The State, in ensuring the full integration of
4(b) & (k), 22, 35, and 41 women's concerns in the mainstream of
SECTION 1. SHORT TITLE. development, shall provide ample opportunities
This Act shall be known as "The Magna Carta to enhance and develop their skills, acquire
of Women.” productive employment and contribute to their
families and communities to the fullest of their
capabilities.
SECTION 2. DECLARATION OF POLICY.
Recognizing that the economic, political, and In pursuance of this policy, the State reaffirms
sociocultural realities affect women's current the right of women in all sectors to participate
condition, the State affirms the role of women in in policy formulation. planning, organization,
nation building and ensures the substantive implementation, management, monitoring, and
equality of women and men. It shall promote evaluation of all programs, projects, and
empowerment of women and pursue equal services. It shall support policies, researches,
opportunities for women and men and ensure technology, and training programs and other
equal access to resources and to development support services such as financing, production,
results and outcome. Further, the State realizes and marketing to encourage active participation
that equality of men and women entails the of women in national development.
abolition of the unequal structures and
practices that perpetuate discrimination and
inequality. To realize this, the State shall SECTION 3. PRINCIPLES OF HUMAN RIGHTS
endeavor to develop plans, policies, programs, OF WOMEN.
measures, and mechanisms to address Human rights are universal and inalienable. All
discrimination and inequality in the economic, people in the world are entitled to them. The
universality of human rights is encompassed in
the words of Article 1 of the Universal
101
See PT&T v. NLRC.
/
Declaration of Human Rights, which states that It includes any act or omission, including by
all human beings are free and equal in dignity law; policy, administrative measure, or practice,
and rights. that directly or indirectly excludes or restricts
women in the recognition and promotion of
Human rights are indivisible. Human rights are their rights and their access to and enjoyment
inherent to the dignity of every human being of opportunities, benefits, or privileges.
whether they relate to civil, cultural, economic,
political, or social issues. A measure or practice of general application is
discrimination against women if it fails to
Human rights are interdependent and provide for mechanisms to offset or address
interrelated. The fulfillment of one right often sex or gender-based disadvantages or
depends, wholly or in part, upon the fulfillment limitations of women, as a result of which
of others. women are denied or restricted in the
recognition and protection of their rights and in
All individuals are equal as human beings by their access to and enjoyment of opportunities,
virtue of the inherent dignity of each human benefits, or privileges; or women, more than
person. No one, therefore, should suffer men, are shown to have suffered the greater
discrimination on the basis of ethnicity, gender, adverse effects of those measures or
age, language, sexual orientation, race, color, practices.
religion, political, or other opinion, national,
social, or geographical origin, disability, Provided, finally, That discrimination
property, birth, or other status as established compounded by or intersecting with other
by human rights standards. grounds, status, or condition, such as ethnicity,
age, poverty, or religion shall be considered
All people have the right to participate in and discrimination against women under this Act.
access information relating to the
decisionmaking processes that affect their X X X
lives and well-being. Rights-based approaches
require a high degree of participation by (k) "Violence Against Women" refers to any act
communities, civil society, minorities, women, of gender-based violence that results in, or is
young people, indigenous peoples, and other likely to result in, physical, sexual, or
identified groups. psychological harm or suffering to women,
including threats of such acts, coercion, or
States and other duty-bearers are answerable arbitrary deprivation of liberty, whether
for the observance of human rights. They have occurring in public or in private life. It shall be
to comply with the legal norms and standards understood to encompass, but not limited to,
enshrined in international human rights the following:
instruments in accordance with the Philippine
Constitution. Where they fail to do so, (1) Physical, sexual, psychological, and
aggrieved rights-holders are entitled to institute economic violence occurring in the family,
proceedings for appropriate redress before a including battering, sexual abuse of female
competent court or other adjudicator in children in the household, dowry-related
accordance with the rules and procedures violence, marital rape, and other traditional
provided by law. practices harmful to women, non-spousal
violence, and violence related to exploitation;

SECTION 4. DEFINITIONS. (2) Physical, sexual, and psychological violence
occurring within the general community,
X X X including rape, sexual abuse, sexual
harassment, and intimidation at work, in
(b) "Discrimination Against Women" refers to educational institutions and elsewhere,
any gender-based distinction, exclusion, or trafficking in women, and prostitution; and
restriction which has the effect or purpose of
impairing or nullifying the recognition, (3) Physical, sexual, and psychological violence
enjoyment, or exercise by women, irrespective perpetrated or condoned by the State, wherever
of their marital status. on a basis of equality of it occurs.
men and women, of human rights and
fundamental freedoms in the political, It also includes acts of violence against women
economic, social, cultural, civil, or any other as defused in Republic Acts No. 9208 and
field. 9262.
/

subject to sanctions under pertinent laws and
SECTION 22. RIGHT TO DECENT WORK. regulations.
The State shall progressively realize and

ensure decent work standards for women that
involve the creation of jobs of acceptable SECTION 41. PENALTIES.
quality in conditions of freedom, equity, Public and private entities and individuals
security, and human dignity. found to have committed discrimination
against women shall be subject to the
(a) Decent work involves opportunities for sanctions provided in Section 41 hereof.
work that are productive and fairly Violations of other rights of women shall be
remunerative as family living wage, security in subject to sanctions under pertinent laws and
the workplace, and social protection for regulations.
families, better prospects for personal

development and social integration, freedom

for people to express their concerns organize,
participate in the decisions that affect their RA 7877 (Anti-Sexual Harassment Act of
lives, and equality of opportunity and 1995)
treatment for all women and men. SECTION 1. Title. — This Act shall be known as
the "Anti-Sexual Harassment Act of 1995."
(b) The State shall further ensure:
(1) Support services and gears to protect them SECTION 2. Declaration of Policy. — The State
from occupational and health hazards taking shall value the dignity of every individual,
into account women's maternal functions; enhance the development of its human
(2) Support services that will enable women to resources, guarantee full respect for human
balance their family obligations and work rights, and uphold the dignity of workers,
responsibilities including, but not limited to, employees, applicants for employment,
the establishment of day care centers and students or those undergoing training,
breastfeeding stations at the workplace, and instruction or education. Towards this end, all
providing maternity leave pursuant to the forms of sexual harassment in the employment,
Labor Code and other pertinent laws; education or training environment are hereby
(3) Membership in unions regardless of status declared unlawful.
of employment and place of employment; and
(4) Respect for the observance of indigenous SECTION 3. Work, Education or Training-related
peoples' cultural practices even in the Sexual Harassment Defined. — Work, education
workplace. or training-related sexual harassment is
committed by an employer, employee, manager,
(c) In recognition of the temporary nature of supervisor, agent of the employer, teacher,
overseas work, the State shall exert all efforts instructor, professor, coach, trainor, or any other
to address the causes of out-migration by person who, having authority, influence or moral
developing local employment and other ascendancy over another in a work or training or
economic opportunities for women and by education environment, demands, requests or
introducing measures to curb violence and otherwise requires any sexual favor from the
forced and involuntary displacement of local other, regardless of whether the demand, request
women. The State shall ensure the protection or requirement for submission is accepted by the
and promotion of the rights and welfare of object of said act.
migrant women regardless of their work
status, and protect them against (a) In a work-related or employment
discrimination in wages, conditions of work, environment, sexual harassment is committed
and employment opportunities in host when:
countries. (1) The sexual favor is made as a condition in the
hiring or in the employment, re-employment or
continued employment of said individual, or in
SECTION 35. DISCRIMINATION AGAINST granting said individual favorable compensation,
WOMEN IS PROHIBITED. terms, conditions, promotions, or privileges; or
Public and private entities and individuals the refusal to grant the sexual favor results in
found to have committed discrimination limiting, segregating or classifying the employee
against women shall be subject to the which in any way would discriminate, deprive or
sanctions provided in Section 41 hereof. diminish employment opportunities or otherwise
Violations of other rights of women shall be adversely affect said employee;
/
(2) The above acts would impair the employee's The committee shall conduct meetings, as the
rights or privileges under existing labor laws ; or case may be, with officers and employees,
(3) The above acts would result in an teachers, instructors, professors, coaches,
intimidating, hostile, or offensive environment for trainors and students or trainees to increase
the employee. understanding and prevent incidents of sexual
harassment. It shall also conduct the
(b) In an education or training environment, investigation of alleged cases constituting
sexual harassment is committed: sexual harassment.
(1) Against one who is under the care, custody or
supervision of the offender; In the case of a work-related environment, the
(2) Against one whose education, training, committee shall be composed of at least one(1)
apprenticeship or tutorship is entrusted to the representative each from the management, the
offender; union, if any, the employees from the
(3) When the sexual favor is made a condition to supervisory rank, and from the rank and file
the giving of a passing grade, or the granting of employees.
honors and scholarships or the payment of a
stipend, allowance or other benefits , privileges, In the case of the educational or training
or considerations; or institution, the committee shall be composed of
(4) When the sexual advances result in an at least one (1) representative from the
intimidating, hostile or offensive environment for administration, the trainors, teachers,
the student, trainee or apprentice. instructors, professors or coaches and students
or trainees, as the case may be.
Any person who directs or induces another to
commit any act of sexual harassment as herein The employer or head of office, educational or
defined, or who cooperates in the commission training institution shall disseminate or post a
thereof by another without which it would not copy of this Act for the information of all
have been committed, shall also be held liable concerned.
under this Act.
SECTION 5. Liability of the Employer, Head of
SECTION 4. Duty of the Employer or Head of Office, Educational or Training Institution. —
Office in a Work-related, Education or Trainings The employer or head of office, educational or
Environment. — It shall be the duty of the training institution shall be solidarily liable for
employer or the head of the work-related, damages arising from the acts of sexual
educational or training environment or harassment committed in the employment,
institution, to prevent or deter the commission education or training environment if the
of acts of sexual harassment and to provide the employer or head of office, educational or
procedures for the resolution, settlement or training institution is informed of such acts by
prosecution of acts of sexual harassment. the offended party and no immediate action is
Towards this end, the employer or head of office taken thereon.
shall:
(a) Promulgate appropriate rules and regulations SECTION 6. Independent Action for Damages.
in consultation with and jointly approved by the — Nothing in this Act shall preclude the victim of
employees or students or trainees, through their work, education or training-related sexual
duly designated representatives, prescribing the harassment from instituting a separate and
procedure for the investigation of sexual independent action for damages and other
harassment cases and the administrative affirmative relief.
sanctions therefor.
SECTION 7. Penalties. — Any person who
Administrative sanctions shall not be a bar to violates the provisions of this Act shall, upon
prosecution in the proper courts for unlawful conviction, be penalized by imprisonment of not
acts of sexual harassment. less than one (1) month nor more than six (6)
months, or a fine of not less than Ten thousand
The said rules and regulations issued pursuant pesos (P10,000) nor more than Twenty
to this subsection (a) shall include, among thousand pesos (P20,000), or both such fine
others, guidelines on proper decorum in the and imprisonment at the discretion of the court.
workplace and educational or training Any action arising from the violation of the
institutions. provisions of this Act shall prescribe in three (3)
years.
(b) Create a committee on decorum and
investigation of cases on sexual harassment.
/
Q: What is sexual harassment?
(2) One whose whose education, training,
A: Sec. 3 defines work, education, or training
apprenticeship or tutorship is entrusted to
related sexual harassment as committed by an
the offender.
employer, employee, manager, supervisor,

agent of the employer, teacher, instructor,
Education or Training-related sexual
professor, coach, trainor, or any other person
harassment is committed when:
who, having authority, influence or moral
(1) When the sexual favor is made a
ascendancy over another in a work or training
condition to giving a passing grade, or
or education environment, demands, requests
granting of honors and scholarships, or the
or otherwise requires any sexual favor from
payment of a stipend, allowance or other
the other, regardless of whether the demand,
benefits, privileges, or considerations; or
request or requirement for submission is
(2) When the sexual advances result in an
accepted by the object.102
intimidating, hostile or offensive

environment for the student, trainee or
Q: How is sexual harassment committed?
apprentice.
A: The law distinguishes between
work-related and education/training-related
sexual harassment.103 Q: Is it necessary that the demand, request,
or requirement of a sexual favor be
WORK-RELATED SEXUAL HARASSMENT
articulated in a categorical oral or written
Work-related sexual harassment is statement?
committed when: A: No. It is NOT necessary that the demand,
request or requirement of a sexual favor be
(1) The sexual favor is made as a condition articulated in a categorical oral or written
in the hiring or in the employment, statement. It may be discerned, with equal
re-employment or continued employment of certitude, from the acts of the offender.
said individual, or in granting said individual Holding and squeezing Domingo's shoulders,
favorable compensation, terms of running his fingers across her neck and
conditions, promotions, or privileges; or the tickling her ear, having inappropriate
refusal to grant the sexual favor results in conversations with her, giving her money
limiting, segregating or classifying the allegedly for school expenses with a promise
employee which in any way would of future privileges, and making statements
discriminate, deprive ordiminish with unmistakable sexual overtones — all
employment opportunities or otherwise these acts of Rayala resound with deafening
adversely affect said employee; clarity the unspoken request for a sexual
favor.104
(2) The above acts would impair the
employee’s rights or privileges under Likewise, contrary to Rayala's claim, it is NOT
existing labor laws; or essential that the demand, request or
requirement be made as a condition for
(3) The above acts would result in an continued employment or for promotion to a
intimidating, hostile, or offensive higher position. It is enough that the acts
environment for the employee. result in creating an intimidating, hostile or
offensive environment for the employee.
EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT Q: What are the other acts punishable?
A: These are:
Education or Training-related sexual (1) Any person who directs or induces
harassment is committed against: another to commit any act of sexual
(1) One who is under the care, custody or harassment; or
supervision of the offender; or (2) Any person who cooperates in the
commission thereof by another
102
See Sec. 3, RA 7877.
103
See Sec. 3, RA 7877. 104
See Domingo v. Rayala.
/
without which it would not have been understanding and prevent incidents of sexual
committed.105 harassment. It shall also conduct the
investigation of alleged cases constituting
Q: Can a case of sexual harassment prosper sexual harassment.
between co-employees? ● In the case of a work-related
A: No. What the law contemplates is a environment, the committee shall be
situation when the offender is one who, composed of at least one (1)
having authority, influence or moral representative each from the
ascendancy over another. management, the union, if any, the
employees from the supervisory rank,
Q: Is sexual harassment exclusive to women and from the rank and file employees.
victims? ● In the case of the educational or
A: No. The law does not distinguish. Both men training institution, the committee
and women can be victims of sexual shall be composed of at least one (1)
harassments, provided the elements concur. representative from the
administration, the trainors,
Q: What is the duty of the employer of head instructors, professors or coaches
of office in a work or education/training and students or trainees, as the case
environment?106 may be.
A: It shall be the duty of the employer or the ● The employer or head of office,
head of the work-related, educational or educational or training institution shall
training environment or institution, to prevent disseminate or post a copy of the law
or deter the commission of acts of sexual for the information of all concerned.
harassment and to provide the procedures for
the resolution, settlement or prosecution of Q: What happens if the employer or head of
acts of sexual harassment. the office did not undertake any action
despite his/her knowledge of the sexual
Towards this end, the employer or head of harassment?
office shall: A: The employer or head of office, educational
(a) Promulgate appropriate rules and or training institution shall be solidarily liable
regulations in consultation with and joint1y for damages arising from the acts of sexual
approved by the employees or students or harassment committed in the employment,
trainees, through their duly designated education or training environment if the
representatives, prescribing the procedure for employer or head of office, educational or
the investigation of sexual harassment cases training institution is informed of such acts by
and the administrative sanctions therefor. the offended party and no immediate action is
● Administrative sanctions shall not be a taken.107
bar to prosecution in the proper
courts for unlawful acts of sexual Q: Can an offended party seek redress by
harassment. taking an independent action?
● The said rules and regulations issued A: Yes. According to the law, nothing in the
pursuant to this subsection (a) shall law shall preclude the victim of work,
include, among others, guidelines on education or training-related sexual
proper decorum in the workplace and harassment from instituting a separate and
educational or training institutions. independent action for damages and other
affirmative relief.108
(b) Create a committee on decorum and
investigation of cases on sexual harassment. Q: What are the penalties for offenders?
The committee shall conduct meetings, as the A: Any person who violates the provisions of
case may be, with officers and employees, this Act shall, upon conviction, be penalized
teachers, instructors, professors, coaches, by imprisonment of not less than one (1)
trainors, and students or trainees to increase month nor more than six (6) months, or a fine
105
See Sec. 3, RA 7877. 107
106
See Sec. 4, RA 7877. 108
/
of not less than Ten thousand pesos exchange for remuneration, agrees to perform
(P10,000) nor more than Twenty thousand specified services for another person, whether
pesos (P20,000), or both such fine and natural or juridical, and whether private or
imprisonment at the discretion of the court. public, who exercises fundamental control over
the work, regardless of the term or duration of
Any action arising from the violation of the agreement: Provided, That for the purposes of
provisions of this Act shall prescribe in three this law, a person who is detailed to an entity
(3) years.109 under a subcontracting or secondment
agreement shall be considered an employee;
Note: (c) Employer refers to a person who exercises
In Libres v. NLRC, Republic Act No. 7877 was control over an employee: Provided, That for the
not yet in effect at the time of the occurrence purpose of this Act, the status or conditions of
of the act complained of. It was still being the latter’s employment or engagement shall be
deliberated upon in Congress when Libres’ disregarded;
case was decided by the Labor Arbiter. As a
rule, laws shall have no retroactive effect (d) Gender refers to a set of socially ascribed
unless otherwise provided, or except in a characteristics, norms, roles, attitudes, values
and expectations identifying the social behavior
criminal case when their application will favor
of men and women, and the relations between
the accused. The Court ruled that, the Labor
them;
Arbiter have to rely on the MEC report and the
common connotation of sexual harassment (e) Gender-based online sexual harassment
as it is generally understood by the public. refers to an online conduct targeted at a
Faced with the same predicament, the NLRC particular person that causes or likely to cause
had to agree with the Labor Arbiter. In so another mental, emotional or psychological
doing, the NLRC did not commit any abuse of distress, and fear of personal safety, sexual
discretion in affirming the decision of the harassment acts including unwanted sexual
remarks and comments, threats, uploading or
Labor Arbiter.
sharing of one’s photos without consent, video
and audio recordings, cyberstalking and online
identity theft;
RA 11313 (Safe Spaces Act)
Section 1. Short Title. -This Act shall be known (f) Gender identity and/or expression refers to
as the "Safe Spaces Act". the personal sense of identity as characterized,
among others, by manner of clothing,
Section 2. Declaration of Policies. - It is the inclinations, and behavior in relation to
policy of the State to value the dignity of every masculine or feminine conventions. A person
human person and guarantee full respect for may have a male or female identity with
human rights. It is likewise the policy of the physiological characteristics of the opposite sex
State to recognize the role of women in in which case this person is considered
nation-building and ensure the fundamental transgender:
equality before the law of women and men. The
State also recognizes that both men and women (g) Public spaces refer to streets and alleys,
must have equality, security and safety not only public parks, schools, buildings, malls, bars,
in private, but also on the streets, public spaces, restaurants, transportation terminals, public
online, workplaces and educational and training markets, spaces used as evacuation centers,
institutions. government offices, public utility vehicles as
well as private vehicles covered by app-based
Section 3. Definition of Terms. -As used in this transport network services and other
Act: recreational spaces such as, but not limited to,
cinema halls, theaters and spas; and
(a) Catcalling refers to unwanted remarks
directed towards a person, commonly done in (h) Stalking refers to conduct directed at a
the form of wolf-whistling and misogynistic, person involving the repeated visual or physical
transphobic, homophobic, and sexist slurs; proximity, non-consensual communication, or a
combination thereof that cause or will likely
(b) Employee refers to a person, who in cause a person to fear for one’s own safety or
the safety of others, or to suffer emotional
distress.
109
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ARTICLE I shall designate at least one (1) anti-sexual
GENDER-BASED STREETS AND PUBLIC harassment officer to receive gender-based
SPACES sexual harassment complaints. Security guards
in these places may be deputized to apprehend
SEXUAL HARASSMENT perpetrators caught in flagrante delicto and are
required to immediately coordinate with local
Section 4. Gender-Based Streets and Public authorities.
Spaces Sexual Harassment. -The crimes of
gender-based streets and public spaces sexual Section 6. Gender-Based Sexual Harassment in
harassment are committed through any Public Utility Vehicles. - In addition to the
unwanted and uninvited sexual actions or penalties in this Act, the Land Transportation
remarks against any person regardless of the Office (LTO) may cancel the license of
motive for committing such action or remarks. perpetrators found to have committed acts
constituting sexual harassment in public utility
Gender-based streets and public spaces sexual vehicles, and the Land Transportation
harassment includes catcalling, wolf-whistling, Franchising and Regulatory Board (LTFRB) may
unwanted invitations, misogynistic, transphobic, suspend or revoke the franchise of
homophobic and sexist slurs, persistent transportation operators who commit
uninvited comments or gestures on a person’s gender-based streets and public spaces sexual
appearance, relentless requests for personal harassment acts. Gender-based sexual
details, statement of sexual comments and harassment in public utility vehicles (PUVs)
suggestions, public masturbation or flashing of where the perpetrator is the driver of the vehicle
private parts, groping, or any advances, whether shall also constitute a breach of contract of
verbal or physical, that is unwanted and has carriage, for the purpose of creating a
threatened one’s sense of personal space and presumption of negligence on the part of the
physical safety, and committed in public spaces owner or operator of the vehicle in the selection
such as alleys, roads, sidewalks and parks. Acts and supervision of employees and rendering the
constitutive of gender-based streets and public owner or operator solidarity liable for the
spaces sexual harassment are those performed offenses of the employee.
in buildings, schools, churches, restaurants,
malls, public washrooms, bars, internet shops, Section 7. Gender-Based Sexual Harassment in
public markets, transportation terminals or Streets and Public Spaces Committed by
public utility vehicles. Minors. - In case the offense is committed by a
minor, the Department of Social Welfare and
Section 5. Gender-Based Sexual Harassment in Development (DSWD) shall take necessary
Restaurants and Cafes, Bars and Clubs, Resorts disciplinary measures as provided for under
and Water Parks, Hotels and Casinos, Cinemas, Republic Act No. 9344, otherwise known as the
Malls, Buildings and Other Privately-Owned "Juvenile Justice and Welfare Act of 2006".
Places Open to the Public. - Restaurants, bars,
cinemas, malls, buildings and other Section 8. Duties of Local Government Units
privately-owned places open to the public shall (LGUs). - Local government units (LGUs) shall
adopt a zero-tolerance policy against bear primary responsibility in enforcing the
gender-based streets and public spaces sexual provisions under Article I of this Act. LGUs shall
harassment. These establishments are obliged have the following duties:
to provide assistance to victims of
gender-based sexual harassment by (a) Pass an ordinance which shall localize the
coordinating with local police authorities applicability of this Act within sixty (60) days of
immediately after gender-based sexual its effectivity;
harassment is reported, making CCTV footage
available when ordered by the court, and (b) Disseminate or post in conspicuous places a
providing a safe gender-sensitive environment copy of this Act and the corresponding
to encourage victims to report gender-based ordinance;
sexual harassment at the first instance.
(c) Provide measures to prevent gender-based
All restaurants, bars, cinemas and other places sexual harassment in educational institutions,
of recreation shall install in their business such as information campaigns and anti-sexual
establishments clearly-visible warning signs harassment seminars;
against gender-based public spaces sexual
harassment, including the anti-sexual (d) Discourage and impose fines on acts of
harassment hotline number in bold letters, and gender-based sexual harassment as defined in
/
this Act; second-time or third-time offender. The DILG
shall also ensure that all local government
(e) Create an anti-sexual harassment hotline; bodies expedite the receipt and processing of
and complaints by setting up an Anti-Sexual
Harassment Desk in all barangay and city halls
(f) Coordinate with the Department of the and to ensure the set-up of CCTVs in major
Interior and Local Government (DILG) on the roads, alleys and sidewalks in their respective
implementation of this Act. areas to aid in the filing of cases and gathering
of evidence. The DILG, the DSWD in coordination
Section 9. Role of the DILG. -The DILG shall with the Department of Health (DOH) and the
ensure the full implementation of this Act by: PCW shall coordinate if necessary to ensure
that victims are provided the proper
(a) Inspecting LGUs if they have disseminated or psychological counseling support services.
posted in conspicuous places a copy of this Act
and the corresponding ordinance; Section 11. Specific Acts and Penalties for
Gender-Based Sexual Harassment in Streets
(b) Conducting and disseminating surveys and and Public Spaces. -The following acts are
studies on best practices of LGUs in unlawful and shall be penalized as follows:
implementing this Act; and
(a) For acts such as cursing, wolf-whistling,
(c) Providing capacity-building and training catcalling, leering and intrusive gazing, taunting,
activities to build the capability of local pursing, unwanted invitations, misogynistic,
government officials to implement this Act in transphobic, homophobic, and sexist slurs,
coordination with the Philippine Commission on persistent unwanted comments on one’s
Women (PCW). the Local Government Academy appearance, relentless requests for one’s
(LGA) and the Development Academy of the personal details such as name, contact and
Philippines (DAP). social media details or destination, the use of
words, gestures or actions that ridicule on the
Section 10. Implementing Bodies for basis of sex, gender or sexual orientation,
Gender-Based Sexual Harassment in Streets identity and/or expression including sexist,
and Public Spaces. - The Metro Manila homophobic, and transphobic statements and
Development Authority (MMDA), the local units slurs, the persistent telling of sexual jokes, use of
of the Philippine National Police (PNP) for other sexual names, comments and demands, and any
provinces, and the Women and Children’s statement that has made an invasion on a
Protection Desk (WCPD) of the PNP shall have person’s personal space or threatens the
the authority to apprehend perpetrators and
person’s sense of personal safety –
enforce the law: Provided, That they have
undergone prior Gender Sensitivity Training (1) The first offense shall be punished by a fine
(GST). The PCW. DILG and Department of of One thousand pesos (₱1,000.00) and
Information and Communications Technology community service of twelve (12) hours
(DICT) shall be the national bodies responsible inclusive of attendance to a Gender Sensitivity
for overseeing the implementation of this Act Seminar to be conducted by the PNP in
and formulating policies that will ensure the coordination with the LGU and the PCW;
strict implementation of this Act.
(2) The second offense shall be punished by
For gender-based streets and public spaces arresto menor (6 to 10 days) or a fine of Three
sexual harassment, the MMDA and the local thousand pesos (₱3,000.00);
units of the PNP for the provinces shall deputize
its enforcers to be Anti-Sexual Harassment (3) The third offense shall be punished by
Enforcers (ASHE). They shall be deputized to arresto menor (11 to 30 days) and a fine of Ten
receive complaints on the street and thousand pesos (₱10,000.00).
immediately apprehend a perpetrator if caught
in flagrante delicto. The perpetrator shall be (b) For acts such as making offensive body
immediately brought to the nearest PNP station gestures at someone, and exposing private parts
to face charges of the offense committed. The for the sexual gratification of the perpetrator with
ASHE unit together with the Women’s and the effect of demeaning, harassing, threatening
Children’s Desk of PNP stations shall keep a or intimidating the offended party including
ledger of perpetrators who have committed acts flashing of private parts, public masturbation,
prohibited under this Act for purposes of groping, and similar lewd sexual actions –
determining if a perpetrator is a first-time,
/
(1) The first offense shall he punished by a fine unauthorized recording and sharing of any of
of Ten thousand pesos (₱10,000.00) and the victim’s photos, videos, or any information
community service of twelve (12) hours online, impersonating identities of victims online
inclusive of attendance to a Gender Sensitivity or posting lies about victims to harm their
Seminar, to be conducted by the PNP in reputation, or filing, false abuse reports to online
coordination with the LGU and the PCW; platforms to silence victims.
(2) The second offense shall be punished by Section 13. Implementing Bodies for
arresto menor (11 to 30 days) or a fine of Fifteen Gender-Based Online Sexual Harassment. -For
thousand pesos (₱15,000.00); gender-based online sexual harassment, the
PNP Anti-Cybercrime Group (PNPACG) as the
(3) The third offense shall be punished by National Operational Support Unit of the PNP is
arresto mayor (1 month and 1 day to 6 months) primarily responsible for the implementation of
and a fine of Twenty thousand pesos pertinent Philippine laws on cybercrime, shall
(₱20,000.00). receive complaints of gender-based online
sexual harassment and develop an online
(c) For acts such as stalking, and any of the acts mechanism for reporting real-time
mentioned in Section 11 paragraphs (a) and (b), gender-based online sexual harassment acts
when accompanied by touching, pinching or and apprehend perpetrators. The Cybercrime
brushing against the body of the offended Investigation and Coordinating Center (CICC) of
person; or any touching, pinching, or brushing the DICT shall also coordinate with the PNPACG
against the genitalia, face, arms, anus, groin, to prepare appropriate and effective measures
breasts, inner thighs, face, buttocks or any part to monitor and penalize gender-based online
of the victim’s body even when not accompanied sexual harassment.
by acts mentioned in Section 11 paragraphs (a)
and (b) – Section 14. Penalties for Gender-Based Online
Sexual Harassment. -The penalty of prision
(1) The first offense shall be punished by arresto correccional in its medium period or a fine of not
rnenor (11 to 30 days) or a line of Thirty less than One hundred thousand pesos
thousand pesos (₱30,000.00), provided that it (₱100,000.00) but not more than Five hundred
includes attendance in a Gender Sensitivity thousand pesos (₱500,000.00), or both, at the
Seminar, to be conducted by the PNP in discretion of the court shall be imposed upon
coordination with the LGU and the PCW; any person found guilty of any gender-based
online sexual harassment.
(2) The second offense shall be punished by
arresto mayor (1 month and 1 day to 6 months) If the perpetrator is a juridical person, its license
or a fine of Fifty thousand pesos (₱50,000.00); or franchise shall be automatically deemed
revoked, and the persons liable shall be the
(3) The third offense shall be punished by officers thereof, including the editor or reporter
arresto mayor in its maximum period or a fine of in the case of print media, and the station
One hundred thousand pesos (₱100,000.00). manager, editor and broadcaster in the case of
broadcast media. An alien who commits
ARTICLE II gender-based online sexual harassment shall be
GENDER-BASED ONLINE SEXUAL subject to deportation proceedings after serving
HARASSMENT sentence and payment of fines.
Section 12. Gender-Based Online Sexual Exemption to acts constitutive and penalized as
Harassment. Gender-based online sexual gender-based online sexual harassment are
harassment includes acts that use information authorized written orders of the court for any
and communications technology in terrorizing peace officer to use online records or any copy
and intimidating victims through physical, thereof as evidence in any civil, criminal
psychological, and emotional threats, unwanted investigation or trial of the crime: Provided, That
sexual misogynistic, transphobic, homophobic such written order shall only be issued or
and sexist remarks and comments online granted upon written application and the
whether publicly or through direct and private examination under oath or affirmation of the
messages, invasion of victim’s privacy through applicant and the witnesses may produce, and
cyberstalking and incessant messaging, upon showing that there are reasonable grounds
uploading and sharing without the consent of to believe that gender-based online sexual
the victim, any form of media that contains harassment has been committed or is about to
photos, voice, or video with sexual content, any be committed, and that the evidence to be
/
obtained is essential to the conviction of any effect on the conditions of an individual’s
person for, or to the solution or prevention of employment or education, job performance or
such crime. opportunities;
Any record, photo or video, or copy thereof of (b) A conduct of sexual nature and other
any person that is in violation of the preceding conduct-based on sex affecting the dignity of a
sections shall not be admissible in evidence in person, which is unwelcome, unreasonable, and
any judicial, quasi-judicial, legislative or offensive to the recipient, whether done verbally,
administrative hearing or investigation. physically or through the use of technology such
as text messaging or electronic mail or through
ARTICLE III any other forms of information and
QUALIFIED GENDER-BASED STREETS, PUBLIC communication systems;
SPACES AND ONLINE SEXUAL HARASSMENT
(c) A conduct that is unwelcome and pervasive
Section 15. Qualified Gender-Based Streets, and creates an intimidating, hostile or humiliating
Public Spaces and Online Sexual Harassment. environment for the recipient: Provided, That the
-The penalty next higher in degree will be crime of gender-based sexual harassment may
applied in the following cases: also be committed between peers and those
committed to a superior officer by a subordinate,
(a) If the act takes place in a common carrier or or to a teacher by a student, or to a trainer by a
PUV, including, but not limited to, jeepneys, taxis, trainee; and
tricycles, or app-based transport network
vehicle services, where the perpetrator is the (d) Information and communication system
driver of the vehicle and the offended party is a refers to a system for generating, sending,
passenger; receiving, storing or otherwise processing
electronic data messages or electronic
(b) If the offended party is a minor, a senior documents and includes the computer system or
citizen, or a person with disability (PWD), or a other similar devices by or in which data are
breastfeeding mother nursing her child; recorded or stored and any procedure related to
the recording or storage of electronic data
(c) If the offended party is diagnosed with a messages or electronic documents.
mental problem tending to impair consent;
Section 17. Duties of Employers. - Employers or
(d) If the perpetrator is a member of the other persons of authority, influence or moral
uniformed services, such as the PNP and the ascendancy in a workplace shall have the duty
Armed Forces of the Philippines (AFP), and the to prevent, deter, or punish the performance of
act was perpetrated while the perpetrator was in acts of gender-based sexual harassment in the
uniform; and workplace. Towards this end, the employer or
person of authority, influence or moral
(e) If the act takes place in the premises of a ascendancy shall:
government agency offering frontline services
to the public and the perpetrator is a (a) Disseminate or post in a conspicuous place
government employee. a copy of this Act to all persons in the
workplace;
ARTICLE IV
GENDER-BASED SEXUAL HARASSMENT IN (b) Provide measures to prevent gender-based
THE WORKPLACE sexual harassment in the workplace, such as
the conduct of anti-sexual harassment
Section 16. Gender-Based Sexual Harassment seminars;
in the Workplace. -The crime of gender-based
sexual harassment in the workplace includes (c) Create an independent internal mechanism
the following: or a committee on decorum and investigation to
investigate and address complaints of
(a) An act or series of acts involving any gender-based sexual harassment which shall:
unwelcome sexual advances, requests or
demand for sexual favors or any act of sexual (1) Adequately represent the management, the
nature, whether done verbally, physically or employees from the supervisory rank, the
through the use of technology such as text rank-and-file employees, and the union, if any;
messaging or electronic mail or through any
other forms of information and communication (2) Designate a woman as its head and not less
systems, that has or could have a detrimental
/
than half of its members should be women; section, shall upon conviction, be penalized with
a fine of not less than Five thousand pesos
(3) Be composed of members who should be (₱5,000.00) nor more than Ten thousand pesos
impartial and not connected or related to the (₱10,000.00).
alleged perpetrator;
Any person who violates subsection (b) of this
(4) Investigate and decide on the complaints section, shall upon conviction, be penalized with
within ten (10) days or less upon receipt thereof; a fine of not less than Ten thousand pesos
(₱10,000.00) nor more than Fifteen thousand
(5) Observe due process; pesos (₱15,000.00).
(6) Protect the complainant from retaliation; and Section 20. Routine Inspection. -The
Department of Labor and Employment (DOLE)
(7) Guarantee confidentiality to the greatest for the private sector and the Civil Service
extent possible; Commission (CSC) for the public sector shall
conduct yearly spontaneous inspections to
(d) Provide and disseminate, in consultation ensure compliance of employers and employees
with all persons in the workplace, a code of with their obligations under this Act.
conduct or workplace policy which shall:
ARTICLE V
(1) Expressly reiterate the prohibition on GENDER-BASED SEXUAL HARASSMENT IN
gender-based sexual harassment; EDUCATIONAL AND TRAINING INSTITUTIONS
(2) Describe the procedures of the internal Section 21. Gender-Based Sexual Harassment
mechanism created under Section 17(c) of this in Educational and Training Institutions.— All
Act; and schools, whether public or private, shall
designate an officer-in-charge to receive
(3) Set administrative penalties. complaints regarding violations of this Act, and
shall, ensure that the victims are provided with a
Section 18. Duties of Employees and
gender-sensitive environment that is both
Co-Workers. - Employees and co-workers shall
respectful to the victims’ needs and conducive
have the duty to:
to truth-telling.
(a) Refrain from committing acts of
Every school must adopt and publish grievance
gender-based sexual harassment;
procedures to facilitate the filing of complaints
by students and faculty members. Even if an
(b) Discourage the conduct of gander-based
individual does not want to file a complaint or
sexual harassment in the workplace;
does not request that the school take any action
(c) Provide emotional or social support to fellow on behalf of a student or faculty member and
employees, co-workers, colleagues or peers who school authorities have knowledge or
are victims of gender-based sexual harassment; reasonably know about a possible or impending
and act of gender-based sexual harassment or
sexual violence, the school should promptly
(d) Report acts of gender-based sexual investigate to determine the veracity of such
harassment witnessed in the workplace. information or knowledge and the
circumstances under which the act of
Section 19. Liability of Employers.— In addition gender-based sexual harassment or sexual
to liabilities for committing acts of violence were committed, and take appropriate
gender-based sexual harassment, employers steps to resolve the situation. If a school knows
may also be held responsible for: or reasonably should know about acts of
gender-based sexual harassment or sexual
(a) Non-implementation of their duties under violence being committed that creates a hostile
Section 17 of this Act, as provided in the penal environment, the school must take immediate
provisions; or action to eliminate the same acts, prevent their
recurrence, and address their effects.
(b) Not taking action on reported acts of
gender-based sexual harassment committed in Once a perpetrator is found guilty, the
the workplace. educational institution may reserve the right to
strip the diploma from the perpetrator or issue
Any person who violates subsection (a) of this an expulsion order.
/
The Committee on Decorum and Investigation gender-based sexual harassment, principals,
(CODI) of all educational institutions shall school heads, teachers, instructors, professors,
address gender-based sexual harassment and coaches, trainers, or any odier person who has
online sexual harassment in accordance with authority, influence or moral ascendancy over
the rules and procedures contained in their CODI another in an educational or training institution
manual. may also be held responsible for:
Section 22. Duties of School Heads. -School (a) Non-implementation of their duties under
heads shall have the following duties: Section 22 of this Act, as provided in the penal
provisions; or
(a) Disseminate or post a copy of this Act in a
conspicuous place in the educational institution; (b) Failure to act on reported acts of
gender-based sexual harassment committed in
(b) Provide measures to prevent gender-based the educational institution.
sexual harassment in educational institutions,
like information campaigns; Any person who violates subsection (a) of this
section, shall upon conviction, be penalized with
(c) Create an independent internal mechanism a fine of not less than Five thousand pesos
or a CODI to investigate and address complaints (₱5,000.00) nor more than Ten thousand pesos
of gender-based sexual harassment which shall: (₱10,000.00).
(1) Adequately represent the school Any person who violates subsection (b) of this
administration, the trainers, instructors, section, shall upon conviction, be penalized with
professors or coaches and students or trainees, a fine of not less than Ten thousand pesos
students and parents, as the case may be; (₱10,000.00) nor more than Fifteen thousand
pesos (₱15,000.00).
(2) Designate a woman as its head and not less
than half of its members should be women; Section 24. Liability of Students.— Minor
students who are found to have committed acts
(3) Ensure equal representation of persons of of gender-based sexual harassment shall only
diverse sexual orientation, identity and/or be held liable for administrative sanctions by the
expression, in the CODI as far as practicable; school as stated in their school handbook.
(4) Be composed of members who should be Section 25. Routine Inspection.— The
impartial and not connected or related to the Department of Education (DepEd), the
alleged perpetrator; Commission on Higher Education (CHED), and
the Technical Education and Skills Development
(5) Investigate and decide on complaints within Authority (TESDA) shall conduct regular
ten (10) days or less upon receipt, thereof; spontaneous inspections to ensure compliance
of school heads with their obligations under this
(6) Observe due process; Act.
(7) Protect the complainant from retaliation; and ARTICLE VI
COMMON PROVISIONS
(8) Guarantee confidentiality to the greatest
extent possible. Section 26. Confidentiality.— At any stage of the
investigation, prosecution and trial of an offense
(d) Provide and disseminate, in consultation under this Act, the rights of the victim and the
with all persons in the educational institution, a
accused who is a minor shall be recognized.
code of conduct or school policy which shall:
Section 27. Restraining Order.— Where
(1) Expressly reiterate the prohibition on
appropriate, the court, even before rendering a
gender-based sexual harassment; final decision, may issue an order directing the
perpetrator to stay away from the offended
(2) Prescribe the procedures of the internal
person at a distance specified by the court, or to
mechanism created under this Act; and
stay away from the residence, school, place of
employment, or any specified place frequented
(3) Set administrative penalties.
by the offended person.
Section 23. Liability of School Heads.— In
addition to liability for committing acts of Section 28. Remedies and Psychological
/
Counselling.— A victim of gender-based street, sexual harassment committed against them.
public spaces or online sexual harassment may School courses shall include age-appropriate
avail of appropriate remedies as provided for educational modules against gender-based
under the law as well as psychological streets, public spaces and online sexual
counselling services with the aid of the LGU and harassment which shall be developed by the
the DSWD, in coordination with the DOH and the DepEd, the CHED, the TESDA and the PCW.
PCW. Any fees to be charged in the course of a
victim’s availment of such remedies or Section 34. Safety Audits. - LGUs are required to
psychological counselling services shall be conduct safety audits every three (3) years to
borne by the perpetrator. assess the efficiency and effectivity of the
implementation of this Act within their
Section 29. Administrative Sanctions.— Above jurisdiction. Such audits shall be multisectoral
penalties are without prejudice to any and participatory, with consultations undertaken
administrative sanctions that may be imposed if with schools, police officers, and civil society
the perpetrator is a government employee. organizations.
Section 30. Imposition of Heavier Penalties.— Section 35. Appropriations.— Such amounts as
Nothing in this Act shall prevent LGUs from may be necessary for the implementation of this
coming up with ordinances that impose heavier Act shall be indicated under the annual General
penalties for the acts specified herein. Appropriations Act (GAA). National and local
government agencies shall be authorized to
Section 31. Exemptions.— Acts that are utilize their mandatory Gender and Development
legitimate expressions of indigenous culture (GAD) budget, as provided under Republic Act
and tradition, as well as breastfeeding in public No. 9710, otherwise known as "The Magna
shall not be penalized. Carta of Women" for this purpose. In addition,
LGUs may also use their mandatory twenty
ARTICLE VII percent (20%) allocation of them annual internal
FINAL PROVISIONS revenue allotments for local development
projects as provided under Section 287 of
Section 32. PNP Women and Children’s Desks.— Republic Act No. 7160, otherwise known as the
The women and children’s desks now existing in "Local Government Code of 1991".
all police stations shall act on and attend to all
complaints covered under this Act. They shall Section 36. Prescriptive Period.— Any action
coordinate with ASHE officers on the street, arising from the violation of any of the
security guards in privately-owned spaces open provisions of this Act shall prescribe as follows:
to the public, and anti-sexual harassment
officers in government and private offices or (a) Offenses committed under Section 11(a) of
schools in the enforcement of the provisions of this Act shall prescribe in one (1) year;
this Act.
(b) Offenses committed under Section 11(b) of
Section 33. Educational Modules and this Act shall prescribe in three (3) years;
Awareness Campaigns.— The PCW shall take
the lead in a national campaign for the (c) Offenses committed under Section 11(c) of
awareness of the law. The PCW shall work this Act shall prescribe in ten (10) years;
hand-in-hand with the DILG and duly accredited
women’s groups to ensure all LGUs participate (d) Offenses committed under Section 12 of this
in a sustained information campaign and the Act shall be imprescriptible; and
DICT to ensure an online campaign that reaches
a wide audience of Filipino internet-users. (e) Offenses committed under Sections 16 and
Campaign materials may include posters 21 of this Act shall prescribe in five (5) years.
condemning different forms of gender-based

sexual harassment, informing the public of
penalties for committing gender-based sexual
Q: How is it different from the old law?
harassment, and infographics of hotline A: The original law has a limited definition of
numbers of authorities. sexual harassment and who can be
considered the offender. Only persons in
All schools shall educate students from the authority could be charged as offenders.
elementary to tertiary level about the provisions There are no provisions for harassment by
of this Act and how they can report cases of subordinates or peers.
gender-based streets, public spaces and online
/
Sec. 4 states that: “The crimes of on one’s appearance, relentless requests for
gender-based streets and public spaces one’s personal details such as name, contact
sexual harassment are committed through and social media details or destination, the
any unwanted and uninvited sexual actions or use of words, gestures or actions that ridicule
remarks against any person regardless of the on the basis of sex, gender or sexual
motive for committing such action or orientation, identity and/or expression
remarks.”110 including sexist, homophobic, and
transphobic statements and slurs, the
Note: The new law does not supersede the persistent telling of sexual jokes, use of
original Anti-Sexual Harassment Act. If sexual names, comments and demands, and
someone’s offense qualifies under both the any statement that has made an invasion on a
Safe Spaces and Anti-Sexual Harassment person’s personal space or threatens the
acts, they can be charged for counts under person’s sense of personal safety –
both laws. Offenses can also intersect other (1) The first offense shall be punished by a fine
laws like the Anti-Violence Against Women of ₱1,000 and community service of 12 hours
and Children Act. inclusive of attendance to a Gender Sensitivity
Seminar to be conducted by the PNP in
Q: How is Gender-based Streets and Public coordination with the LGU and the PCW;
Spaces Sexual Harassment Committed? (2) The second offense shall be punished by
A: Gender-based streets and public spaces arresto menor (6 to 10 days) or a fine of
sexual harassment includes catcalling, ₱3,000;
wolf-whistling, unwanted invitations, (3) The third offense shall be punished by
misogynistic, transphobic, homophobic and arresto menor (11 to 30 days) and a fine of
sexist slurs, persistent uninvited comments or ₱10,000.
gestures on a person’s appearance, relentless
requests for personal details, statement of (b) For acts such as making offensive body
sexual comments and suggestions, public gestures at someone, and exposing private
masturbation or flashing of private parts, parts for the sexual gratification of the
groping, or any advances, whether verbal or perpetrator with the effect of demeaning,
physical, that is unwanted and has threatened harassing, threatening or intimidating the
one’s sense of personal space and physical offended party including flashing of private
safety, and committed in public spaces such parts, public masturbation, groping, and
as alleys, roads, sidewalks and parks. similar lewd sexual actions –
(1) The first offense shall he punished by a fine
Acts constitutive of gender-based streets and of ₱10,000 and community service of 12 hours
public spaces sexual harassment are those inclusive of attendance to a Gender Sensitivity
performed in buildings, schools, churches, Seminar, to be conducted by the PNP in
restaurants, malls, public washrooms, bars, coordination with the LGU and the PCW;
internet shops, public markets, transportation (2) The second offense shall be punished by
terminals or public utility vehicles.111 arresto menor (11 to 30 days) or a fine of
₱15,000;
Q: What are the penalties for Gender-based (3) The third offense shall be punished by
Streets and Public Spaces Sexual arresto mayor (1 month and 1 day to 6 months)
Harassment? and a fine of ₱20,000.
A: The following acts are unlawful and shall
be penalized as follows112: (c) For acts such as stalking, and any of the
acts mentioned in Section 11 paragraphs (a)
(a) For acts such as cursing, wolf-whistling, and (b), when accompanied by touching,
catcalling, leering and intrusive gazing, pinching or brushing against the body of the
taunting, pursing, unwanted invitations, offended person; or any touching, pinching, or
misogynistic, transphobic, homophobic, and brushing against the genitalia, face, arms,
sexist slurs, persistent unwanted comments anus, groin, breasts, inner thighs, face,
buttocks or any part of the victim’s body even
110
See Sec. 4, RA 11313. when not accompanied by acts mentioned in
111
See Sec. 4, RA 11313. Section 11 paragraphs (a) and (b) –
112
See Sec. 11, RA 11313.
/
(1) The first offense shall be punished by commits gender-based online sexual
arresto menor (11 to 30 days) or a line of harassment shall be subject to deportation
₱30,000, provided that it includes attendance proceedings after serving sentence and
in a Gender Sensitivity Seminar, to be payment of fines.
conducted by the PNP in coordination with the
LGU and the PCW; Exemption to acts constitutive and penalized
(2) The second offense shall be punished by as gender-based online sexual harassment
arresto mayor (1 month and 1 day to 6 months) are authorized written orders of the court for
or a fine of ₱50,000; any peace officer to use online records or any
(3) The third offense shall be punished by copy thereof as evidence in any civil, criminal
arresto mayor in its maximum period or a fine investigation or trial of the crime: Provided,
of ₱100,000. That such written order shall only be issued or
granted upon written application and the
Q: How is Gender-based Online Sexual examination under oath or affirmation of the
Harassment Committed? applicant and the witnesses may produce, and
A: Gender-based online sexual harassment upon showing that there are reasonable
includes acts that use information and grounds to believe that gender-based online
communications technology in terrorizing and sexual harassment has been committed or is
intimidating victims through physical, about to be committed, and that the evidence
psychological, and emotional threats, to be obtained is essential to the conviction of
unwanted sexual misogynistic, transphobic, any person for, or to the solution or prevention
homophobic and sexist remarks and of such crime.
comments online whether publicly or through
direct and private messages, invasion of Any record, photo or video, or copy thereof of
victim’s privacy through cyberstalking and any person that is in violation of the preceding
incessant messaging, uploading and sharing sections shall not be admissible in evidence in
without the consent of the victim, any form of any judicial, quasi-judicial, legislative or
media that contains photos, voice, or video administrative hearing or investigation.
with sexual content, any unauthorized
recording and sharing of any of the victim’s Q: How is Gender-based Sexual Harassment
photos, videos, or any information online, in the Workplace Committed?
impersonating identities of victims online or A: The crime of gender-based sexual
posting lies about victims to harm their harassment in the workplace includes the
reputation, or filing, false abuse reports to following115:
online platforms to silence victims.113 (a) An act or series of acts involving any
unwelcome sexual advances, requests or
Q: What are the penalties for Gender-based demand for sexual favors or any act of sexual
Online Sexual Harassment? nature, whether done verbally, physically or
A: The penalty of prision correccional in its through the use of technology such as text
medium period or a fine of not less than messaging or electronic mail or through any
₱100,000 but not more than ₱500,000, or other forms of information and
both, at the discretion of the court shall be communication systems, that has or could
imposed upon any person found guilty of any have a detrimental effect on the conditions of
gender-based online sexual harassment.114 an individual’s employment or education, job
performance or opportunities;
If the perpetrator is a juridical person, its (b) A conduct of sexual nature and other
license or franchise shall be automatically conduct-based on sex affecting the dignity of
deemed revoked, and the persons liable shall a person, which is unwelcome, unreasonable,
be the officers thereof, including the editor or and offensive to the recipient, whether done
reporter in the case of print media, and the verbally, physically or through the use of
station manager, editor and broadcaster in the technology such as text messaging or
case of broadcast media. An alien who electronic mail or through any other forms of
information and communication systems;
113
See Sec. 12, RA 11313.
114
See Sec. 14, RA 11313. 115
See Sec. 16, RA 11313.
/
(c) A conduct that is unwelcome and (5) Observe due process;
pervasive and creates an intimidating, hostile (6) Protect the complainant from retaliation;
or humiliating environment for the recipient: and
Provided, That the crime of gender-based (7) Guarantee confidentiality to the greatest
sexual harassment may also be committed extent possible;
between peers and those committed to a
superior officer by a subordinate, or to a (d) Provide and disseminate, in consultation
teacher by a student, or to a trainer by a with all persons in the workplace, a code of
trainee; and conduct or workplace policy which shall:
(d) Information and communication system (1) Expressly reiterate the prohibition on
refers to a system for generating, sending, gender-based sexual harassment;
receiving, storing or otherwise processing (2) Describe the procedures of the internal
electronic data messages or electronic mechanism created under Section 17(c) of
documents and includes the computer this Act; and
system or other similar devices by or in which (3) Set administrative penalties.
data are recorded or stored and any procedure
related to the recording or storage of Q: What are the Liabilities of Employers?
electronic data messages or electronic A: In addition to liabilities for committing acts
documents. of gender-based sexual harassment,
employers may also be held responsible for117:
Q: What are the Duties of Employers? (a) Non-implementation of their duties under
A: Employers or other persons of authority, Section 17 of this Act, as provided in the penal
influence or moral ascendancy in a workplace provisions; or
shall have the duty to prevent, deter, or punish (b) Not taking action on reported acts of
the performance of acts of gender-based gender-based sexual harassment committed in
sexual harassment in the workplace. Towards the workplace.
this end, the employer or person of authority,
influence or moral ascendancy shall116: Any person who violates subsection (a) of this
(a) Disseminate or post in a conspicuous place section, shall upon conviction, be penalized
a copy of this Act to all persons in the with a fine of not less than ₱5,000 nor more
workplace; than ₱10,000
.
(b) Provide measures to prevent gender-based Any person who violates subsection (b) of this
sexual harassment in the workplace, such as section, shall upon conviction, be penalized
the conduct of anti-sexual harassment with a fine of not less than ₱10,000 nor more
seminars; than ₱15,000.

(c) Create an independent internal mechanism Q: What is the rule on Gender-based Sexual
or a committee on decorum and investigation Harassment in Educational and Training
to investigate and address complaints of Institutions?
gender-based sexual harassment which shall: A: All schools, whether public or private, shall
(1) Adequately represent the management, designate an officer-in-charge to receive
the employees from the supervisory rank, the complaints regarding violations of this Act,
rank-and-file employees, and the union, if any; and shall, ensure that the victims are provided
(2) Designate a woman as its head and not with a gender-sensitive environment that is
less than half of its members should be both respectful to the victims’ needs and
women; conducive to truth-telling118.
(3) Be composed of members who should be
impartial and not connected or related to the Every school must adopt and publish
alleged perpetrator; grievance procedures to facilitate the filing of
(4) Investigate and decide on the complaints complaints by students and faculty members.
within ten (10) days or less upon receipt Even if an individual does not want to file a
thereof;
117
See Sec. 19, RA 11313.
116
See Sec. 17, RA 11313. 118
See Sec. 21, RA 11313.
/
complaint or does not request that the school (2) Designate a woman as its head and not
take any action on behalf of a student or less than half of its members should be
faculty member and school authorities have women;
knowledge or reasonably know about a (3) Ensure equal representation of persons of
possible or impending act of gender-based diverse sexual orientation, identity and/or
sexual harassment or sexual violence, the expression, in the CODI as far as practicable;
school should promptly investigate to (4) Be composed of members who should be
determine the veracity of such information or impartial and not connected or related to the
knowledge and the circumstances under alleged perpetrator;
which the act of gender-based sexual (5) Investigate and decide on complaints
harassment or sexual violence were within ten (10) days or less upon receipt,
committed, and take appropriate steps to thereof;
resolve the situation. If a school knows or (6) Observe due process;
reasonably should know about acts of (7) Protect the complainant from retaliation;
gender-based sexual harassment or sexual and
violence being committed that creates a (8) Guarantee confidentiality to the greatest
hostile environment, the school must take extent possible.
immediate action to eliminate the same acts,
prevent their recurrence, and address their (d) Provide and disseminate, in consultation
effects. with all persons in the educational institution, a
code of conduct or school policy which shall:
Once a perpetrator is found guilty, the (1) Expressly reiterate the prohibition on
educational institution may reserve the right gender-based sexual harassment;
to strip the diploma from the perpetrator or (2) Prescribe the procedures of the internal
issue an expulsion order. mechanism created under this Act; and
(3) Set administrative penalties.
The Committee on Decorum and Investigation
(CODI) of all educational institutions shall Q: What are the Liabilities of School Heads?
address gender-based sexual harassment and A: In addition to liability for committing acts
online sexual harassment in accordance with of gender-based sexual harassment,
the rules and procedures contained in their principals, school heads, teachers, instructors,
CODI manual. professors, coaches, trainers, or any odier
person who has authority, influence or moral
Q: What are the Duties of School Heads? ascendancy over another in an educational or
A: School heads shall have the following training institution may also be held
duties119: responsible for120:
(a) Disseminate or post a copy of this Act in a (a) Non-implementation of their duties under
conspicuous place in the educational Section 22 of this Act, as provided in the penal
institution; provisions; or
(b) Failure to act on reported acts of
(b) Provide measures to prevent gender-based gender-based sexual harassment committed in
sexual harassment in educational institutions, the educational institution.
like information campaigns;
Any person who violates subsection (a) of this
(c) Create an independent internal mechanism section, shall upon conviction, be penalized
or a CODI to investigate and address with a fine of not less than ₱5,000 nor more
complaints of gender-based sexual than ₱10,000.
harassment which shall:
(1) Adequately represent the school Any person who violates subsection (b) of this
administration, the trainers, instructors, section, shall upon conviction, be penalized
professors or coaches and students or with a fine of not less than ₱10,000 nor more
trainees, students and parents, as the case than ₱15,000.
may be;
119
See Sec. 22, RA 11313. 120
See Sec. 23, RA 11313.
/
Q: What are the Liabilities of Students? RA 11210 (105-Day Expanded Maternity Leave
A: Minor students who are found to have Law)
committed acts of gender-based sexual Section 1. Short Title. - This Act shall be known
harassment shall only be held liable for and cited as the "105-Day Expanded Maternity
administrative sanctions by the school as Leave Law".
stated in their school handbook.121
Section 2. Declaration of Policy. — It is the
declared policy of the State under Article XIII,
Section 14 of the 1987 Constitution to protect
MATERNITY AND PATERNITY LEAVE and promote the rights and welfare of working
women, taking into account them maternal
functions, and to provide an enabling
RA 1161 (Social Security Act), Sec. 14-A
environment in which their full potential can be
SECTION 14-A. Maternity Leave Benefit. — A achieved.
female member who has paid at least three (3)
monthly contributions in the twelve-month Article II, State Policies, Section 12 of the 1987
period immediately preceding the semester of Constitution provides that the State recognizes
her childbirth or miscarriage shall be paid a daily the sanctity of family life and shall protect and
maternity benefit equivalent to one hundred strengthen the family as the basic autonomous
percent (100%) of her average daily salary credit social institution and that it shall equally protect
for sixty (60) days or seventy-eight (78) days in the life of the mother and the life of the unborn
case of caesarian delivery, subject to the from conception. Moreover, Sections 17 and 22
following conditions: of Republic Act No. 9710, otherwise known as
(a) That the employee shall have notified her "The Magna Carta of Women", provides for
employer of her pregnancy and the probable women’s rights to health and decent work.
date of her childbirth, which notice shall be
transmitted to the SSS in accordance with the To achieve these, and in recognition of women’s
rules and regulations it may provide; maternal function as a social responsibility, the
(b) The full payment shall be advanced by the State shall institutionalize a mechanism to
employer within thirty (30) days from the filing expand the maternity leave period of women
of the maternity leave application; workers. This will provide them with ample
(c) That payment of daily maternity benefits transition time to regain health and overall
shall be a bar to the recovery of sickness wellness as well as to assume maternal roles
benefits provided by this Act for the same before resuming paid work. This Act is
period for which daily maternity benefits have consistent with local and international legal
been received; instruments that protect and promote the rights
(d) That the maternity benefits provided under of women.
this section shall be paid only for the first four
(4) deliveries or miscarriages; Section 3. Grant of Maternity Leave.— All
(e) That the SSS shall immediately reimburse covered female workers in government and the
the employer of one hundred percent (100%) of private sector, including those in the informal
the amount of maternity benefits advanced to economy, regardless of civil status or the
the employee by the employer upon receipt of legitimacy of her child, shall be granted one
satisfactory proof of such payment and legality hundred five (105) days maternity leave with full
thereof; and pay and an option to extend for an additional
(f) That if an employee member should give thirty (30) days without pay: Provided, That in
birth or suffer miscarriage without the required case the worker qualifies as a solo parent under
contributions having been remitted for her by Republic Act No. 8972, or the "Solo Parents’
her employer to the SSS, or without the latter Welfare Act", the worker shall be granted an
having been previously notified by the employer additional fifteen (15) days maternity leave with
of the time of the pregnancy, the employer shall full pay.
pay to the SSS damages equivalent to the
benefits which said employee member would Enjoyment of maternity leave cannot be
otherwise have been entitled to. deferred but should be availed of either before
or after the actual period of delivery in a

continuous and uninterrupted manner, not
exceeding one hundred five (105) days, as the
case may be.

121
See Sec. 24, RA 11313.
/
Maternity leave shall be granted to female date of her childbirth, which notice shall be
workers in every instance of pregnancy, transmitted to the SSS in accordance with the
miscarriage or emergency termination of rules and regulations it may provide;
pregnancy, regardless of frequency: Provided, (2) That the full payment shall be advanced by
That for cases of miscarriage or emergency the employer within thirty (30) days from the
termination of pregnancy, sixty (60) days filing of the maternity leave application;
maternity leave with full pay shall be granted. (3) That payment of daily maternity benefits
shall be a bar to the recovery of sickness
Section 4. Maternity Leave for Female Workers benefits provided under Republic Act No. 1161,
in the Public Sector.— Any pregnant female as amended, for the same period for which daily
worker in the government service, regardless of maternity benefits have been received;
employment status, in National Government (4) That the SSS shall immediately reimburse
Agencies (NGAs), Local Government Units the employer of one hundred percent (100%) of
(LGUs), Government-Owned or -Controlled the amount of maternity benefits advanced to
Corporations (GOCCs), or State Universities and the female worker by the employer upon receipt
Colleges (SUCs), shall be granted a maternity of satisfactory and legal proof of such payment;
leave of one hundred five (105) days with full and
pay regardless if the delivery was normal or (5) That if a female worker should give birth or
caesarian: Provided, That, in case the employee suffer a miscarriage or emergency termination
qualifies as a solo parent under Republic Act of pregnancy without the required contributions
No. 8972, or the "Solo Parents’ Welfare Act", the having been remitted for her by her employer to
employee shall be paid an additional maternity the SSS, or without the latter having been
benefit of fifteen (15) days. An additional previously notified by the employer of the time
maternity leave of thirty (30) days, without pay, of the pregnancy, the employer shall pay to the
can be availed of, at the option of the female SSS damages equivalent to the benefits which
worker: Provided, further, That, the head of the said female member would otherwise have been
agency shall be given due notice, in writing, at entitled to.
least forty-five (45) days before the end of her
maternity leave: Provided, finally, That no prior In case the employee qualifies as a solo parent
notice shall be necessary in the event of a under Republic Act No. 8972, or the "Solo
medical emergency but subsequent notice shall Parents’ Welfare Act", the employee shall be
be given to the head of the agency. paid an additional maternity benefit of fifteen
(15) days.
Maternity leave of sixty (60) days, with full pay,
shall be granted for miscarriage or emergency (b) An additional maternity leave of thirty (30)
termination of pregnancy. days, without pay, can be availed of, at the
Section 5. Maternity Leave for Female Workers option of the female worker: Provided, That the
in the Private Sector.— Any pregnant female employer shall be given due notice, in writing, at
worker in the private sector shall be granted a least forty-five (45) days before the end of her
maternity leave of one hundred five (105) days maternity leave: Provided, further, That no prior
with full pay, regardless of whether she gave notice shall be necessary in the event of a
birth via caesarian section or natural delivery, medical emergency but subsequent notice shall
while maternity leave of sixty (60) days with full be given to the head of the agency.
pay shall be granted for miscarriage or
emergency termination of pregnancy. (c) Workers availing of the maternity leave
period and benefits must receive their full pay.
(a) A female Social Security System (SSS) Employers from the private sector shall be
member who has paid at least three (3) monthly responsible for payment of the salary
contributions in the twelve (12)-month period differential between the actual cash benefits
immediately preceding the semester of her received from the SSS by the covered female
childbirth, miscarriage, or emergency workers and their average weekly or regular
termination of pregnancy shall be paid her daily wages, for the entire duration of the maternity
maternity benefit which shall be computed leave, with the following exceptions, subject to
based on her average monthly salary credit for the guidelines to be issued by the Department of
one hundred five (105) days, regardless of Labor and Employment (DOLE):
whether she gave birth via caesarian section or (1) Those operating distressed establishments;
natural delivery, subject to the following (2) Those retail/service establishments and
conditions: other enterprises employing not more than ten
(1) That the female worker shall have notified (10) workers;
her employer of her pregnancy and the probable (3) Those considered as micro-business
/
enterprises and engaged in the production, childbirth and sixty (60) days for miscarriage or
processing, or manufacturing of products or emergency termination of pregnancy based on
commodities including agro-processing, trading, her full pay, in addition to the other applicable
and services, whose total assets are not more daily cash maternity benefits that she should
than Three million pesos (₱3,000,000.00); and have received had her employment not been
(4) Those who are already providing similar or illegally terminated.
more than the benefits herein provided.
Provided, That said exemptions shall be subject Section 9. Maternity Leave Credits.— The
to an annual submission of a justification by the maternity leave can be credited as
employer claiming exemption for the approval combinations of prenatal and postnatal leave as
of the DOLE. long as it does not exceed one hundred five
(105) days and provided that compulsory
Section 6. Allocation of Maternity Leave postnatal leave shall not be less than sixty (60)
Credits.— Any female worker entitled to days.
maternity leave benefits as provided for herein
may, at her option, allocate up to seven (7) days Section 10. Maternity Leave Benefits for Women
of said benefits to the child’s father, whether or in the Informal Economy and Voluntary
not the same is married to the female worker: Contributors to the SSS.— Maternity benefits
Provided, That in the death, absence, or shall cover all married and unmarried women,
incapacity of the former, the benefit may be including female workers in the informal
allocated to an alternate caregiver who may be economy.
a relative within the fourth degree of
consanguinity or the current partner of the Female workers in the informal economy are
female worker sharing the same household, entitled to maternity leave benefits if they have
upon the election of the mother taking into remitted to the SSS at least three (3) monthly
account the best interests of the child: Provided, contributions in the .twelve (12)-month period
further, That written notice thereof is provided to immediately preceding the semester of her
the employers of the female worker and childbirth, miscarriage, or emergency
alternate caregiver: Provided, furthermore, That termination of pregnancy.
this benefit is over and above that which is
provided under Republic Act No. 8187, or the Section 11. Maternity Benefits for Female
"Paternity Leave Act of 1996": Provided, finally, Workers Who are Non-Members of the SSS.—
That in the event the beneficiary female worker Female workers who are neither voluntary nor
dies or is permanently incapacitated, the regular members of the SSS shall be governed
balance of her maternity leave benefits shall by the Philippine Health Insurance Corporation
accrue to the father of the child or to a qualified (PhilHealth) Circular No. 022-2014 or the "Social
caregiver as provided above. Health Insurance Coverage and Benefits for
Women About to Give Birth".
Section 7. Maternity Leave for Women
Regardless of Civil Status.— All female workers Section 12. Maternity Leave of a Female Worker
in the government and female members of the With Pending Administrative Case. — The
SSS, regardless of their civil status, shall be maternity leave benefits granted under this Act
granted maternity leave, with full pay, upon shall be enjoyed by a female worker in the
compliance with the preceding section. government service and in the private sector
even if she has a pending administrative case.
Section 8. Maternity Leave With Pay in Case of
Childbirth, Miscarriage, or Emergency Section 13. Maternity Leave for Female National
Termination of Pregnancy After the Termination Athletes.— In the event a national athlete
of an Employee’s Service.— Maternity leave with becomes pregnant, she will be referred to the
full pay shall be granted even if the childbirth, team physician or an accredited physician of the
miscarriage, or emergency termination of Philippine Sports Commission (PSC) or an
pregnancy occurs not more than fifteen (15) obstetrician-gynecologist to determine her
calendar days after the termination of an fitness to continue training. She will be allowed
employee’s service, as her right thereto has to participate in all team-related activities,
already accrued: Provided, That such period is unless the physician advises that participation
not applicable when the employment of the is not medically safe or should be limited. Upon
pregnant woman worker has been terminated medical advice, she shall go on maternity leave
without just cause, in which case the employer until cleared to return to training. She shall
will pay her the full amount equivalent to her continue receiving her allowance and be entitled
salary for one hundred five (105) days for to the same benefits while on maternity leave
/
prior to childbirth and up to six (6) months after, Section 18. Penalties. - Whoever fails or refuses
unless she can resume sooner as advised by to comply with the provisions of this Act shall
her physician, in which case, she will be entitled be punished by a fine of not less than Twenty
to the allowance and benefits she had prior to thousand pesos (₱20,000.00) nor more than
pregnancy: Provided, That a female national Two hundred thousand pesos (₱200,000.00),
athlete employed in the public sector shall not and imprisonment of not less than six (6) years
receive double compensation or benefits. and one (1) day nor more than twelve (12) years
or both. If the act or omission penalized by this
Section 14. Non-Diminution of Benefits. - Act shall be committed by an association,
Nothing in this Act shall be construed as to partnership, corporation, or any other institution,
diminish existing maternity benefits currently its managing head, directors, or partners shall
enjoyed whether or not these are granted under be liable to the penalties provided in this Act for
collective bargaining agreements (CBA) or the offense.
present laws, if the same are more beneficial to
the female worker. Any other working Failure on the part of any association,
arrangement which the female worker shall partnership, corporation, or private enterprise to
agree to, during the additional maternity leave comply with the provisions of this Act shall be a
period, shall be allowed: Provided, That this shall ground for non-renewal of business permits.
be consented to in writing by the female worker
and shall primarily uphold her maternal
functions and the requirements of postnatal
care. RA 8187 (Paternity Leave Act)
SECTION 1. Short Title. – This Act shall be
Section 15. Security of Tenure. - Those who known as the “Paternity Leave Act of 1996“.
avail of the benefits of this Act, whether in the
government service or private sector, shall be SECTION 2. Notwithstanding any law, rules and
assured of security of tenure. As such, the regulations to the contrary, every married male
exercise of this option by them shall not be used employee in the private and public sectors shall
as basis for demotion in employment or be entitled to a paternity leave of seven (7) days
termination. The transfer to a parallel position or with full pay for the first four (4) deliveries of
reassignment from one organizational unit to the legitimate spouse with whom he is
another in the same agency or private enterprise cohabiting. The male employee applying for
shall be allowed: Provided, That it shall not paternity leave shall notify his employer of the
involve a reduction in rank, status, salary, or pregnancy of his legitimate spouse and the
otherwise amount to constructive dismissal. expected date of such delivery.

Section 16. Non-Discrimination. - No employer For purposes, of this Act, delivery shall include
whether in the public or private sector shall childbirth or any miscarriage.
discriminate against the employment of women
in order to avoid the benefits provided for in this SECTION 3. Definition of Term. – For purposes
Act. of this Act, Paternity Leave refers to the
benefits granted to a married male employee
Section 17. Periodic Review. - The Civil Service allowing him not to report for work for seven (7)
Commission (CSC), the DOLE, the SSS, and the days but continues to earn the compensation
Gender Ombud of the Commission on Human therefor, on the condition that his spouse has
Rights (CHR), in consultation with trade unions, delivered a child or suffered a miscarriage for
labor organizations, and employers’ purposes of enabling him to effectively lend
representatives shall within one (1) month after support to his wife in her period of recovery
the effectivity of this Act conduct a review of the and/or in the nursing of the newly-born child.
maternity leave benefits of female workers in
the government service and the private sector, SECTION 4. The Secretary of Labor and
respectively. Thereafter, they shall include Employment, the Chairman of the Civil Service
maternity leave benefits in their valuation report Commission and the Secretary of Health shall,
conducted every four (4) years for the SSS and within thirty (30) days from the effectivity of this
the DOLE and every three (3) years for the CSC, Act, issue such rules and regulations necessary
or more frequently as may be necessary, with for the proper implementation of the provisions
the end in view of meeting the needs of hereof.
pregnant women and newly-born infants, and
improving their welfare. SECTION 5. Any person, corporation, trust, firm,

/
partnership, association or entity found violating to paternity leave benefits of seven (7) days with
this Act or the rules and regulations full pay for the first four deliveries by his lawful
promulgated thereunder shall be punished by a spouse under such terms and conditions as
fine not exceeding Twenty-five thousand pesos hereinafter provided.
(P25,000) or imprisonment of not less than
thirty (30)days nor more than six (6) months. The rules on paternity leave of employees in the
public sector shall be promulgated by the Civil
If the violation is committed by a corporation, Service Commission.
trust or firm, partnership, association or any
other entity, the penalty of imprisonment shall SECTION 3. Conditions to entitlement of
be imposed on the entity’s responsible officers, paternity leave benefits. — A married male
including, but not limited to, the president, employee shall be entitled to paternity benefits
vice-president, chief executive officer, general provided that:
manager, managing director or partner directly a. he is an employee at the time of delivery of
responsible therefor. his child;
b. he is cohabiting with his spouse at the time
SECTION 6. Non-diminution Clause. – Nothing she gives birth or suffers a miscarriage .
in this Act shall be construed to reduce any c. he has applied for paternity leave in
existing benefits of any form granted under accordance with Section 4 hereof; and
existing laws, decrees, executive orders, or any d. his wife has given birth or suffered a
contract agreement or policy between employer miscarriage.
and employee.
SECTION 4. Application for leave. — The
married male employees shall apply for
paternity leave with his employer within a
Implementing Rules and Regulations of RA reasonable period of time from the expected
8187 (Paternity Leave Act) date of delivery by the pregnant spouse, or
SECTION 1. Definition of Terms.— As used in within such period as may be provided by
these Rules, the following terms shall have the company rules and regulations or by collective
meaning as indicated hereunder: bargaining agreement, provided that prior
application for leave shall not be required in
a. "Paternity leave" refers to the leave benefits case of miscarriage.
granted to a married male employee allowing
him not to report for work for seven (7) days but SECTION 5. Availment. — Paternity leave
continues to earn the compensation therefor, on benefits shall be granted to the qualified
the condition that his spouse has delivered a employee after the delivery by his wife, without
child or suffered a miscarriage for the purpose prejudice to an employer allowing an employee
of lending support to his wife during her period to avail of the benefit before or during the
of recovery and/or in nursing of the newly born delivery; provided, that the total number of days
child. shall not exceed seven (7) days for each
delivery.

b. "Employee" refers to any person who
SECTION 6. Benefits. — The employee is
performs services for another and receives
entitled to his full pay, consisting of basic salary,
compensation therefor, provided an
for the seven (7) days during which he is
employer-employee relationship exists between
allowed not to report for work, provided, that his
them.
pay shall not be less than the mandated

minimum wage.
c. "Delivery" refers to childbirth or miscarriage.

SECTION 7. Non-commutation of benefits. — In
d. "Spouse" refers to the lawful wife. For this
the event that paternity leave benefit is not
purpose, lawful wife refers to a woman who is
availed of, said leave shall not be convertible to
legally married to the male employee
cash.
concerned.

SECTION 8. Non-diminution clause. — Nothing
e. "Cohabiting" refers to the obligation of the
in these Rules shall be construed to reduce or
husband and wife to live together.
replace any existing benefits of any kind granted

under existing laws, decrees, executive orders,
SECTION 2. Coverage.— Every married male
or any contract, agreement or policy between
employee in the private sector shall be entitled
employer and employee.
/
SECTION 9. Crediting of existing benefits. — Resolution No. 1501531 * in a newspaper of
Where a male employee is already enjoying the general circulation.
paternity leave benefits by reason of contract,
company policy or collective bargaining
agreement, the following rules shall apply:
VAWC Victim’s Leave
a. If the existing paternity leave benefit is
greater than the benefit herein provided, the
greater benefit shall prevail; RA 9262 (Anti-Violence Against Women and
b. If the existing paternity leave is less than that Their Children Act), Secs. 3(a), 5, and 43
provided herein, such existing benefit shall be
adjusted to the extent of the difference. SECTION 3. Definition of Terms.- As used in this
Act,
However, where a contract, company policy or
(a) "Violence against women and their children"
collective bargaining agreement provides for an
refers to any act or a series of acts committed
emergency or contingency leave without
by any person against a woman who is his wife,
specific provisions on paternity leave, the
former wife, or against a woman with whom the
paternity leave as herein provided shall apply in
person has or had a sexual or dating
full.
relationship, or with whom he has a common

child, or against her child whether legitimate or
SECTION 10. Penalty. — Any person,
illegitimate, within or without the family abode,
corporation, trust, firm, partnership, association
which result in or is likely to result in physical,
or entity found violating any provision of these
sexual, psychological harm or suffering, or
Rules shall be penalized by a fine not exceeding
economic abuse including threats of such acts,
twenty five thousand pesos (P25,000) or
battery, assault, coercion, harassment or
imprisonment of not less than thirty (30) days
arbitrary deprivation of liberty. It includes, but is
nor more than six (6) months.
not limited to, the following acts:

If the violation is committed by a corporation,
A. "Physical Violence" refers to acts that include
trust or firm, partnership, association or any
bodily or physical harm;
other entity, the penalty of imprisonment shall
be imposed on the entity's responsible officers, B. "Sexual violence" refers to an act which is
including but not limited to, the president, vice sexual in nature, committed against a woman or
president, chief executive officer, general her child. It includes, but is not limited to:
manager, managing director or partner directly a) rape, sexual harassment, acts of
responsible therefor. lasciviousness, treating a woman or her child as
a sex object, making demeaning and sexually
suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing
CSC Memorandum Circular No. 01-2016
her/him to watch obscene publications and
Pursuant to CSC Resolution No. 1501531 dated indecent shows or forcing the woman or her
December 21, 2015, the Commission amends child to do indecent acts and/or make films
Section 20 of the Omnibus Rules on Leave, as thereof, forcing the wife and mistress/lover to
follows: live in the conjugal home or sleep together in
the same room with the abuser;
"Section 20. Paternity Leave b) acts causing or attempting to cause the
Non-Cumulative/Non-Commutative. — Paternity victim to engage in any sexual activity by force,
leave of seven (7) days shall be non-cumulative threat of force, physical or other harm or threat
and strictly non-convertible to cash. The same of physical or other harm or coercion;
may be enjoyed either in a continuous or in an c) Prostituting the woman or child.
intermittent manner by the employee on the
days immediately before, during and after the C. "Psychological violence" refers to acts or
childbirth or miscarriage of his legitimate omissions causing or likely to cause mental or
spouse. Said leave shall be availed of not later emotional suffering of the victim such as but
than sixty (60) days after the date of the child's not limited to intimidation, harassment, stalking,
delivery." damage to property, public ridicule or
humiliation, repeated verbal abuse and mental
This Memorandum Circular shall take effect infidelity. It includes causing or allowing the
fifteen (15) days after the publication of CSC victim to witness the physical, sexual or
/
psychological abuse of a member of the family (2) Depriving or threatening to deprive the
to which the victim belongs, or to witness woman or her children of financial support
pornography in any form or to witness abusive legally due her or her family, or deliberately
injury to pets or to unlawful or unwanted providing the woman's children insufficient
deprivation of the right to custody and/or financial support;
visitation of common children. (3) Depriving or threatening to deprive the
woman or her child of a legal right;
D. "Economic abuse" refers to acts that make or (4) Preventing the woman in engaging in any
attempt to make a woman financially dependent legitimate profession, occupation, business or
which includes, but is not limited to the activity or controlling the victim's own mon4ey
following: or properties, or solely controlling the conjugal
1. withdrawal of financial support or preventing or common money, or properties;
the victim from engaging in any legitimate
profession, occupation, business or activity, (f) Inflicting or threatening to inflict physical
except in cases wherein the other harm on oneself for the purpose of controlling
spouse/partner objects on valid, serious and her actions or decisions;
moral grounds as defined in Article 73 of the
Family Code; (g) Causing or attempting to cause the woman
2. deprivation or threat of deprivation of or her child to engage in any sexual activity
financial resources and the right to the use and which does not constitute rape, by force or
enjoyment of the conjugal, community or threat of force, physical harm, or through
property owned in common; intimidation directed against the woman or her
3. destroying household property; child or her/his immediate family;
4. controlling the victims' own
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
SECTION 5. Acts of Violence Against Women alarms or causes substantial emotional or
and Their Children.- The crime of violence psychological distress to the woman or her
against women and their children is committed child. This shall include, but not be limited to,
through any of the following acts: the following acts:
(1) Stalking or following the woman or her child
(a) Causing physical harm to the woman or her in public or private places;
child; (2) Peering in the window or lingering outside
the residence of the woman or her child;
(b) Threatening to cause the woman or her child (3) Entering or remaining in the dwelling or on
physical harm; the property of the woman or her child against
her/his will;
(c) Attempting to cause the woman or her child (4) Destroying the property and personal
physical harm; belongings or inflicting harm to animals or pets
of the woman or her child; and
(d) Placing the woman or her child in fear of (5) Engaging in any form of harassment or
imminent physical harm; violence;

(e) Attempting to compel or compelling the (i) Causing mental or emotional anguish, public
woman or her child to engage in conduct which ridicule or humiliation to the woman or her child,
the woman or her child has the right to desist including, but not limited to, repeated verbal and
from or desist from conduct which the woman emotional abuse, and denial of financial support
or her child has the right to engage in, or or custody of minor children of access to the
attempting to restrict or restricting the woman's woman's child/children.
or her child's freedom of movement or conduct
by force or threat of force, physical or other
harm or threat of physical or other harm, or SECTION 43. Entitled to Leave. – Victims under
intimidation directed against the woman or this Act shall be entitled to take a paid leave of
child. This shall include, but not limited to, the absence up to ten (10) days in addition to other
following acts committed with the purpose or paid leaves under the Labor Code and Civil
effect of controlling or restricting the woman's Service Rules and Regulations, extendible when
or her child's movement or conduct: the necessity arises as specified in the
(1) Threatening to deprive or actually depriving protection order.
the woman or her child of custody to her/his
family; Any employer who shall prejudice the right of
/
the person under this section shall be penalized Solo Parent’s Leave
in accordance with the provisions of the Labor
Code and Civil Service Rules and Regulations.
Likewise, an employer who shall prejudice any RA 8972 (Solo Parents’ Welfare Act of 2000),
person for assisting a co-employee who is a Secs. 3(a), and 6-8
victim under this Act shall likewise be liable for SECTION 3. Definition of Terms.- Whenever
discrimination. used in this Act, the following terms shall mean
as follows:

(a) “Solo parent” – any individual who falls
Rules and Regulations Implementing RA 9262,
under any of the following categories:
Sec. 42
(1) A woman who gives birth as a result of rape
SECTION 42. Ten-day paid leave in addition to and other crimes against chastity even without a
other leave benefits. — At any time during the final conviction of the offender: Provided, That
application of any protection order, the mother keeps and raises the child;
investigation, prosecution and/or trial of the (2) Parent left solo or alone with the
criminal case, a victim of VAWC who is responsibility of parenthood due to death of
employed shall be entitled to a paid leave of up spouse;
to ten (10) days in addition to other paid leaves (3) Parent left solo or alone with the
under the Labor Code and Civil Service Rules responsibility of parenthood while the spouse is
and Regulations and other existing laws and detained or is serving sentence for a criminal
company policies, extendible when the conviction for at least one (1) year;
necessity arises as specified in the protection (4) Parent left solo or alone with the
order. The Punong Barangay/kagawad or responsibility of parenthood due to physical
prosecutor or the Clerk of Court, as the case and/or mental incapacity of spouse as certified
may be, shall issue a certification at no cost to by a public medical practitioner;
the woman that such an action is pending, and (5) Parent left solo or alone with the
this is all that is required for the employer to responsibility of parenthood due to legal
comply with the 10-day paid leave. For separation or de facto separation from spouse
government employees, in addition to the for at least one (1) year, as long as he/she is
aforementioned certification, the employee entrusted with the custody of the children;
concerned must file an application for leave (6) Parent left solo or alone with the
citing as basis R.A. 9262. The administrative responsibility of parenthood due to declaration of
enforcement of this leave entitlement shall be nullity or annulment of marriage as decreed by a
considered within the jurisdiction of the court or by a church as long as he/she is
Regional Director of the DOLE under Article 129 entrusted with the custody of the children;
of the Labor Code of the Philippines, as (7) Parent left solo or alone with the
amended, for employees in the private sector, responsibility of parenthood due to abandonment
and the Civil Service Commission, for of spouse for at least one (1) year;
government employees. (8) Unmarried mother/father who has preferred
to keep and rear her/his child/children instead of
The availment of the ten day-leave shall be at having others care for them or give them up to a
the option of the woman employee, which shall welfare institution;
cover the days that she has to attend to medical (9) Any other person who solely provides
and legal concerns. Leaves not availed of are parental care and support to a child or children;
non-cumulative and not convertible to cash. (10) Any family member who assumes the
responsibility of head of family as a result of the
The employer/agency head who denies the death, abandonment, disappearance or
application for leave, and who shall prejudice prolonged absence of the parents or solo parent.
the victim-survivor or any person for assisting a
co-employee who is a victim-survivor under the A change in the status or circumstance of the
Act shall be held liable for discrimination and parent claiming benefits under this Act, such
violation of R.A. 9262. that he/she is no longer left alone with the
responsibility of parenthood, shall terminate
The provision of the Labor Code and the Civil his/her eligibility for these benefits.
Service Rules and Regulations shall govern the
penalty to be imposed on the said

employer/agency head.

/
SECTION 6. Flexible Work Schedule.- The
employer shall provide for a flexible working (a) He/She has rendered at least one (1) year of
schedule for solo parents: Provided, That the service whether continuous or broken at the time
same shall not affect individual and company of the effectivity of the Act;
productivity: Provided, further, That any
employer may request exemption from the (b) He/She has notified his/her employer of the
above requirements from the DOLE on certain availment thereof within a reasonable time
meritorious grounds. period; and

(c) He/She has presented a Solo Parent
SECTION 7. Work Discrimination.- No employer Identification Card to his/her employer.
shall discriminate against any solo parent

employee with respect to terms and conditions
of employment on account of his/her status. SECTION 20. Non-conversion of Parental Leave.
- In the event that the parental leave is not

availed of, said leave shall not be convertible to
SECTION 7. Parental Leave. - In addition to cash unless specifically agreed upon previously.
leave privileges under existing laws, parental However, if said leave were denied an employee
leave of not more than 7 working days every as a result of non-compliance with the
year shall be granted to any solo parent provisions of these Rules by an employer, the
employee who has rendered service of at least 1 aforementioned leave may be used as a basis
year. for the computation of damages.

SECTION 21. Crediting of Existing Leave. - If
Implementing Rules and Regulations of RA there is an existing or similar benefit under a
8972 (Solo Parents’ Welfare Act of 2000), company policy, or a collective bargaining
Secs.16-21) agreement or collective negotiation agreement
the same shall be credited as such. If the same
SECTION 16. Flexible Work Schedule.- is greater than the seven (7) days provided for in
the Act, the greater benefit shall prevail.
X X X
Emergency or contingency leave provided under
In the case of employees in the government a company policy or a collective bargaining
service, flexible working hours will be subject to agreement shall not be credited as compliance
the discretion of the head of the agency. In no with the parental leave provided for under the
case shall the weekly working hours be reduced Act and these Rules.
in the event the agency adopts the flexible
working hours schedule format (flexitime). In
the adoption of flexi-time, the core working
hours shall be prescribed taking into
consideration the needs of the service.
Special Leave

SECTION 17. Work Discrimination. RA 9710 (Magna Carta for Women), Sec. 18

X X X SECTION 18. Special Leave Benefits for Women.
A woman employee having rendered continuous
aggregate employment service of at least 6
SECTION 18. Parental Leave. months for the last 12 months shall be entitled
to a special leave benefit of 2 months with full
X X X pay based on her gross monthly compensation
following surgery caused by gynecological
The seven-day parental leave shall be disorders.
non-cumulative

SECTION 19. Conditions for Entitlement of

Parental Leave. - A solo parent shall be entitled
to parental leave provided that:
/
Implementing Rules and Regulations of RA
B. NIGHT WORKERS
9710 (Magna Carta for Women), Secs. 7 (M)
and 21
Arts. 154-161, Labor Code (As amended by
SECTION 7. Definition of Terms. - As used in
these Rules and Regulations, the following
RA 10151)
terms shall mean: ARTICLE 154. Coverage. — This chapter shall
apply to all persons, who shall be employed or
X X X permitted or suffered to work at night, except
those employed in agriculture, stock raising,
M. “Gynecological disorders” refers to disorders fishing, maritime transport and inland
that would require surgical procedures such as, navigation, during a period of not less than
but not limited to, dilatation and curettage and seven (7) consecutive hours, including the
those involving female reproductive organs interval from midnight to five o'clock in the
such as the vagina, cervix, uterus, fallopian morning, to be determined by the Secretary of
tubes, ovaries, breast, adnexa and pelvic floor, Labor and Employment, after consulting the
as certified by a competent physician. For workers' representatives/labor organizations
purposes of the Act and these Rules and and employers.
Regulations, gynecological surgeries shall also
include hysterectomy, ovariectomy, and "Night worker" means any employed person
mastectomy whose work requires performance of a
substantial number of hours of night work which
X X X exceeds a specified limit. This limit shall be
fixed by the Secretary of Labor after consulting

the workers' representatives/labor organizations
SECTION 21. Special Leave Benefits for Women. and employers.
- A. Any female employee in the public and

private sector regardless of age and civil status
shall be entitled to a special leave of two (2) ARTICLE 155. Health Assessment. — At their
months with full pay based on her gross request, workers shall have the right to undergo
monthly compensation subject to existing laws, a health assessment without charge and to
rules and regulations due to surgery caused by receive advice on how to reduce or avoid health
gynecological disorders under such terms and problems associated with their work:
conditions: (a) Before taking up an assignment as a night
worker;
1. She has rendered at least six (6) months (b) At regular intervals during such an
continuous aggregate employment service for assignment; and
the last twelve (12) months prior to surgery; (c) If they experience health problems during
such an assignment which are not caused by
2. In the event that an extended leave is factors other than the performance of night
necessary, the female employee may use her work.
earned leave credits; and
With the exception of a finding of unfitness for
3. This special leave shall be non-cumulative and night work, the findings of such assessments
nonconvertible to cash. shall not be transmitted to others without the
workers' consent and shall not be used to their
B. The CSC, in the case of the public sector detriment..
including LGUs and other State agencies, and
the DOLE, in the case of the private sector, shall
issue further guidelines and appropriate ARTICLE 156. Mandatory Facilities. — Suitable
memorandum circulars within sixty (60) days first-aid facilities shall be made available for
from the adoption of these Rules and workers performing night work, including
Regulations to operationalize said policy, and arrangements where such workers, where
monitor its implementation and act on any necessary, can be taken immediately to a place
violations thereof. for appropriate treatment. The employers are
likewise required to provide safe and healthful

working conditions and adequate or reasonable
facilities such as sleeping or resting quarters in
the establishment and transportation from the
work premises to the nearest point of their
/
residence subject to exceptions and guidelines the period of the pregnancy that they can safely
to be provided by the DOLE. work.

The measures referred to in this article may
ARTICLE 157. Transfer. — Night workers who include transfer to day work where this is
are certified as unfit for night work, due to health possible, the provision of social security
reasons, shall be transferred, whenever benefits or an extension of maternity leave.
practicable, to a similar job for which they are fit
to work. The provisions of this article shall not have the
effect of reducing the protection and benefits
If such transfer to a similar job is not connected with maternity leave under existing
practicable, these workers shall be granted the laws.
same benefits as other workers who are unable

to work, or to secure employment during such
period. ARTICLE 159. Compensation. — The
compensation for night workers in the form of
A night worker certified as temporarily un t for working time, pay or similar benefits shall
night work shall be given the same protection recognize the exceptional nature of night work.
against dismissal or notice of dismissal as

other workers who are prevented from working
for reasons of health. ARTICLE 160. Social Services. — Appropriate
social services shall be provided for night

workers and, where necessary, for workers
ARTICLE 158. Women Night Workers. — performing night work..
Measures shall be taken to ensure that an

alternative to night work is available to women
workers who would otherwise be called upon to ARTICLE 161. Night Work Schedules. — Before
perform such work: introducing work schedules requiring the
services of night workers, the employer shall
(a) Before and after childbirth, for a period of at consult the workers' representatives/labor
least sixteen (16) weeks, which shall be divided organizations concerned on the details of
between the time before and after childbirth; suchschedules and the forms of organization of
night work that are best adapted to the
(b) For additional periods, in respect of which a establishment and its personnel, as well as on
medical certificate is produced stating that said the occupational health measures and social
additional periods are necessary for the health services which are required. In establishments
of the mother or child: employing night workers, consultation shall take
(1) During pregnancy; place regularly.
(2) During a specified time beyond the period,
after childbirth is fixed pursuant to
subparagraph (a) above, the length of which Recall:
shall be determined by the DOLE after RA 10151
consulting the labor organizations and ● RA 10151 repeals the law prohibiting
employers. night work of women workers under
During the periods referred to in this article: Articles 130 and 131.
(i) A woman worker shall not be dismissed or ● As R.A. No. 10151 repeals the law
given notice of dismissal, except for just or prohibiting night work, it creates the
authorized causes provided for in this Code that
law on employment of night workers,
are not connected with pregnancy, childbirth
constituting Articles 154 to 161.
and childcare responsibilities.
(ii) A woman worker shall not lose the benefits ● RA. No. 10151 abolished the
regarding her status, seniority, and access to prohibition against night work,
promotion which may attach to her regular night considering the operations of
work position. international business and the nation's
need for better productivity and
Pregnant women and nursing mothers may be competitiveness.
allowed to work at night only if a competent ● [T]he law protects the workers by
physician, other than the company physician, requiring:
shall certify their fitness to render night work,
and specify, in the case of pregnant employees,
/
(a) the provision of certain facilities not be used to their detriment, subject to
such as sleeping or lactation quarters applicable company policies.
and means of transport; EXCEPTION: When there is a finding of
(b) conduct of medical examination to unfitness for night work (Sec. 3, DO 119-12).
determine fitness for night work; and
(c) observance of legal process .to Second, mandatory facilities shall be made
decide appropriate action where a available for workers performing night work.
worker is found unfit for night work.122 ● These shall include:
(1) Suitable first-aid and emergency
RA. No. 10151, the law on night work, leaves facilities as provided for under Rule
to the Secretary of Labor, the detailed 1960 (Occupational Health Services)
definition of night work and night worker. of the Occupational Safety and Health
Standards (OSHS);
(2) Lactation station in required
Department Order No. 119-12 companies pursuant to Republic Act
No. 10028 (The Expanded
Q: What is the coverage? Breastfeeding Promotion Act of 2009);
A: GENERAL RULE: This Rule shall apply to all (3) Separate toilet facilities for men and
persons who shall be employed or permitted women;
or suffered to work at night. (4) Facility for eating with potable
EXCEPTIONS: Those employed in: drinking water; and
(1) Agriculture; (5) Facilities for transportation and/or
(2) Stock raising; properly ventilated temporary sleeping
(3) Fishing; or resting quarters, separate for male
(4) Maritime transport; and and female workers, shall be provided
(5) Inland navigation. except:
(Sec. 1, DO 119-12). (a) Where there is an existing
company guideline, practice or
Q: Who is a night worker? policy, collective bargaining
A: It means any employed person whose work agreement (CBA) or any similar
covers the period from 10 o'clock in the agreement between
evening to 6 o'clock the following morning management and workers
provided that the worker performs no less than providing for an equivalent or
seven (7) consecutive hours of work (Sec. 2, superior benefit; or
DO 119-12). (b) Where the start or end of the
night work does not fall within
Q: What rights are night workers entitled to? 12 midnight to 5 o'clock in the
A: First, workers are entitled to the right to morning; or
undergo health assessment, without charge (c) Where the workplace is located
and to receive advise on how to reduce or in an area that is accessible
avoid health problems associated with their twenty-four (24) hours to public
work: transportation;
(1) Before taking up an assignment as a night (d) Where the number of
worker; employees does not exceed a
(2) At regular intervals during such an specified number as may be
assignment; provided for by the Secretary of
(3) If they experience health problems during Labor and Employment in
such an assignment. subsequent issuances
(Sec. 4, DO 119-12).
GENERAL RULE: The findings of such
assessments shall be confidential and shall Q: What happens to a night worker that is
certified as unfit to render night work due to
Such process includes transfer of worker to day
122
health reasons?
work, if practicable, and, only as a last recourse, A: They shall be transferred to a job for which
separation from employment. they are fit to work whenever practicable. The

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transfer of the employee must be to a similar women workers in accordance with
or equivalent position and in good faith. the provisions of Republic Act No.
8282 (Social Security Act of 1997) and
If such transfer is not practicable or the other existing company policy or
workers are unable to render night work for a collective bargaining agreement.
continuous period of not less than six (6) ● Extension of maternity leave. — Where
months upon the certification of a competent transfer to day work is not possible, a
public health authority, these workers shall be woman employee may be allowed to
granted the same company benefits as other extend, as recommended by a
workers who are unable to work due to illness. competent physician, her maternity
leave without pay or using earned
A night worker certified as temporarily unfit leave credits of the worker, if any.
for night work for a period of less than six (6) (Sec. 6, DO 119-12).
months shall be given the same protection
against dismissal or notice of dismissal as Note that, under Sec. 7 of DO 119-12, the
other workers who are prevented from non-diminution of maternity leave benefits
working for health reasons (Sec. 5, DO under existing laws is provided for.
119-12).
Q: What happens when no alternative work
Q: What are alternative measures to night can be provided to a woman employee who is
work for pregnant and nursing employees? not in a position to render night work?
A: Such measures may include the transfer to A: She shall be allowed to go on leave or an
day work, where it is possible, as well as the expanded maternity leave, where applicable,
provision of social security benefits or an using her earned leave credits.
extension of maternity leave.
● Transfer to day work. — As far as A woman employee shall not be dismissed for
practicable, pregnant or nursing reasons of pregnancy, childbirth and childcare
employees shall be assigned to day responsibilities as defined under this Rule.
work, before and after childbirth for a She shall not lose the benefits regarding her
period of at least sixteen (16) weeks employment status, seniority, and access to
which shall be divided between the promotion which may attach to her regular
time before and after childbirth. night work position (Sec. 8, DO 119-12).

Medical certificate issued by Q: What does a night worker’s compensation
competent physician (i.e., include?
Obstetrician/Gynecologist, A: It shall include but not be limited to working
Pediatrician, etc.) is necessary for the time, pay and benefits under the Labor Code,
grant of: as amended and under existing laws, such as
(1) additional periods of service incentive leave, rest day, night
assignment to day work during differential pay, 13th month pay, and other
pregnancy or after childbirth benefits as provided for by law, company policy
other than the period mentioned or CBA (Sec. 9, DO 119-12).
in the foregoing paragraph,
provided that the length of Q: What is the rule on night work schedules?
additional period should not be A: The employer shall at its own initiative,
more than four (4) weeks or for consult the recognized workers'
a longer period as may be representatives or union in the establishment
agreed upon by the employer on the details of the night work schedules. In
and the worker; establishments employing night workers,
(2) extension of maternity leave; consultation shall take place regularly and
and appropriate changes of work schedule shall
(3) clearance to render night work. be agreed upon before it is implemented
● Provision of social security benefits. — (Sec. 10, DO 119-12).
Social security benefits, such as paid
maternity leave shall be provided to Note that, in terms of penalties:
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● Any violation of this Rule shall be
punishable with a fine of not less than SECTION 3. Eligibility for employment. — Any
Thirty Thousand Pesos (P30,000.00) person of either sex, between 15 and 18 years
nor more than Fifty Thousand Pesos of age, may be employed in any non-hazardous
(P50,000.00) or imprisonment of not work. No employer shall discriminate against
less than six (6) months or both, at the such person in regard to terms and conditions
discretion of the court. If the offense is of employment on account of his age.
committed by a corporation, trust, firm,
partnership or association or other For purposes of this Rule, a non-hazardous work
or undertaking shall mean any work or activity in
entity, the penalty shall be imposed
which the employee is not exposed to any risk
upon the guilty officer or officers of which constitutes an imminent danger to his
such corporation, trust, firm, safety and health. The Secretary of Labor and
partnership or association, or entity Employment shall from time to time publish a
(Sec. 11, DO 119-12). list of hazardous work and activities in which
persons 18 years of age and below cannot
employed.
C. MINORS

RA 7610 (Anti-Child Abuse Act), Sec. 12 as
Arts. 137-138, Labor Code (As amended by
amended by RA 7658
RA 10151)
Sec. 12. Employment of Children. — Children
ARTICLE 137. Minimum Employable Age. — below fifteen (15) years of age shall not be
(a) No child below fifteen (15) years of age shall employed except:
be employed, except when he works directly
under the sole responsibility of his parents or 1) When a child works directly under the sole
guardian, and his employment does not in any responsibility of his parents or legal guardian
way interfere with his schooling. and where only members of the employer's
(b) Any person between fifteen (15) and family are employed: Provided, however, That
eighteen (18) years of age may be employed for his employment neither endangers his life,
such number of hours and such periods of the safety, health and morals, nor impairs his
day as determined by the Secretary of Labor and normal development; Provided , further, That the
Employment in appropriate regulations. parent or legal guardian shall provide the said
(c) The foregoing provisions shall in no case minor child with the prescribed primary and/or
allow the employment of a person below secondary education; or
eighteen (18) years of age in an undertaking
which is hazardous or deleterious in nature as 2) Where a child's employment or participation
determined by the Secretary of Labor and in public entertainment or information through
Employment.
cinema, theater, radio or television is essential:
Provided, The employment contract is
concluded by the child's parents or legal
ARTICLE 138. Prohibition against Child
guardian, with the express agreement of the
Discrimination. — No employer shall
child concerned, if possible, and the approval of
discriminate against any person in respect to
the Department of Labor and Employment: and
terms and conditions of employment on
Provided, That the following requirements in all
account of his age.
instances are strictly complied with:
(a) The employer shall ensure the protection,
health, safety, morals and normal development
Omnibus Rules: Book III, Rule XII, Secs. 2-3 of the child;
(b) The employer shall institute measures to
SECTION 2. Employable age. — Children below prevent the child's exploitation or discrimination
fifteen (15) years of age may be allowed to work taking into account the system and level of
under the direct responsibility of their parents or remuneration, and the duration and arrangement
guardians in any non-hazardous undertaking of working time; and
where the work will not in any way interfere with (c) The employer shall formulate and
their schooling. In such cases, the children shall implement, subject to the approval and
not be considered as employees of the supervision of competent authorities, a
employers or their parents or guardians. continuing program for training and skills
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acquisition of the child. health, safety and
morals of the child;
In the above exceptional cases where any such (ii) The employer shall
child may be employed, the employer shall first institute measures to
secure, before engaging such child, a work
prevent the child's
permit from the Department of Labor and
Employment which shall ensure observance of exploitation or
the above requirements. discrimination taking
into account the
The Department of Labor and Employment shall system and level of
promulgate rules and regulations necessary for remuneration, and the
the effective implementation of this Section." duration and
arrangement of
working time; and
RA 9231 (iii) The employer shall
Recall: formulate and
implement, subject to
GENERAL RULE: Children below 15 years the approval and
old cannot be employed. supervision of
competent
EXCEPTIONS: authorities, a
(1) When a child works directly under continuing program
the sole responsibility of his parents for training and skill
or legal guardian and where only acquisition of the
members of the employer's family child.
are employed
(a) Provided, however, that his Before engaging child, secure a work permit
employment neither from the Department of Labor and
endangers his life, safety and Employment.
health and morals, nor
impairs his normal Absolute Prohibition: Child models in
development commercials/ads promoting alcoholic
(b) Provided, further, that the beverages, intoxicating drinks, tobacco and
parent or legal guardian shall its byproducts, and violence.
provide the said minor child
with the prescribed primary Hours of Work of a Working Child
and/or secondary education
(2) When a child's employment or Age Hours of Work
participation in public &
entertainment or information Below 15 Not more than
through cinema, theater, radio or 20 hours a week / 4 hours a
television is essential day
(a) Provided, the employment
Not allowed to work
contract concluded by the
between
child's parent or guardian,
8:00 PM-6:00 AM
with the express agreement
of the child concerned, if 15 years old Not more than
possible, and the approval of
and below 40 hours a week / 8 hours a
the Department of Labor and 18 day
Employment
(b) Provided, that the following Not allowed to work
requirements in all instances between
are strictly complied with: 10:00 PM-6:00 AM
(i) The employer shall
ensure the protection,

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Worst Forms of Child Labor components and the like, or to
1. All forms of slavery, as defined under extreme temperatures, noise
the "Anti-trafficking in Persons Act of levels, or vibrations
2003", or practices similar to slavery g. Is performed under particularly
such as sale and trafficking of difficult conditions
children, debt bondage and serfdom h. Exposes the child to biological
and forced or compulsory labor, agents such as bacteria, fungi,
including recruitment of children for viruses, protozoans,
use in armed conflict nematodes and other parasites
2. The use, procuring, offering or i. Involves the manufacture or
exposing of a child for prostitution, for handling of explosives and
the production of pornography or for other pyrotechnic products
pornographic performances
3. The use, procuring or offering of a SECTION 1. Section 2 of Republic Act No. 7610,
child for illegal or illicit activities, as amended, otherwise known as the "Special
including the production and Protection of Children Against Child Abuse,
trafficking of dangerous drugs and Exploitation and Discrimination Act", is hereby
volatile substances prohibited under amended to read as follows:
existing laws
SEC. 2. Declaration of State Policy and
4. Work which, by its nature or the Principles. — It is hereby declared to be the
circumstances in which it is carried policy of the State to provide special protection
out, is hazardous or likely to be to children from all forms of abuse, neglect,
harmful to the health, safety or morals cruelty, exploitation and discrimination, and
of children, such that it: other conditions prejudicial to their development
a. Debases, degrades or demeans including child labor and its worst forms;
the intrinsic worth and dignity provide sanctions for their commission and
of a child as a human being carry out a program for prevention and
b. Exposes the child to physical, deterrence of and crisis intervention in
situations of child abuse, exploitation and
emotional or sexual abuse, or
discrimination. The State shall intervene on
is found to be highly stressful behalf of the child when the parent, guardian,
psychologically or may teacher or person having care or custody of the
prejudice morals child fails or is unable to protect the child
c. Is performed underground, against abuse, exploitation and discrimination
underwater or at dangerous or when such acts against the child are
heights committed by the said parent, guardian, teacher
d. Involves the use of dangerous or person having care and custody of the same.

machinery, equipment and
It shall be the policy of the State to protect and
tools such as power-driven or
rehabilitate children gravely threatened or
explosive power-actuated endangered by circumstances which affect or
tools will affect their survival and normal
e. Exposes the child to physical development and over which they have no
danger such as, but not limited control.
to the dangerous feats of
balancing, physical strength or The best interests of children shall be the
contortion, or which requires paramount consideration in all actions
the manual transport of heavy concerning them, whether undertaken by public
or private social welfare institutions, courts of
loads
law, administrative authorities, and legislative
f. Is performed in an unhealthy bodies, consistent with the principle of First Call
environment exposing the child for Children as enunciated in the United Nations
to hazardous working Convention on the Rights of the Child. Every
conditions, elements, effort shall be exerted to promote the welfare of
substances, co-agents or children and enhance their opportunities for a
processes involving ionizing, useful and happy life.
radiation, fire, flammable
substances, noxious
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SECTION 2. Section 12 of the same Act, as SEC. 12-A. Hours of Work of a Working Child. —
amended, is hereby further amended to read as Under the exceptions provided in Section 12 of
follows: this Act, as amended:
SEC. 12. Employment of Children. — Children
below fifteen (15) years of age shall not be (1) A child below fifteen (15) years of age may
employed except: be allowed to work for not more than twenty
1) When a child works directly under the sole (20) hours a week: Provided, That the work shall
responsibility of his/her parents or legal not be more than four (4) hours at any given
guardian day;
and where only members of his/her family are
employed: Provided, however, That his/her (2) A child fifteen (15) years of age but below
employment neither endangers his/her life, eighteen (18) shall not be allowed to work for
safety, health, and morals, nor impairs his/her more than eight (8) hours a day, and in no case
normal development: Provided, further, That the beyond forty (40) hours a week;
parent or legal guardian shall provide the said
child with the prescribed primary and/or (3) No child below fifteen (15) years of age shall
secondary education; or be allowed to work between eight o'clock in the
evening and six o'clock in the morning of the
2) Where a child's employment or participation following day and no child fifteen (15) years of
in public entertainment or information through age but below eighteen (18) shall be allowed to
cinema, theater, radio, television or other forms work between ten o'clock in the evening and six
of media is essential: Provided, That the o'clock in the morning of the following day.
employment contract is concluded by the child's
parents or legal guardian, with the express SEC. 12-B. Ownership, Usage and
agreement of the child concerned, if possible, Administration of the Working Child's Income. —
and the approval of the Department of Labor The wages, salaries, earnings and other income
and Employment: Provided, further, That the of the working child shall belong to him/her in
following requirements in all instances are ownership and shall be set aside primarily for
strictly complied with: his/her support, education or skills acquisition
(a) The employer shall ensure the protection, and secondarily to the collective needs of the
health, safety, morals and normal development family: Provided, That not more than twenty
of the child; percent (20%) of the child's income may be used
(b) The employer shall institute measures to for the collective needs of the family.
prevent the child's exploitation or discrimination
taking into account the system and level of The income of the working child and/or the
remuneration, and the duration and arrangement property acquired through the work of the child
of working time; and shall be administered by both parents. In the
"(c) The employer shall formulate and absence or incapacity of either of the parents,
implement, subject to the approval and the other parent shall administer the same. In
supervision of competent authorities, a case both parents are absent or incapacitated,
continuing program for training and skills the order of preference on parental authority as
acquisition of the child. provided for under the Family Code shall apply.

In the above-exceptional cases where any such SEC. 12-C. Trust Fund to Preserve Part of the
child may be employed, the employer shall first Working Child's Income. — The parent or legal
secure, before engaging such child, a work guardian of a working child below eighteen (18)
permit from the Department of Labor and years of age shall set up a trust fund for at least
Employment which shall ensure observance of thirty percent (30%) of the earnings of the child
the above requirements. whose wages and salaries from work and other
income amount to at least two hundred
For purposes of this Article, the term "child" thousand pesos (P200,000.00) annually, for
shall apply to all persons under eighteen (18) which he/she shall render a semi-annual
years of age. " accounting of the fund to the Department of
Labor and Employment, in compliance with the

provisions of this Act. The child shall have full
SECTION 3. The same Act, as amended, is control over the trust fund upon reaching the
hereby further amended by adding new sections age of majority.
to
be denominated as Sections 12-A, 12-B, 12-C, SEC. 12-D. Prohibition Against Worst Forms of
and 12-D to read as follows: Child Labor. — No child shall be engaged in the
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worst forms of child labor. The phrase "worst SECTION 4. Section 13 of the same Act is
forms of child labor" shall refer to any of the hereby amended to read as follows:
following:
SEC. 13. Access to Education and Training for
(1) All forms of slavery, as defined under the Working Children. — "a) No child shall be
"Anti-trafficking in Persons Act of 2003", or deprived of formal or non-formal education. In
practices similar to slavery such as sale and all cases of employment allowed in this Act, the
trafficking of children, debt bondage and employer shall provide a working child with
serfdom and forced or compulsory labor, access to at least primary and secondary
including recruitment of children for use in education.
armed conflic t; or
b) To ensure and guarantee the access of the
(2) The use, procuring, offering or exposing of a working child to education and training, the
child for prostitution, for the production of Department of Education (DEPED) shall: (1)
pornography or for pornographic performances ; formulate, promulgate, and implement relevant
or and effective course designs and educational
programs; (2) conduct the necessary training for
(3) The use, procuring or offering of a child for the implementation of the appropriate
illegal or illicit activities, including the curriculum for the purpose; (3) ensure the
production and trafficking of dangerous drugs availability of the needed educational facilities
and volatile substances prohibited under and materials; and (4) conduct continuing
existing laws; or research and development program for the
necessary and relevant alternative education of
(4) Work which, by its nature or the the working child.
circumstances in which it is carried out, is
hazardous or likely to be harmful to the health, c) The DEPED shall promulgate a course design
safety or morals of children, such that it: under its non-formal education program aimed
a) Debases, degrades or demeans the intrinsic at promoting the intellectual, moral and
worth and dignity of a child as a human being; vocational efficiency of working children who
or have not undergone or finished elementary or
b) Exposes the child to physical, emotional or secondary education. Such course design shall
sexual abuse, or is found to be highly stressful integrate the learning process deemed most
psychologically or may prejudice morals; or effective under given circumstances.
c) Is performed underground, underwater or at

dangerous heights; or
d) Involves the use of dangerous machinery, SECTION 5. Section 14 of the same Act is
equipment and tools such as power-driven or hereby amended to read as follows:
explosive power-actuated tools; or
e) Exposes the child to physical danger such as, SEC. 14. Prohibition on the Employment of
but not limited to the dangerous feats of Children in Certain Advertisements. — No child
balancing, physical strength or contortion, or shall be employed as a model in any
which requires the manual transport of heavy advertisement directly or indirectly promoting
loads; or alcoholic beverages, intoxicating drinks, tobacco
f) Is performed in an unhealthy environment and its byproducts, gambling or any form of
exposing the child to hazardous working violence or pornography.
conditions, elements, substances, co-agents or

processes involving ionizing, radiation, fire,
flammable substances, noxious components SECTION 6. Section 16 of the same Act, is
and the like, or to extreme temperatures, noise hereby amended to read as follows:
levels, or vibrations; or
g) Is performed under particularly difficult SEC. 16. Penal Provisions. —
conditions; or a) Any employer who violates Sections 12, 12-A,
h) Exposes the child to biological agents such and Section 14 of this Act, as amended, shall be
as bacteria, fungi, viruses, protozoans, penalized by imprisonment of six (6) months
nematodes and other parasites; or and one (1) day to six (6) years or a fine of not
i) Involves the manufacture or handling of less than Fifty thousand pesos (P50,000.00) but
explosives and other pyrotechnic products." not more than Three hundred thousand pesos
(P300,000.00) or both at the discretion of the

court.

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b) Any person who violates the provision of violated any of the provisions of this Act more
Section 12-D of this Act or the employer of the than three (3) times. He/she shall likewise order
subcontractor who employs, or the one who the immediate closure of such firm or
facilitates the employment of a child in establishment if:
hazardous work, shall suffer the penalty of a (1) The violation of any provision of this Act has
fine of not less than One hundred thousand resulted in the death, insanity or serious
pesos (P100,000.00) but not more than One physical injury of a child employed in such
million pesos (P1,000,000.00), or imprisonment establishment; or
of not less than twelve (12) years and one (1) (2) Such firm or establishment is engaged or
day to twenty (20) years, or both such fine and employed in prostitution or in obscene or lewd
imprisonment at the discretion of the court. shows.

c) Any person who violates Sections 12-D(1) h) In case of such closure, the employer shall be
and 12-D(2) shall be prosecuted and penalized required to pay the employee(s) the separation
in accordance with the penalty provided for by pay and other monetary benefits provided for by
R.A. 9208 otherwise known as the law.
"Anti-trafficking in Persons Act of 2003":

Provided, That such penalty shall be imposed in
its maximum period. SECTION 7. The same Act is hereby further
amended by adding a new section to be
d) Any person who violates Section 12-D(3) denominated as Section 16-A, to read as
shall be prosecuted and penalized in follows:
accordance with R.A. 9165, otherwise known as
the "Comprehensive Dangerous Drugs Act of SEC. 16-A. Trust Fund from Fines and Penalties.
2002": Provided, That such penalty shall be — The fine imposed by the court shall be treated
imposed in its maximum period. as a Trust Fund, administered by the
Department of Labor and Employment and
e) If a corporation commits any of the violations disbursed exclusively for the needs, including
aforecited, the board of directors/trustees and the costs of rehabilitation and reintegration into
officers, which include the president, treasurer the mainstream of society of the working
and secretary of the said corporation who children who are victims of the violations of this
participated in or knowingly allowed the Act, and for the programs and projects that will
violation, shall be penalized accordingly as prevent acts of child labor.
provided for under this Section.

f) Parents, biological or by legal fiction, and legal SECTION 8. Section 27 of the same Act is
guardians found to be violating Sections 12, hereby amended to read as follows:
12-A, 12-B and 12-C of this Act shall pay a fine
of not less than Ten thousand pesos SEC. 27. Who May File a Complaint. —
(P10,000.00) but not more than One hundred Complaints on cases of unlawful acts
thousand pesos (P100,000.00), or be required to committed against children as enumerated
render community service for not less than herein may be filed by the following:
thirty (30) days but not more than one (1) year, (a) Offended party;
or both such fine and community service at the (b) Parents or guardians;
discretion of the court: Provided, That the (c) Ascendant or collateral relative within the
maximum length of community service shall be third degree of consanguinity;
imposed on parents or legal guardians who (d) Officer, social worker or representative of a
have violated the provisions of this Act three (3) licensed child-caring institution;
times: Provided, further, That in addition to the (e) Officer or social worker of the Department of
community service, the penalty of imprisonment Social Welfare and Development;
of thirty (30) days but not more than one (1) (f) Barangay chairman of the place where the
year or both at the discretion of the court, shall violation occurred, where the child is residing
be imposed on the parents or legal guardians or employed; or
who have violated the provisions of this Act (g) At least three (3) concerned, responsible
more than three (3) times. citizens where the violation occurred.

g) The Secretary of Labor and Employment or
his/her duly authorized representative may, after SECTION 9. The same Act is hereby further
due notice and hearing, order the closure of any amended by adding new sections to Section 16
business firm or establishment found to have to be denominated as Sections 16-A, 16-B and
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16-C to read as follows: D. HOUSEHELPERS

SEC. 16-A. Jurisdiction. — The family courts
shall have original jurisdiction over all cases RA 10361 (Kasambahay Law)
involving offenses punishable under this Act:
Provided, That in cities or provinces where there SECTION 1. Short Title. - This Act shall be
are no family courts yet, the regional trial courts known as the "Domestic Workers Act" or "Batas
and the municipal trial courts shall have Kasambahay".
concurrent jurisdiction depending on the
penalties prescribed for the offense charged.
SECTION 2. Declaration of Policies. — It is
The preliminary investigation of cases filed hereby declared that:
under this Act shall be terminated within a
period of thirty (30) days from the date of filing. (a) The State strongly affirms labor as a primary
social force and is committed to respect,
If the preliminary investigation establishes a promote, protect and realize the fundamental
prima facie case, then the corresponding principles and rights at work including, but not
information shall be filed in court within forty limited to, abolition of child labor, elimination of
eight (48) hours from the termination of the all forms of forced labor, discrimination in
investigation. employment and occupation, and trafficking in
persons, especially women and children;
Trial of cases under this Act shall be terminated
by the court not later than ninety (90) days from (b) The State adheres to internationally
the date of filing of information. Decision on accepted working conditions for workers in
said cases shall be rendered within a period of general, and establishes labor standards for
fifteen (15) days from the date of submission of domestic workers in particular, towards decent
the case. employment and income, enhanced coverage of
social protection, respect for human rights and
SEC. 16-B. Exemptions from Filing Fees. — strengthened social dialogue;
When the victim of child labor institutes a
separate civil action for the recovery of civil (c) The State recognizes the need to protect the
damages, he/she shall be exempt from payment rights of domestic workers against abuse,
of filing fees. harassment, violence, economic exploitation
and performance of work that is hazardous to
SEC. 16-C. Access to Immediate Legal, Medical their physical and mental health; and
and Psycho-Social Services. — The working
child shall have the right to free legal, medical (d) The State, in protecting domestic workers
and psycho-social services to be provided by the and recognizing their special needs to ensure
State. safe and healthful working conditions, promotes
gender-sensitive measures in the formulation
and implementation of policies and programs
SECTION 10. Implementing Rules and affecting the local domestic work.
Regulations. — The Secretary of Labor and
Employment, in coordination with the
Committees on Labor and Employment of both SECTION 3. Coverage. — This Act applies to all
Houses of Congress, shall issue the necessary domestic workers employed and working within
Implementing Rules and Regulations (IRR) to the country.
effectively implement the provisions of this Act,
in consultation with concerned public and
private sectors, within sixty (60) days from the SECTION 4. Definition of Terms. — As used in
effectivity of this Act. this Act, the term:

(a) Debt bondage refers to the rendering of
service by the domestic worker as security or

payment for a debt where the length and nature
of service is not clearly defined or when the
value of the service is not reasonably applied in
the payment of the debt.

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(b) Deployment expenses refers to expenses include at least three (3) adequate meals a day
that are directly used for the transfer of the and humane sleeping arrangements that ensure
domestic worker from place of origin to the safety.
place of work covering the cost of
transportation. Advances or loans by the The employer shall provide appropriate rest and
domestic worker are not included in the assistance to the domestic worker in case of
definition of deployment expenses. illnesses and injuries sustained during service
without loss of benefits.
(c) Domestic work refers to work performed in
or for a household or households. At no instance shall the employer withdraw or
hold in abeyance the provision of these basic
(d) Domestic worker or "Kasambahay" refers to necessities as punishment or disciplinary action
any person engaged in domestic work within an to the domestic worker.
employment relationship such as, but not

limited to, the following: general househelp,
nursemaid or "yaya", cook, gardener, or laundry SECTION 7. Guarantee of Privacy. — Respect for
person, but shall exclude any person who the privacy of the domestic worker shall be
performs domestic work only occasionally or guaranteed at all times and shall extend to all
sporadically and not on an occupational basis. forms of communication and personal effects.

The term shall not include children who are This guarantee equally recognizes that the
under foster family arrangement, and are domestic worker is obliged to render
provided access to education and given an satisfactory service at all times.
allowance incidental to education, i.e., "baon",

transportation, school projects and school
activities. SECTION 8. Access to Outside Communication.
— The employer shall grant the domestic worker
(e) Employer refers to any person who engages access to outside communication during free
and controls the services of a domestic worker time: Provided, That in case of emergency,
and is party to the employment contract. access to communication shall be granted even
during work time. Should the domestic worker
(f) Household refers to the immediate members make use of the employer's telephone or other
of the family or the occupants of the house that communication facilities, the costs shall be
are directly provided services by the domestic borne by the domestic worker, unless such
worker. charges are waived by the employer.

(g) Private Employment Agency (PEA) refers to
any individual, legitimate partnership, SECTION 9. Right to Education and Training. —
corporation or entity licensed to engage in the The employer shall afford the domestic worker
recruitment and placement of domestic workers the opportunity to finish basic education and
for local employment. may allow access to alternative learning
systems and, as far as practicable, higher
(h) Working children, as used under this Act, education or technical and vocational training.
refers to domestic workers who are fifteen (15)
years old and above but below eighteen (18) The employer shall adjust the work schedule of
years old. the domestic worker to allow such access to
education or training without hampering the

services required by the employer.
SECTION 5. Standard of Treatment. — The

employer or any member of the household shall
not subject a domestic worker or "kasambahay" SECTION 10. Prohibition Against Privileged
to any kind of abuse nor inflict any form of Information. — All communication and
physical violence or harassment or any act information pertaining to the employer or
tending to degrade the dignity of a domestic members of the household shall be treated as
worker. privileged and confidential, and shall not be
publicly disclosed by the domestic worker

during and after employment. Such privileged
SECTION 6. Board, Lodging and Medical information shall be inadmissible in evidence
Attendance. — The employer shall provide for except when the suit involves the employer or
the basic necessities of the domestic worker to any member of the household in a crime against
/
persons, property, personal liberty and security, identification card, baptismal record or
and chastity. passport.

However, Section 12 (a), (b), (c) and (d) shall be
SECTION 11. Employment Contract — An standard requirements when the employment of
employment contract shall be executed by and the domestic worker is facilitated through the
between the domestic worker and the employer PEA.
before the commencement of the service in a
language or dialect understood by both the The cost of the foregoing shall be borne by the
domestic worker and the employer. The prospective employer or agency, as the case
domestic worker shall be provided a copy of the may be.
duly signed employment contract which must

include the following:
SECTION 13. Recruitment and Finder's Fees. —
(a) Duties and responsibilities of the domestic Regardless of whether the domestic worker was
worker; hired through a private employment agency or a
(b) Period of employment; third party, no share in the recruitment or finder's
(c) Compensation; fees shall be charged against the domestic
(d) Authorized deductions; worker by the said private employment agency
(e) Hours of work and proportionate additional or third party.
payment;

(f) Rest days and allowable leaves;
(g) Board, lodging and medical attention; SECTION 14. Deposits for Loss or Damage. — It
(h) Agreements on deployment expenses, if any; shall be unlawful for the employer or any other
(i) Loan agreement; person to require a domestic worker to make
(j) Termination of employment; and deposits from which deductions shall be made
(k) Any other lawful condition agreed upon by for the reimbursement of loss or damage to
both parties. tools, materials, furniture and equipment in the
household.
The Department of Labor and Employment

(DOLE) shall develop a model employment
contract for domestic workers which shall, at all SECTION 15. Prohibition on Debt Bondage. — It
times, be made available free of charge to shall be unlawful for the employer or any person
domestic workers, employers, representative acting on behalf of the employer to place the
organizations and the general public. The DOLE domestic worker under debt bondage.
shall widely disseminate information to

domestic workers and employers on the use of
such model employment contract. SECTION 16. Employment Age of Domestic
Workers. — It shall be unlawful to employ any
In cases where the employment of the domestic person below fifteen (15) years of age as a
worker is facilitated through a private domestic worker. Employment of working
employment agency, the PEA shall keep a copy children, as defined under this Act, shall be
of all employment contracts of domestic subject to the provisions of Section 10 (A),
workers and shall be made available for paragraph 2 of Section 12-A, paragraph 4 of
verification and inspection by the DOLE. Section 12-D, and Section 13 of Republic Act No.
7610, as amended, otherwise known as the

"Special Protection of Children Against Child
SECTION 12. Pre-Employment Requirement. — Abuse, Exploitation and Discrimination Act.
Prior to the execution of the employment
contract, the employer may require the following Working children shall be entitled to minimum
from the domestic worker: wage, and all benefits provided under this Act.

(a) Medical certificate or a health certificate Any employer who has been sentenced by a
issued by a local government health officer; court of law of any offense against a working
(b) Barangay and police clearance; child under this Act shall be meted out with a
(c) National Bureau of Investigation (NBI) penalty one degree higher and shall be
clearance; and prohibited from hiring a working child.
(d) Duly authenticated birth certificate or if not

available, any other document showing the age
of the domestic worker such as voter's
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SECTION 17. Employer's Reportorial Duties. — shall be paid the applicable minimum wage.
The employers shall register all domestic

workers under their employment in the Registry
of Domestic Workers in the barangay where the SECTION 23. Extent of Duty. — The domestic
employer's residence is located. The worker and the employer may mutually agree for
Department of the Interior and Local the former to temporarily perform a task that is
Government (DILG) shall, in coordination with outside the latter's household for the benefit of
the DOLE, formulate a registration system for another household. However, any liability that
this purpose. will be incurred by the domestic worker on
account of such arrangement shall be borne by

the original employer. In addition, such work
SECTION 18. Skills Training, Assessment and performed outside the household shall entitle
Certification. — To ensure productivity and the domestic worker to an additional payment
assure quality services, the DOLE, through the of not less than the existing minimum wage rate
Technical Education and Skills Development of a domestic worker. It shall be unlawful for the
Authority (TESDA), shall facilitate access of original employer to charge any amount from
domestic workers to efficient training, the said household where the service of the
assessment and certification based on a duly domestic worker was temporarily performed.
promulgated training regulation.

SECTION 24. Minimum Wage. — The minimum
SECTION 19. Health and Safety. — The employer wage of domestic workers shall not be less than
shall safeguard the health and safety of the the following:
domestic worker in accordance with laws, rules (a) Two thousand five hundred pesos
and regulations, with due consideration of the (P2,500.00) a month for those employed in the
peculiar nature of domestic work. National Capital Region (NCR);
(b) Two thousand pesos (P2,000.00) a month

for those employed in chartered cities and first
SECTION 20. Daily Rest Period. — The domestic class municipalities; and
worker shall be entitled to an aggregate daily (c) One thousand five hundred pesos
rest period of eight (8) hours per day (P1,500.00) a month for those employed in
other municipalities.

SECTION 21. Weekly Rest Period. — The After one (1) year from the effectivity of this Act,
domestic worker shall be entitled to at least and periodically thereafter, the Regional
twenty-four (24) consecutive hours of rest in a Tripartite and Productivity Wage Boards
week. The employer and the domestic worker (RTPWBs) shall review, and if proper, determine
shall agree in writing on the schedule of the and adjust the minimum wage rates of domestic
weekly rest day of the domestic worker: workers.
Provided, That the employer shall respect the

preference of the domestic worker as to the
weekly rest day when such preference is based SECTION 25. Payment of Wages. — Payment of
on religious grounds. Nothing in this provision wages shall be made on time directly to the
shall deprive the domestic worker and the domestic worker to whom they are due in cash
employer from agreeing to the following: at least once a month. The employer, unless
(a) Offsetting a day of absence with a particular allowed by the domestic worker through a
rest day; written consent, shall make no deductions from
(b) Waiving a particular rest day in return for an the wages other than that which is mandated by
equivalent daily rate of pay ; law. No employer shall pay the wages of a
(c) Accumulating rest days not exceeding five domestic worker by means of promissory notes,
(5) days; or vouchers, coupons, tokens, tickets, chits, or any
(d) Other similar arrangements. object other than the cash wage as provided for
under this Act.

SECTION 22. Assignment to Non Household The domestic worker is entitled to a thirteenth
Work. — No domestic worker shall be assigned month pay as provided for by law.
to work in a commercial, industrial or

agricultural enterprise at a wage rate lower than
that provided for agricultural or nonagricultural
workers. In such cases, the domestic worker
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SECTION 26. Pay Slip. — The employer shall at or contributions, as provided by law.
all times provide the domestic worker with a
copy of the pay slip containing the amount paid The domestic worker shall be entitled to all
in cash every pay day, and indicating all other benefits under existing laws.
deductions made, if any. The copies of the pay

slip shall be kept by the employer for a period of
three (3) years.. SECTION 31. Rescue and Rehabilitation of
Abused Domestic Workers. — Any abused or

exploited domestic worker shall be immediately
SECTION 27. Prohibition on Interference in the rescued by a municipal or city social welfare
Disposal of Wages. — It shall be unlawful for the officer or a social welfare officer from the
employer to interfere with the freedom of any Department of Social Welfare and Development
domestic worker to dispose of the latter's (DSWD) in coordination with the concerned
wages. The employer shall not force, compel or barangay officials. The DSWD and the DILG shall
oblige the domestic worker to purchase develop a standard operating procedure for the
merchandise, commodities or other properties rescue and rehabilitation of abused domestic
from the employer or from any other person, or workers, and in coordination with the DOLE, for
otherwise make use of any store or services of possible subsequent job placement.
such employer or any other person.

SECTION 32. Termination of Service. — Neither
SECTION 28. Prohibition Against Withholding of the domestic worker nor the employer may
Wages. — It shall be unlawful for an employer, terminate the contract before the expiration of
directly or indirectly, to withhold the wages of the term except for grounds provided for in
the domestic worker. If the domestic worker Sections 33 and 34 of this Act. If the domestic
leaves without any justifiable reason, any unpaid worker is unjustly dismissed, the domestic
salary for a period not exceeding fifteen (15) worker shall be paid the compensation already
days shall be forfeited. Likewise, the employer earned plus the equivalent of fifteen (15) days
shall not induce the domestic worker to give up work by way of indemnity. If the domestic
any part of the wages by force, stealth, worker leaves without justifiable reason, any
intimidation, threat or by any other means unpaid salary due not exceeding the equivalent
whatsoever. fifteen (15) days work shall be forfeited. In
addition, the employer may recover from the

domestic worker costs incurred related to the
SECTION 29. Leave Benefits. — A domestic deployment expenses, if any: Provided, That the
worker who has rendered at least one (1) year of service has been terminated within six (6)
service shall be entitled to an annual service months from the domestic worker's
incentive leave of five (5) days with pay: employment.
Provided, That any unused portion of said
annual leave shall not be cumulative or carried If the duration of the domestic service is not
over to the succeeding years. Unused leaves determined either in stipulation or by the nature
shall not be convertible to cash. of the service, the employer or the domestic
worker may give notice to end the working

relationship five (5) days before the intended
SECTION 30. Social and Other Benefits. —A termination of the service.
domestic worker who has rendered at least one
(1) month of service shall be covered by the The domestic worker and the employer may
Social Security System (SSS), the Philippine mutually agree upon written notice to
Health Insurance Corporation (PhilHealth), and pre-terminate
the Home Development Mutual Fund or the contract of employment to end the
Pag-IBIG, and shall be entitled to all the benefits employment relationship.
in accordance with the pertinent provisions

provided by law.

Premium payments or contributions shall be
shouldered by the employer. However, if the
domestic worker is receiving a wage of Five
thousand pesos (P5,000.00) and above per
month, the domestic worker shall pay the
proportionate share in the premium payments
/
SECTION 33. Termination Initiated by the SECTION 36. Regulation of Private Employment
Domestic Worker. — The domestic worker may Agencies (PEAs). — The DOLE shall, through a
terminate the employment relationship at any system of licensing and regulation, ensure the
time before the expiration of the contract for protection of domestic workers hired through
any of the following causes: the PEAs.

(a) Verbal or emotional abuse of the domestic The PEA shall be jointly and severally liable with
worker by the employer or any member of the the employer for all the wages, wage-related
household; benefits, and other benefits due a domestic
(b) Inhuman treatment including physical abuse worker.
of the domestic worker by the employer or any
member of the household; The provision of Presidential Decree No. 442, as
(c) Commission of a crime or offense against the amended, otherwise known as the "Labor Code
domestic worker by the employer or any member of the Philippines", on qualifications of the PEAs
of the household; with regard to nationality, networth, owners and
(d) Violation by the employer of the terms and officers, office space and other requirements, as
conditions of the employment contract and other well as non transferability of license and
standards set forth under this law; commission of prohibited practices, shall apply.
(e) Any disease prejudicial to the health of the
domestic worker, the employer, or member/s of In addition, PEAs shall have the following
the household; and responsibilities:
(f) Other causes analogous to the foregoing. (a) Ensure that domestic workers are not
charged or levied any recruitment or placement

fees;
SECTION 34. Termination Initiated by the (b) Ensure that the employment agreement
Employer. — An employer may terminate the between the domestic worker and the employer
services of the domestic worker at any time stipulates the terms and conditions of
before the expiration of the contract for any of employment and all the benefits prescribed by
the following causes: this Act;
(c) Provide a pre-employment orientation
(a) Misconduct or willful disobedience by the briefing to the domestic worker and the
domestic worker of the lawful order of the employer about their rights and responsibilities
employer in connection with the former's work; in accordance with this Act;
(b) Gross or habitual neglect or inefficiency by (d) Keep copies of employment contracts and
the domestic worker in the performance of agreements pertaining to recruited domestic
duties; workers which shall be made available during
(c) Fraud or willful breach of the trust reposed by inspections or whenever required by the DOLE
the employer on the domestic worker; or local government officials;
(d) Commission of a crime or offense by the (e) Assist domestic workers with respect to
domestic worker against the person of the complaints or grievances against their
employer or any immediate member of the employers; and
employer's family; (f) Cooperate with government agencies in
(e) Violation by the domestic worker of the terms rescue operations involving abused or exploited
and conditions of the employment contract domestic workers.
and other standards set forth under this law;

(f) Any disease prejudicial to the health of the
domestic worker, the employer, or member/s SECTION 37. Mechanism for Settlement of
of the household; and Disputes. — All labor-related disputes shall be
(g) Other causes analogous to the foregoing. elevated to the DOLE Regional Office having
jurisdiction over the workplace without prejudice

to the filing of a civil or criminal action in
SECTION 35. Employment Certification. — Upon appropriate cases. The DOLE Regional Office
the severance of the employment relationship, shall exhaust all conciliation and mediation
the employer shall issue the domestic worker efforts before a decision shall be rendered.
within five (5) days from request a certificate of Ordinary crimes or offenses committed under
employment indicating the nature, duration of the Revised Penal Code and other special penal
the service and work performance. laws by either party shall be filed with the
regular courts.

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SECTION 38. Information Program. — The DOLE Q: Who is a Kasambahay?
shall, in coordination with the DILG, the SSS, the A: A Kasambahay is any person engaged in
PhilHealth and Pag-IBIG develop and implement domestic work within an employment
a continuous information dissemination relationship such as, but not limited to, the
program on the provisions of this Act, both at following: general househelp, nursemaid or
the national and local level, immediately after "yaya", cook, gardener, or laundry person, but
the enactment of this law. shall exclude any person who performs
domestic work only occasionally or
sporadically and not on an occupational
SECTION 39. "Araw ng mga Kasambahay". —
basis.123
The date upon which the President shall
approve this "Domestic Workers Act" shall be
designated as the "Araw ng mga Kasambahay". The term shall not include children who are
under foster family arrangement, and are
provided access to education and given an
SECTION 40. Penalty. — Any violation of the allowance incidental to education, i.e., "baon",
provisions of this Act declared unlawful shall be transportation, school projects and school
punishable with a fine of not less than Ten activities.
thousand pesos (P10,000.00) but not more than
Forty thousand pesos (P40,000.00) without Q: What are the rights that a Kasambahay is
prejudice to the filing of appropriate civil or
entitled to?
criminal action by the aggrieved party.
A: Kasambahay are entitled to:

SECTION 41. Transitory Provision; First, a kasambahay shall not be subjected to
Non-Diminution of Benefits. — All existing any kind of abuse nor inflict any form of
arrangements between a domestic worker and physical violence or harassment or any act
the employer shall be adjusted to conform to tending to degrade the dignity of a domestic
the minimum standards set by this Act within a worker.124
period of sixty (60) days after the effectivity of
this Act: Provided, That adjustments pertaining Second, a kasambahay shall be provided
to wages shall take effect immediately after the
boarding, lodging, and medical attendance.125
determination and issuance of the appropriate
wage order by the RTWPBs: Provided, further,
That nothing in this Act shall be construed to Third, a kasambahay shall be guaranteed
cause the diminution or substitution of any privacy at all times and this shall extend to all
benefits and privileges currently enjoyed by the forms of communication and personal
domestic worker hired directly or through an effects.126
agency.
Fourth, a kasambahay shall have access to
outside communication.127
SECTION 42. Implementing Rules and

Regulations. — Within ninety (90) days from the
Fifth, a kasambahay shall have the right to
effectivity of this Act, the Secretary of Labor and
Employment, the Secretary of Social Welfare education and training.128
and Development, the Secretary of the Interior
and Local Government, and the Director General Sixth, a kasambahay is entitled to an
of the Philippine National Police, in coordination aggregate daily rest period of 8 hours per
with other concerned government agencies and day.129 Further, s/he shall be entitled to at
accredited non government organizations least 24 consecutive hours of rest in a week.
(NGOs) assisting domestic workers, shall The employer and the domestic worker shall
promulgate the necessary rules and regulations
for the effective implementation of this Act.
123
See Sec. 4, RA 10361.
124
See Sec. 5, RA 10361.
125
See Sec. 6, RA 10361.

126
See Sec. 7, RA 10361.

127
See Sec. 8, RA 10361.
128
See Sec. 9, RA 10361.
129
See Sec. 20, RA 10361.
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agree in writing on the schedule of the weekly temporarily performed tasks.138
rest day of the domestic worker.130
Q: What is the penalty for unlawful acts?
Q: What is the employable age for a A: Any violation of the provisions of this Act
Kasambahay? declared unlawful shall be punishable with a
A: 15 years old and above. fine of not less than P10,000 but not more
than P40,000 without prejudice to the filing of
Q: How is a Kasambahay paid? appropriate civil or criminal action by the
A: Payment of wages shall be made on time aggrieved party.139
directly to the domestic worker to whom they
are due in cash at least once a month. The Q: Can a Kasambahay terminate the contract
employer, unless allowed by the domestic at any time?
worker through a written consent, shall make A: Yes, on the following grounds140:
no deductions from the wages other than that 1. Verbal or emotional abuse of the
which is mandated by law. No employer shall kasambahay by the employer or any
pay the wages of a domestic worker by member of the household;
means of promissory notes, vouchers, 2. Inhuman treatment including physical
coupons, tokens, tickets, chits, or any object abuse of the kasambahay by the
other than the cash wage as provided for employer or any member of the
under this Act. household;
3. Commission of a crime or offense
The domestic worker is entitled to a thirteenth against the kasambahay by the
month pay as provided for by law.131 employer or any member of the
household;
Further, a domestic worker who has rendered 4. Violation by the employer of the terms
at least 1 year of service shall be entitled to an and conditions of the employment
annual service incentive leave of 5 days with contract and other standards set forth
pay.132 A domestic worker who has rendered under the law;
at least 1 month of service shall be covered by 5. Any disease prejudicial to the health of
the SSS, PhilHealth, and Pag-IBIG, and shall be the kasambahay, the employer, or
entitled to all the benefits in accordance with member/s of the household; and
the pertinent provisions provided by law.133 6. Other causes analogous to the
foregoing.
Q: What the specific acts declared unlawful
under the law? Q: Can an Employer terminate the contract at
1. Employment of children below 15 years any time?
of age; A: Yes, on the following grounds141:
2. Withholding of the kasambahay’s 1. Misconduct or willful disobedience by
wages;134 the kasambahay of the lawful order of
3. Interference in the disposal of the the employer in connection with the
kasambahay’s wages;135 former’s work;
4. Requiring kasambahay to make 2. Gross or habitual neglect or inefficiency
deposits for loss or damage;136 by the kasambahay in the performance
5. Placing the kasambahay under debt of duties;
bondage;137 and 3. Fraud or willful breach of the trust
6. Charging another household for reposed by the employer on the
kasambahay;
4. Commission of a crime or offense by
130
See Sec. 21, RA 10361. the kasambahay against the person of
131
See Sec. 25, RA 10361. the employer or any immediate
132
See Sec. 29, RA 10361. member of the employer’s family;
133
See Sec. 30, RA 10361.
134
See Sec. 28, RA 10361. 138
See Sec. 23, RA 10361.
135
See Sec. 27, RA 10361. 139
See Sec. 40, RA 10361.
136
See Sec. 14, RA 10361. 140
See Sec. 33, RA 10361.
137
See Sec. 15, RA 10361. 141
See Sec. 33, RA 10361.
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5. Violation by the kasambahay of the in relation to or in connection with its
terms and conditions of the business, as in its staff houses for its guest or
employment contract and other even for its officers and employees, warrants
standards set forth under the law; the conclusion that such househelper or
6. Any disease prejudicial to the health of domestic servant is and should be considered
the kasambahay, the employer, or as a regular employee of the employer and not
member/s of the household; and as a mere family househelper or domestic
7. Other causes analogous to the servant as contemplated in the Labor Code.
foregoing.
Q: What rules cover the rights of family
Note: Neither the domestic worker nor the drivers?
employer may terminate the contract before A: Civil Code. In Atienza v. Saluta, the Court
the expiration of the term except for grounds discussed that:
provided for in Sections 33 and 34 of the
law.142 Article 141, Chapter III, Book III on
Employment of Househelpers of the Labor
Q: Is a householder in the staff house of an Code provides that family drivers are covered
industrial company a domestic helper or in the term domestic or household service.
regular employee of the said firm? Under the Labor Code, the rules for indemnity
A: S/he is a regular employee. The term in case a family driver is terminated from the
"househelper" is synonymous to the term service shall be governed by Article 149.
"domestic servant" and shall refer to any
person, whether male or female, who renders However, Section 44 of Republic Act No.
services in and about the employer's home 10361, otherwise known as the "Domestic
and which services are usually necessary or Workers Act" or "Batas Kasambahay"
desirable for the maintenance and enjoyment (Kasambahay Law), expressly repealed
thereof, and ministers exclusively to the Chapter III (Employment of Househelpers) of
personal comfort and enjoyment of the the Labor Code, which includes Articles 141
employer's family. and 149 mentioned above.

The criteria is the personal comfort and The Kasambahay Law, on the other hand,
enjoyment of the family of the employer in the made no mention of family drivers in the
home of said employer. While it may be true enumeration of those workers who are
that the nature of the work of a househelper, covered by the law. Section 4(d) of the
domestic servant or laundrywoman in a home Kasambahay Law pertaining to who are included
or in a company staffhouse may be similar in in the enumeration of domestic or household
nature, the difference in their circumstances is help cannot also be interpreted to include family
that in the former instance they are actually drivers because the latter category of worker is
serving the family while in the latter case, clearly not included. It is a settled rule of
whether it is a corporation or a single statutory construction that the express mention
proprietorship engaged in business or of one person, thing, or consequence implies the
industry or any other agricultural or similar exclusion of all others.

pursuit, service is being rendered in the
Due to the express repeal of the Labor Code
staffhouses or within the premises of the
business of the employer. In such instance, provisions pertaining to househelpers, which
they are employees of the company or includes family drivers, by the Kasambahay
employer in the business concerned entitled Law; and the non-applicability of the
to the privileges of a regular employee.143 Kasambahay Law to family drivers, there is a
need to revert back to the Civil Code

The mere fact that the househelper or provisions, particularly Articles 1689, 1697
domestic servant is working within the and 1699, Section 1, Chapter 3, Title VIII, Book
premises of the business of the employer and IV thereof.

See Sec. 32, RA 10361.
142 The reason for reverting back to the Civil Code
See Apex Mining Company v. NLRC and
143 provisions on household service is because,
Remington Industrial v. Castaneda.
/
as discussed earlier, Section 44 of the goods, articles or materials to be processed or
Kasambahay Law expressly repealed Articles fabricated in or about a home and then rebuys
141 to 152 of the Labor Code which deals them after such processing or fabrication, either
with the rights of family drivers. Obviously, an by himself or through some other person.
expressly repealed statute is not anymore

binding for it has no more force and effect.

Department Order No. 5, Series of 1992
Since what were expressly repealed by the

Kasambahay Law were only Articles 141 to
Q: What is the coverage?
152, Chapter III of the Labor Code on
A: These rules apply to any person who
Employment of Househelpers; and the Labor
performs industrial work for an employer,
Code did not repeal the Civil Code provisions
contractor, or subcontractor (Sec. 1, DO 5).
concerning household service which impliedly

includes family drivers as they minister to the
Q: What is Industrial Homework?
needs of a household, the said Civil Code
A: It is a system of production under which
provisions stand. To rule otherwise would
work for an employer or contractor is carried
leave family drivers without even a modicum
out by a homework at his/her home. Materials
of protection. Certainly, that could not have
may or may not be furnished by the employer
been the intent of the lawmakers.
or contractor.

Note: It differs from regular factory production
E. HOMEWORKERS principally in that, it is a decentralized form of
production where there is ordinarily very little
Arts. 151-153, Labor Code supervision or regulation of methods of work
(Sec.2[a], DO 5).
ARTICLE 151. Regulation of Industrial
Homeworkers. — The employment of industrial
Q: Who is an Industrial Homeworker?
homeworkers and field personnel shall be
A: It means a worker who is engaged in
regulated by the government through the
appropriate regulations issued by the Secretary industrial homework (Sec. 2[b], DO 5).
of Labor and Employment to ensure the general
welfare and protection of homeworkers and Q: What is a Home?
field personnel and the industries employing A: It is any room, house, apartment, or other
them. premises used regularly in whole or in part,as
dwelling place, except those situated within
the premises or compound of an employer,
ARTICLE 152. Regulations of Secretary of contractor or subcontractor and the work
Labor. — The regulations or orders to be issued
performed therein is under the active or
pursuant to this Chapter shall be designed to
personal supervision by or for the latter (Sec.
assure the minimum terms and conditions of
employment applicable to the industrial
2[c], DO 5).
homeworkers or field personnel involved.
Q: Who is an employer?
A: An employer is any natural or artificial
ARTICLE 153. Distribution of Homework. — For person, who for his own account or benefit, or
purposes of this Chapter, the "employer" of on behalf of any person residing outside the
homeworkers includes any person, natural or Philippines, directly or indirectly, or through
artificial who, for his account or benefit, or on any employer, agent, contractor,
behalf of any person residing outside the subcontractor, or any other person:
country, directly or indirectly, or through an
(1) Delivers or causes to be delivered any
employee, agent contractor, sub-contractor or
any other person:
goods, articles, or materials to be
(1) Delivers, or causes to be delivered, any processed or fabricated in or about a
goods, articles or materials to be processed or home and thereafter to be returned or
fabricated in or about a home and thereafter to to be disposed of or distributed in
be returned or to be disposed of or distributed in accordance with his direction; or
accordance with his directions; or (2) Sells any (2) Sells any goods, articles, or materials
for the purpose of having such goods
/
or articles processed in or about a Q: Can an employer make deductions from
home and then repurchases them the homeworker’s earnings for value of
himself or through another after such materials which have been lost, destroyed,
processing (Sec. 2[d], DO 5). soiled, or otherwise damaged?
A: No. No employer, contractor, or
Q: Can homeworkers organize themselves? subcontractor shall make any dedication from
A: Yes. Homeworkers have the right to form, the homeworker’s earnings for the value of
join, or assist organizations of their own materials which have been lost, destroyed,
choosing, in accordance with the law (Sec. 3, soiled, or otherwise damages, unless the
DO 5). following conditions are met:
(1) the homeworker concerned is clearly
REGISTRATION OF HOMEWORKERS’ shown to be responsible for the loss or
ORGANIZATION (Sec. 4, DO 5) damage;
● Any applicant homeworker (2) the homeworker is given reasonable
organization or association shall opportunity to show cause why deductions
acquire legal personality, and shall be should not be made;
entitled to the rights and privileges (3) the amount of deduction is fair and
granted by law to legitimate labor reasonable and shall not exceed the actual
organizations upon the issuance of the loss or damage; and
certificate of registration based on the (4) the deduction is made at such rate that the
following requirements: amount deducted does not exceed 20% of the
homeworker’s earnings in a week (Sec. 8, DO
5).

Q: What are the conditions for payment of
work?
A: (1) The employer may require the
homeworker to redo the work which has been
improperly executed without having to pay the
stipulated rate again; and
(2) An employer, contractor, or subcontractor
need not pay the homeworker for any work
which has been done on goods and articles
which have been returned for reasons
Q: How are homeworkers paid? attributable to the fault of the homeworker
A: Immediately upon receipt of the finished (Sec. 9, DO 5).
goods or articles, the employer shall pay the
homeworker or the contractor or Q: What are the duties of employer,
subcontractor, as the case may be, for the contractor, and subcontractor?
work performed less corresponding A: Whenever an employer shall contract with
homeworkers’ share of SSS, Medicare, and another for performance of the employer’s
ECC premium contributions which shall be work, it shall be the duty of such employer to
remitted by the contractor/subcontractor or provide in such contract that the employees or
employer to the SSS with the employer’s homeworkers of the contractor and the latter’s
share. However, where payment is made to a subcontractor shall be paid in accordance
contractor or subcontractor, the homeworker with the provisions of this Rule. In the event
shall likewise be paid immediately after the that such contractor or subcontractor fails to
goods or articles have been collected from pay the wages or earnings of his employees
the workers (Sec. 6, DO 5). or homeworkers as specified in this Rule, such
employer shall be jointly and severally liable
with the contractor or subcontractor to the
workers of the latter, to the extent that such
work is performed under such contract, in the
same manner as if the employees or
homeworkers were directly engaged by the
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employer. The employer, contractor, or SECTION 5. Equal Opportunity for Employment.
subcontractor shall assist the homeworkers in - No disabled persons shall be denied access to
the maintenance of basic safe and healthful opportunities for suitable employment. A
working conditions at the homeworker’s place qualified disabled employee shall be subject to
of work (Sec. 11, DO 5). the same terms and conditions of employment
and the same compensation, privileges,
Q: What are the prohibitions for homework? benefits, fringe benefits, incentives or
A: No homework shall be performed on the allowances as a qualified able-bodied person.
following: (1) explosives, fireworkers, and Five percent (5%) of all casual, emergency and
contractual positions in the Department of
articles of like character; (2) drugs and
Social Welfare and Development; Health;
poisons; and (3) other articles, the processing Education, Culture and Sports; and other
of which requires exposure to toxic government agencies, offices or corporations
substances (Sec. 13, DO 5). engaged in social development shall be
reserved for disabled persons.

F. HANDICAPPED
SECTION 6. Sheltered Employment. - If suitable
employment for disabled persons cannot be
RA 7277 (Magna Carta for the Disabled), found through open employment as provided in
Secs. 4(a-d, i), 5-11, and 32-33 the immediately preceding Section, the State
shall endeavor to provide it by means of
SECTION 4. Definition of Terms. — For purposes sheltered employment. In the placement of
of this Act, these terms are defined as follows: disabled persons in sheltered employment, it
shall accord due regard to the individual
(a) Disabled Persons are those suffering from qualities, vocational goals and inclinations to
restriction of different abilities, as a result of a ensure a good working atmosphere and efficient
mental, physical or sensory impairment, to production.
perform an activity in the manner or within the
range considered normal for a human being;
SECTION 7. Apprenticeship. - Subject to the
(b) Impairment is any loss, diminution or provision of the Labor Code as amended,
aberration of psychological, physiological, or disabled persons shall be eligible as apprentices
anatomical structure of function; or learners; Provided, That their handicap is not
much as to effectively impede the performance
(c) Disability shall mean (1) a physical or mental of job operations in the particular occupation for
impairment that substantially limits one or more which they are hired; Provided, further, That after
psychological, physiological or anatomical the lapse of the period of apprenticeship if
function of an individual or activities of such found satisfactory in the job performance, they
individual; (2) a record of such an impairment; or shall be eligible for employment.
(3) being regarded as having such an
impairment;
SECTION 8. Incentives for Employer. - (a) To
(d) Handicap refers to a disadvantage for a encourage the active participation of the private
given individual resulting from an impairment or sector in promoting the welfare of disabled
a disability, that limits or prevents the functions persons and to ensure gainful employment for
or activity, that is considered normal given the qualified disabled persons, adequate incentives
age and sex of the individual; shall be provided to private entities which
employ disabled persons.
X X X
(b) Private entities that employ disabled persons
(i) Sheltered Employment refers to the provision
who meet the required skills or qualifications,
of productive work for disabled persons through
either as regular employee, apprentice or
workshop providing special facilities, income
learner, shall be entitled to an additional
producing projects or homework schemes with
deduction, from their gross income, equivalent
a view to given them the opportunity to earn a
to twenty-five percent (25%) of the total amount
living thus enabling them to acquire a working
paid as salaries and wages to disabled persons:
capacity required in open industry.
Provided, however, That such entities present
proof as certified by the Department of Labor

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and Employment that disabled person are under SECTION 11. Implementing Rules and
their employ. Provided, further, That the disabled Regulations. - The Department of Labor and
employee is accredited with the Department of Employment shall in coordination with the
Labor and Employment and the Department of Department of Social Welfare and Development
Health as to his disability, skills and (DSWD) and National Council for the Welfare of
qualifications. Disabled Persons (NCWDP), shall promulgate
the rules and regulations necessary to
© Private entities that improved or modify their implement the provision under this Chapter.
physical facilities in order to provide reasonable
accommodation for disabled persons shall also
be entitled to an additional deduction from their SECTION 32. Discrimination on Employment. -
net taxable income, equivalent to fifty percent No entity, whether public or private, shall
(50%) of the direct costs of the improvements or discriminate against a qualified disabled person
modifications. This section, however, does not by reason of disability in regard to job
apply to improvements or modifications of application procedures, the hiring, promotion, or
facilities required under Batas Pambansa Bilang discharge of employees, employee
344.. compensation, job training, and other terms,
conditions, and privileges of employment. The

following constitute acts of discrimination:
SECTION 9. Vocational Rehabilitation. -
Consistent with the principle of equal (a). Limiting, segregating or classifying a
opportunity for disabled workers and workers in disabled job applicant in such a manner that
general, the State shall take appropriate adversely affects his work opportunities;
vocational rehabilitation measures that shall
serve to develop the skills and potential of (b). Using qualification standards, employment
disabled persons and enable them to compete tests or other selection criteria that screen out
favorably for available productive and or tend to screen out a disabled person unless
remunerative employment opportunities in the such standards, tests or other selection criteria
labor market. The State shall also take are shown to be job related for the position on
measures to ensure the provisions of vocational question and are consistent with business
rehabilitation and livelihood services for necessity;
disabled persons in the rural areas. In addition, it
shall promote cooperation and coordination (c). Utilizing standards, criteria, or methods of
between the government and non-government administration that:
organization and other private entities engaged 1). have the effect of discrimination on the basis
in vocational rehabilitation activities. The of disability; or
Department of Social Welfare and Development 2). perpetuate the discrimination of others who
shall design and implement training programs are subject to common administrative control;
that will provide disabled persons with
vocational skills to enable them to engage in (d). Providing less compensation, such as
livelihood activities or obtain gainful salary, wage or other forms of remuneration and
employment. The Department of Labor and fringe benefits, to a qualified disabled employee,
Employment shall likewise design and conduct by reason of his disability, than the amount to
training programs geared towards providing which a non-disabled person performing the
disabled persons with skills for livelihood. same work is entitled;

(e). Favoring a non-disabled employee over a
SECTION 10. Vocational Guidance and qualified disabled employee with respect to
Counselling. - The Department of Social Welfare promotion, training opportunities, study and
and Development shall implement measures scholarship grants, solely on account of the
providing and evaluating vocational guidance latter’s disability;
and counselling to enable disabled persons to
secure, retain and advance in employment. It (f). Re-assigning or transferring a disabled
shall ensure the availability and training employee to a job or position he cannot perform
counsellors and other suitability qualified staff by reason of his disability;
responsible for the vocational guidance and
counselling of disabled persons. (g). Dismissing or terminating the services of a
disabled employee by reason of his disability
unless the employer can prove that he impairs
the satisfactory performance of the work
/
involve to the prejudice of the business entities; not create unfair competition in labor costs or
Provided, however, That the employer first impair or lower working standards.
sought provide reasonable accommodations for

disabled persons;
ARTICLE 80. Employment Agreement. — Any
(h). Failing to select or administer in the employer who employs handicapped workers
effective manner employment tests which shall enter into an employment agreement with
accurately reflect the skills, aptitude or other them, which agreement shall include:
factor of the disabled applicant or employee 1. The names and addresses of the handicapped
that such test purports to measure, rather than workers to be employed;
the impaired sensory, manual or speaking skills
of such applicant or employee, if any; and X X X

(i). Excluding disabled persons from 3. The duration of employment period; and
membership in labor unions or similar 4. The work to be performed by handicapped
organization. workers.

The employment agreement shall be subject to
inspection by the Secretary of Labor or his duly
SECTION 33. Employment Entrance authorized representative.
Examination. - Upon an offer of employment, a

disabled applicant may be subjected to medical
examination, on the following occasions: ARTICLE 81. Eligibility for Apprenticeship. —
Subject to the appropriate provisions of this
(a). all entering employees are subjected to Code, handicapped workers may be hired as
such an examination regardless of disability; apprentices or learners if their handicap is not
such as to effectively impede the performance
(b). information obtained during the medical of job operations in the particular occupations
condition or history of the applicant is collected for which they are hired.
and maintained on separate forms and in
separate medical files and is treated as a

confidential medical record, Provided, however,
That: Omnibus Rules: Book II, Rule VIII
1). supervisors and managers may be informed SECTION 1. Definition of terms.
regarding necessary restrictions on the work or
duties of the employees and necessary X X X
accommodations;
2). first aid and safety personnel my be (b) Employment agreement is the contract of
informed, when appropriate, if the disability employment entered into between the employer
might require emergency treatment; and the handicapped worker.
3). government officials investigating
compliance with this Act shall be provided
relevant information on request; and X X X
4). the results of such examination are used
only accordance with this Act. SECTION 4. Copy of agreement to be furnished
to Division. - A copy each of the employment
agreement shall be furnished by the employer to

the handicapped worker and the Apprenticeship
Arts. 78-81, Labor Code Division involved. The Secretary of Labor and
ARTICLE 78. Definition. — Handicapped Employment or his duly authorized
workers are those whose earning capacity is representative may inspect from time to time
impaired by age or physical or mental deficiency the working conditions of handicapped workers
or injury. to verify compliance by the parties with their
employment agreement.

ARTICLE 79. When Employable. — Handicapped
workers may be employed when their SECTION 5. Eligibility for apprenticeship. -
employment is necessary to prevent curtailment Handicapped workers shall not be precluded
of employment opportunities and when it does from employment as apprentices or learners if
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their handicap is not such as to effectively terms, conditions, and privileges of
impede the performance of job operations in the employment.
particular trade or occupation which is the
subject of the apprenticeship or learnership The following constitutes acts fo
program. discrimination:
(1) Limiting, segregating or

classifying a disabled job
RA 7277
applicant in such a manner that
● The Magna Carta for Disabled Persons
adversely affects his work
ensures equal opportunities for
opportunities;
disabled persons and prohibits
(2) Using qualification standards,
discrimination against them.
employment test or other
● Qualified Disabled Employee. - It
selection criteria that saeen out
provides for “equal opportunity for
or tend to screen out a disabled
employment” by stating that, no
person unless such standards,
disabled person shall be denied
test or other selection criteria
access to opportunities for suitable
are shown to be job-related for
employment. A qualified disabled
the position in question and are
employee then shall be subject to the
consistent with business
same terms and conditions of
necessity;
employment and the same
(3) Utilizing standards, criteria, or
compensation, privileges, benefits,
methods of administration that:
fringe benefits, incentives, or
(1) have the effect of
allowances as a qualified able-bodies.
discrimination on the basis of

disability; or

(2) perpetuate the
Note: If suitable employment for disabled
discrimination of others who
persons cannot be found through open
are subject to common
employment, the State shall endeavor to
administrative control.
provide it by means of sheltered employment.
(4) Providing less compensation,
In the placement of disabied persons in
such as salary, wage or other
sheltered employment, it shall accord due
forms of remuneration and
regard to the individual qualities, vocational
fringe benefits, to a qualified
goals and inclinations to ensure a good
disabled employee by reason of
working atmosphere and efficient production.
his disability, than the amount

to which a nondisabled person
In Bernardo v. NLRC, the Court ruled that the
performing the same work is
Magna Carta for Disabled Persons mandates
entitled;
that qualified disabled persons be granted the
(5) Favoring a non-disabled
same terms and conditions of employment as
employee over a qualified
qualified able-bodied employees. Once they
disabled employee with respect
have attained the status of regular workers,
to promotion, training
they should be accorded all the benefits
opportunities, study and
granted by law, notwithstanding written or
scholarship grants, solely on
verbal contracts to the contrary. This
account of the latter's disability;
treatment is rooted not merely on charity or
(6) Re-assigning or transferring a
accommodation, but on justice for all.
disabled employee to a job or

position he cannot perform by
● Discrimination on Employment. - No
reason of his disability;
entity, whether public or private, shall
(7) Dismissing or terminating the
discriminate against a qualified
services of a disabled employee
disabled person by reason of disability
by reason of his disability
in regard to job application
unless the employer can prove
procedures, the hiring, promotion, or
that he impairs the satisfactory
discharge of employees, employee
performance of the work
compensation, job training, and other
/
involved to the prejudice of the
HUMAN RESOURCES DEVELOPMENT
business entity: Provided,
PROGRAM
however; that the employer first
sought to provide reasonable
accommodations for disabled A. NATIONAL MANPOWER DEVELOPMENT
persons; PROGRAM - GOVERNMENT MACHINERY
(8) Failing to select or administer in
the most effective manner
employment tests which Arts. 43-56, Labor Code
accurately reflect the skills, ARTICLE 43. Statement of Objective. — It is the
aptitude or other factor of the objective of this Title to develop human
disabled applicant or employee resources, establish training institutions, and
that such test purports to formulate such plans and programs as will
measure, rather than the ensure efficient allocation, development and
impaired sensory, manual or utilization of the nation's manpower and thereby
promote employment and accelerate economic
speaking skills of such
and social growth.
applicant or employee, if any;
and
(9) Excluding disabled person from ARTICLE 44. Definitions. — As used in this Title:
membership in labor unions or (a) "Manpower" shall mean that portion of the
similar organizations. nation's population which has actual or potential
capability to contribute directly to the
production of goods and services.
(b) "Entrepreneurship" shall mean training for
self-employment or assisting individual or small
industries within the purview of this Title.

ARTICLE 45. National Manpower and Youth
Council; Composition. — To carry out the
objectives of this Title, the National Manpower
and Youth Council, which is attached to the
Department of Labor for policy and program
coordination and hereinafter referred to as the
Council, shall be composed of the Secretary of
Labor as ex-officio chairman, the Secretary of
Education and Culture as ex-officio

vice-chairman, and as ex-officio members, the

Secretary of Economic Planning, the Secretary
of Natural Resources, the Chairman of the Civil
Service Commission, the Secretary of Social
Welfare, the Secretary of Local Government, the
Secretary of Science and Technology, the
Secretary of Trade and Industry and the
Director-General of the Council. The Director
General shall have no vote.

In addition, the President shall appoint the

following members from the private sector: two

(2) representatives of national organizations of
employers; two (2) representatives of national
workers' organizations; and one representative
of national family and youth organizations, each
for a term of three (3) years.

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ARTICLE 46. National Manpower Plan. — The coordinated with the Council, particularly those
Council shall formulate a long-term national having to do with the setting of skills standards.
manpower plan for the optimum allocation, For this purpose, existing manpower training
development and utilization of manpower for programs in the government and in the private
employment, entrepreneurship and economic sector shall be reported to the Council which
and social growth. This manpower plan shall, may regulate such programs to make them
after adoption by the Council, be updated conform with national development programs.
annually and submitted to the President for his
approval. Thereafter, it shall be the controlling This Article shall not include apprentices,
plan for the development of manpower learners and handicapped workers as governed
resources for the entire country in accordance by appropriate provisions of this Code.
with the national development plan. The Council

shall call upon any agency of the Government or
the private sector to assist in this effort. ARTICLE 50. Industry Boards. — The Council
shall establish industry boards to assist in the

establishment of manpower development
ARTICLE 47. National Manpower Skills Center. schemes, trades and skills standards and such
— The Council shall establish a National other functions as will provide direct
Manpower Skills Center and regional and local participation of employers and workers in the
training centers for the purpose of promoting fulfillment of the Council's objectives, in
the development of skills. The centers shall be accordance with guidelines to be established by
administered and operated under such rules and the Council and in consultation with the
regulations as may be established by the National Economic and Development Authority.
Council.
The maintenance and operations of the industry

boards shall be enhanced through a funding
ARTICLE 48. Establishment and Formulation of scheme under such rates of fees and manners
Skills Standards. — There shall be national of collection and disbursements as may be
skills standards for industry trades to be determined by the Council.
established by the Council in consultation with

employers' and workers' organizations and
appropriate government authorities. The Council ARTICLE 51. Employment Service Training
shall thereafter administer the national skills Functions. — The Council shall utilize the
standards. employment service of the Department of Labor
for the placement of its graduates. The Bureau

of Employment Services shall render assistance
ARTICLE 49. Administration of Training to the Council in the measurement of
Programs. — The Council shall provide, through unemployment and underemployment, conduct
the Secretariat, instructor training, of local manpower resource surveys and
entrepreneurship development, training in occupational studies including an inventory of
vocations, trades and other fields of the labor force, establishment and maintenance
employment, and assist any employer or without charge of a national register of
organization in training schemes designed to technicians who have successfully completed a
attain its objectives under rules and regulations training program under this Act, and skilled
which the Council shall establish for this manpower including its publication,
purpose. maintenance of an adequate and up-to-date
system of employment information.
The Council shall exercise, through the

Secretariat, authority and jurisdiction over, and
administer, on-going technical assistance ARTICLE 52. Incentive Scheme. — An additional
programs and/or grants-in-aid for manpower deduction from taxable income of one-half (1/2)
and youth development including those which of the value of labor training expenses incurred
may be entered into between the Government of for development programs shall be granted to
the Philippines and international and foreign the person or enterprise concerned provided
organizations and nations, as well as persons that such development programs, other than
and organizations in the Philippines. apprenticeship, are approved by the Council and
the deduction does not exceed ten percent
In order to integrate the national manpower (10%) of the direct labor wage.
development efforts, all manpower training
schemes as provided for in this Code shall be There shall be a review of the said scheme two
/
years after its implementation. functions of the Council and the achievement of
the objectives of this Title;

5. To determine specific allocation of resources
ARTICLE 53. Council Secretariat. — The Council for the projects to be undertaken pursuant to
shall have a Secretariat headed by a approved manpower plans;
Director-General who shall be assisted by a 6. To submit to the Council periodic reports on
Deputy Director-General, both of whom shall be progress and accomplishment of work
career administrators appointed by the programs;
President of the Philippines on recommendation 7. To prepare for approval by the Council an
of the Secretary of Labor. The Secretariat shall annual report to the President on plans,
be under the administrative supervision of the programs and projects on manpower and
Secretary of Labor and shall have an Office of out-of-school youth development;
Manpower Planning and Development, an Office 8. To enter into agreements to implement
of Vocational Preparation, a National Manpower approved plans and programs and perform any
Skills Center, regional manpower development and all such acts as will fulfill the objectives of
offices and such other offices as may be this Code as well as ensure the efficient
necessary. performance of the functions of the Council;
and
The Director-General shall have the rank and 9. To perform such other functions as may be
emoluments of an undersecretary and shall authorized by the Council.
serve for a term of ten (10) years. The

Executive-Directors of the Office of Manpower
Planning and Development, the Office of ARTICLE 54. Regional Manpower Development
Vocational Preparation and the National Offices. — The Council shall create regional
Manpower Skills Center shall have the rank and manpower development offices which shall
emoluments of a bureau director and shall be determine the manpower needs of the industry,
subject to Civil Service Law, rules and agriculture and other sectors of the economy
regulations. The Director-General, Deputy within their respective jurisdictions; provide the
Director-General and Executive Directors shall Council's central planners with the data for
be natural-born citizens, between thirty and fifty updating the national manpower plan;
years of age at the time of appointment, with a recommend programs for the regional level
master's degree or its equivalent, and agencies engaged in manpower and youth
experience in national planning and development within the policies formulated by
development of human resources. The the Council; and administer and supervise
Executive Director of the National Manpower Secretariat training programs within the region
Skills Center shall, in addition to the foregoing and perform such other functions as may be
qualifications, have undergone training in center authorized by the Council.
management. Executive Directors shall be

appointed by the President on the
recommendations of the Secretary of Labor ARTICLE 55. Consultants and Technical
and Employment. Assistance, Publication, and Research. — In
pursuing its objectives, the Council is authorized
The Director-General shall appoint such to set aside a portion of its appropriation for the
personnel necessary to carry out the objectives, hiring of the services of qualified consultants,
policies and functions of the Council subject to and/or private organizations for research work
Civil Service rules. The regular professional and and publication. It shall avail itself of the
technical personnel shall be exempt from services of the Government as may be required.
WAPCO rules and regulations.

The Secretariat shall have the following
ARTICLE 56. Rules and Regulations. — The
functions and responsibilities:
Council shall define its broad functions and
1. To prepare and recommend the manpower
issue appropriate rules and regulations
plan for approval by the Council;
necessary to implement the provision of this
2. To recommend allocation of resources for the
Code.
implementation of the manpower plan as
approved by the
Council;
3. To carry out the manpower plan as the
implementing arm of the Council;

4. To effect the efficient performance of the

/
RA 7796 (TESDA Act) in a given occupational area;
SECTION 1. Title. – This Act shall be known as ● “Technical Education” shall refer to the
the “Technical Education and Skills education process designed at
Development Act of 1994” or the “TESDA Act of post-secondary and lower tertiary levels,
1994”. officially recognized as non-degree
programs aimed at preparing
SEC. 2. Declaration of Policy. – It is hereby technicians, para-professionals and
declared the policy of the State to provide other categories of middle-level workers
relevant, accessible, high quality and efficient by providing them with a broad range of
technical education and skills development in general education, theoretical, scientific
support of the development of high quality and technological studies, and related
Filipino middle-level manpower responsive to job skills training;
and in accordance with Philippine development ● “Trade” shall mean any group of
goals and priorities. interrelated jobs or any occupation
which is traditionally or officially
The State shall encourage active participation of recognized as craft or artisan in nature
various concerned sectors, particularly private requiring specific qualifications that can
be acquired through work experience
enterprises, being direct participants in and and/or training;
immediate beneficiaries of a trained and skilled ● “Middle-Level Manpower” refers to
workforce, in providing technical education and those:
skills development opportunities. 1.who have acquired practical skills and
knowledge through formal or
SEC. 3. Statement of Goals and Objectives. – It non-formal education and training
is the goal and objective of this Act to: equivalent to at least a secondary
● Promote and strengthen the quality of education but preferably at
technical education and skills post-secondary education with a
development programs to attain corresponding degree of diploma; or
international competitiveness; 2.skilled workers who have become
● Focus technical education and skills highly competent in their trade or craft
development on meeting the changing as attested by industry;
demands for quality middle-level ● “Private Enterprises” refers to an
manpower; economic system under which property
● Encourage critical and creative thinking of all kinds can be privately owned and
by disseminating the scientific and in which individuals, alone or in
technical knowledge base of association with another, can embark
middle-level manpower development on a business activity. This includes
programs; industrial, agricultural, or agro-industrial
● Recognize and encourage the establishments engaged in the
complementary roles of public and production, manufacturing, processing,
private institutions in technical repacking or assembly of goods
education and skills development and including service-oriented enterprises;
training systems; and ● “Trainers” shall mean persons who
● Inculcate desirable values through the direct the practice of skills towards
development of moral character with immediate improvement in some task;
emphasis on work ethic, self-discipline, ● “Trainors/trainers” shall mean persons
self-reliance and nationalism. who provide training to trainers aimed
at developing the latter’s capacities for
SEC. 4. Definition of Terms. – As used in this imparting attitudes, knowledge, skills
Act: and behavior patters required for
● “Skill” shall mean the acquired and specific jobs, tasks, occupations or
practiced ability to carry out a task or group of related occupations.
job; ● “Trainees” shall mean persons who are
● “Skills Development” shall mean the participants in a vocational,
process through which learners and administrative or technical training
workers are systematically provided program for the purpose of acquiring
with learning opportunities to acquire or and developing job-related skills;
upgrade, or both, their ability, knowledge ● “Apprenticeship” training within
and behavior pattern required as employment with compulsory related
qualifications for a job or range of jobs theoretical instruction involving a
/
contract between an apprentice and an Manpower and Youth Council (NMYC), the
employer on an approved Bureau of Technical and Vocational Education
apprenticeable occupation; (BTVE) and the personnel and functions
● “Apprentice” is a person undergoing pertaining to technical-vocational education in
training for an approved apprenticeable the regional offices of the Department of
occupation during an apprenticeship Education, Culture and Sports (DECS) and the
agreement; apprenticeship program of the Bureau of Local
● “Apprenticeship Agreement” is a Employment of the Department of Labor and
contract wherein a prospective Employment.
employer binds himself to train the
apprentice who in turn accepts the SEC. 6. Composition of the Authority. – The
terms of training for a recognized Authority shall be composed of the TESDA
apprenticeable occupation emphasizing Board and the TESDA Secretariat.
the rights, duties and responsibilities of
each party; SEC. 7. Composition of the TESDA Board. – The
● “Apprenticeable Occupation” is an TESDA Board shall be composed of the
occupation officially endorsed by a following:
tripartite body and approved for 1. The Secretary of Labor and Employment
apprenticeable by the Authority; (Chairperson)
● “Learners” refers to persons hired as 2. Secretary of Education, Culture and
trainees in semi-skilled and other Sports (Co-Chairperson)
industrial occupations which are 3. Secretary of Trade and Industry
non-apprenticeable. Learnership (Co-Chairperson)
programs must be approved by the 4. Secretary of Agriculture (Member)
Authority; 5. Secretary of Interior and Local
● “User-Led” or “Market-Driven Strategy” Government (Member)
refers to a strategy which promotes 6. Director-General of the TESDA
strengthened linkages between Secretariat (Member)
educational/training institutions and
industry to ensure that appropriate skills In addition, the President of the Philippines shall
and knowledge are provided by the appoint the following members from the private
educational system; sector: two (2) representatives, from the
● “Dual System/Training” refers to a employer/industry organization, one of whom
delivery system of quality technical and shall be a woman; three (3) representatives,
vocational education which requires from the labor sector, one of whom shall be a
training to be carried out alternately in woman; and two (2) representatives of the
two venues: in-school and in the national associations of private
production plant. In- school training technical-vocational education and training
provides the trainee the theoretical institutions, one of whom shall be a women. As
foundation, basic training, guidance and soon as all the members of the private sector
human formation, while in-plant training are appointed, they shall so organized
develops his skills and proficiency in themselves that the term of office of one-third
actual work conditions as it continues (1/3) of their number shall expire every year. The
to inculcate personal discipline and member from the private sector appointed
work values; thereafter to fill vacancies caused by expiration
● “Levy Grant System” refers to a legal of terms shall hold office for three (3) years.
contribution from participating
employers who would be beneficiaries The President of the Philippines may, however,
of the program (often as a percentage revise the membership of the TESDA Board,
of the payroll) which is subsequently whenever the President deems it necessary for
turned over or rebated to enterprises the effective performance of the Board’s
offering employee training programs. functions through an administrative order.
SEC. 5. Technical Education and Skills The TESDA Board shall meet at least twice a
Development Authority; Creation. – To year, or as frequently as may be deemed
implement the policy declared in this Act, there necessary by its Chairperson. In the absence of
is hereby created a Technical Education and the Chairperson, a Co-Chairperson shall preside.
Skills Development Authority (TESDA), In case any member of the Board representing
hereinafter referred to as the Authority, which the Government cannot attend the meeting, he
shall replace and absorb the National or she shall be regularly represented by an
/
undersecretary or deputy-director general, as the phase-out following a user-led strategy;
case may be, to be designated by such member 5. approve trade skills standards and
for the purpose. trade tests as established and
conducted by private industries;
The benefits, privileges and emoluments of the 6. establish and administer a system of
Board shall be consistent with existing laws and accreditation of both public and private
rules. institutions;
7. establish, develop and support
SEC. 8. Powers and Functions of the Board. – institutions’ trainors’ training and/or
The Authority shall primarily be responsible for programs;
formulating, continuing, coordinated and fully 8. lend support and encourage
integrated technical education and skills increasing utilization of the dual training
development policies, plans and programs system as provided for by Republic Act.
taking into consideration the following: No. 7686;
● The State policy declared herein of 9. exact reasonable fees and charges
giving new direction and thrusts to for such tests and trainings conducted
efforts in developing the quality of and retain such earnings for its own
Filipino human resource through use, subject to guidelines promulgated
technical education and skills by the Authority;
development; 10. allocate resources, based on the
● The implementation of the Secretariat’s recommendations for the
above-mentioned policy requires the programs and subjects it shall
coordination and operation of policies, undertake pursuant to approved
plans, and programs of different National Technical Education and Skills
concerned sectors of Philippine society; Development Plan;
● Equal participation of representatives of 11. determine and approve systematic
industry groups, trade associations, funding schemes such as the Levy and
employers, workers and government Grant scheme for technical education
shall be made the rule in order to ensure and skills development purposes;
that urgent needs and 12. create, when deemed necessary, an
recommendations are readily Advisory Committee which shall provide
addressed; and expert and technical advice to the Board
● Improved linkages between industry, to be chosen from the academe and the
labor and government shall be given private sector: Provided, That in case
priority in the formulation of any the Advisory Committee is created, the
national-level plan. Board is hereby authorized to set aside
● The Board, shall have the following a portion of its appropriation for its
powers: operation; and
1. promulgate, after due consultation 13. perform such other duties and
with industry groups, trade functions necessary to carry out the
associations, employers, workers, provisions of this Act consistent with
policies, plans, programs and guidelines the purposes of the creation of TESDA.
as may be necessary for the effective
implementation of this Act; SEC. 9. Power to Review and Recommend
2. organize and constitute various Action. – The Authority shall review and
standing committees, subsidiary recommend action to concerned authorities on
groups, or technical working groups for proposed technical assistance programs and
efficient integration, coordination and grants-in-aid for technical education or skills
monitoring technical education and development, or both, including those which
skills development programs at the may be entered into between the Government
national, regional, and local levels; of the Philippines and other nations, including
3. enter into, make, execute, perform international and foreign organizations, both
and carry-out domestic and foreign here and abroad.
contracts subject to existing laws, rules
and regulations. SEC. 10. The TESDA Secretariat. – There is
4. restructure the entire sub-sector hereby created a Technical Education and Skills
consisting of all institutions and Development Authority Secretariat which shall
programs involved in the promotion and have the following functions and
development of middle-level manpower responsibilities:
through upgrading, merger and/or
/
● To establish and maintain a planning As Chief Executive Officer of the TESDA
process and formulate a national Secretariat, the Director-General shall exercise
technical education and skills general supervision and control over its
development plan in which the technical and administrative personnel.
member-agencies and other concerned
entities of the Authority at various levels SEC. 12. Deputy Directors-General. – The
participate; Director-General shall be assisted by two (2)
● To provide analytical inputs to policy Deputy Directors-General to be appointed by the
decision-making of the Authority on President of the Philippines on recommendation
allocation of resources and institutional of the TESDA Board. One to be responsible for
roles and responsibilities as shall be Vocational and Technical Education and
embodied in annual agencies technical Training and one to be responsible for Policies
education and skills development plans, and Planning.
in accordance with the manpower plan
for middle-level skilled worker as The Deputy Directors-General shall enjoy the
approved by the Authority; benefits, privileges and emoluments equivalent
● To recommend measures, and to the rank of Assistant Secretary.
implement the same upon approval by
the Authority, for the effective and SEC. 13. Chief of Services for Administration. –
efficient implementation of the national The Director-General shall also be assisted by a
technical education and skills Chief of Services for Administration who shall
development plan; be a Career Civil Service Official to be appointed
● To propose to the Authority the specific by the TESDA Board.
allocation of resources for the programs
and projects it shall undertake pursuant SEC. 14. Structural Organization and Personnel.
to approved national technical – The TESDA Secretariat, in addition to the
education and skills development plan; offices of the Director-General, Deputy
● To submit to the Authority periodic Director-General and Chief of Services for
reports on the progress and Administration shall be composed of the
accomplishment of work programs of following offices to be headed by an Executive
implementation of plans and policies Director to be appointed by the Director-General
for technical education and skills and shall have the rank and emoluments of
development; Director IV.
● To prepare for approval by the Authority
an annual report to the President on Planning Office (PO) – The Planning Office shall
technical education and skills be under the Office of the Deputy
development; Director-General and shall have the following
● To implement and administer the functions:
apprenticeship program as provided for 1. To design and establish planning processes
in Section 18 of his Act; and methodologies which will particularly
● To prepare and implement upon enhance the efficiency of resource allocation
approval by the Authority a program for decisions within the technical education and
the training of trainers, supervisors, skills development sector;
planners and managers as provided for 2. To lead in the preparation and periodic
in Section 23 of this Act; updating of a national plan for technical
● To enter into agreement to implement education and skills development which shall
approved plans and programs and become the basis for resource allocation
perform activities as shall implement decisions within the sector;
the declared policy of this Act; and to 3. To conduct researchers, studies and develop
perform such other functions and duties information systems for effective and efficient
as may be assigned by the Board. planning and policy making within the sector;
4. To develop and implement programs and
SEC. 11. Director-General. – The TESDA projects aimed at building up planning
Secretariat shall be headed by a capabilities of various institutions within the
Director-General, who shall likewise be a sector; and
member of the TESDA Board. The 5. To perform such other powers and functions
Director-General shall be appointed by the as may be authorized by the Authority.
President of the Philippines and shall enjoy the
benefits, privileges and emoluments equivalent Skills Standards and Certification Office
to the rank of Undersecretary. (SSCO) – The Skills Standards and Certification
/
Office shall be under the office of the Deputy 2. To establish and maintain a system for
Director-General and shall have the following accrediting, coordinating, integrating, monitoring
functions: and evaluating the different formal
1. To develop and establish a national system of technical-vocational education and training
skills standardization, testing and certification in programs vis-à-vis the approved national
the country; technical education and skills development
2. To design, innovate and adopt processes and plan;
methodologies whereby industry groups and 3. To establish and maintain a network of
workers’ guilds take note on progressively the institutions engaged in institutionalized
responsibility of setting skills standards for technical-vocational education and training,
identified occupational areas, and the local particularly with local government units; and
government units actively participate in 4. To perform such other duties and functions
promoting skills standards, testing and as may be authorized.
certification;
3. To establish and implement a system of Office of the Non-Formal Technical-Vocational
accrediting private enterprises, workers’ Education and Training (ONFTVET) – The Office
associations and guilds and public institutions of the Non-Formal Technical-Vocational
to serve as skills testing venues; Education and Training to be under the office of
4. To conduct research and development on the Deputy Director-General and shall have the
various occupational areas in order to following functions:
recommend policies, rules and regulations for 1. To provide direction, policies and guidelines
effective and efficient skills standardization, for effective implementation of non-formal
testing and certification system in the community-based technical-vocational
country; and education and training;
5. To perform such other duties and functions 2. To accredit, coordinate, monitor and evaluate
as may be authorized. various non-formal technical-vocational
education and training programs implemented
National Institute for Technical Vocational and by various institutions particularly, by local
Education Training (NITVET) – The National government units;
Institute for Technical Vocational and Education 3. To establish and maintain a network of
Training to be under the office of the Deputy institutions including local government units,
Director-General and shall have the following non-government organizations implementing
functions: non-formal, community-based
1. To serve as the research and development technical-vocational education and training;
arm of the government in the field of the 4. To perform such other powers and functions
technical-vocational education and training; as may be authorized.
2. To develop curricula and program standards
for various technical-vocational education and Office of Apprenticeship (OA) – The Office of
training areas; Apprenticeship shall be under the office of the
3. To develop and implement an integrated Deputy Director-General and shall have the
program for continuing development of trainors, following functions:
teachers and instructors within the technical 1. To provide direction, policies and guidelines
education and skills development sector; on the implementation of the apprenticeship
4. To develop programs and project which will system;
build up institutional capabilities within the 2. To accredit, coordinate, monitor and evaluate
sector; and all apprenticeship schemes and program
5. To perform such other powers and functions implemented by various institutions and
as may be authorized. enterprises;
3. To establish a network of institutions and
Office of Formal Technical Vocational enterprises conducting apprenticeship schemes
Education and Training (OFTVET) – The Office and programs;
of Formal Technical Vocational Education and 4. To perform such other powers and functions
Training to be under the office of the Deputy as may be authorized.
Director-General and shall have the following
functions: Regional TESDA Offices – The Regional TESDA
1. To provide policies, measures and guidelines Offices shall be headed by Regional Directors
for effective and efficient administration of with the rank and emoluments of Director IV to
formal technical-vocational education and be appointed by the President. The Regional
training programs implemented by various TESDA Offices shall be under the direct control
institutions in the country; of the Director-General and shall have the
/
following functions: SEC. 18. Transfer of the Apprenticeship
1. To serve as Secretariat to Regional Technical Program. – The Apprenticeship Program of the
Education Skills Development (TESDA) Bureau of Local Employment of the Department
Committee; of Labor and Employment shall be transferred to
2. To provide effective supervision, coordination the Authority which shall implement and
and integration of technical education and skills administer said program in accordance with
development programs, projects and related existing laws, rules and regulations.
activities in their respective jurisdictions;
3. To develop and recommend TESDA programs SEC. 19. Technical Education and Skills
for regional and local-level implementation Development Committees. – The Authority shall
within the policies set by the Authority. establish Technical Education and Skills
4. To perform such other duties and functions Development Committees at the regional and
as may be deemed necessary. local levels to coordinate and monitor the
delivery of all skills development activities by
SEC. 15. The Provincial TESDA Offices. – The the public and private sectors. These
Provincial Offices shall be headed by Skill committees shall likewise serve as the
Development Officers who shall have the rank Technical Education and Skills Development
and emoluments of a Director III. Committees of the Regional and local
development councils. The compositions of the
The Provincial TESDA Offices shall be under the Technical Education and Skills development
direct control of the Director-General and shall Committees shall be determined by the
have the following functions: Director-General subject to the guidelines to be
1. To serve as Secretariat to Provincial TESDA promulgated by the Authority.
Committees;
2. To provide technical assistance particularly to SEC. 20. Skills Development Centers. – The
local government units for effective Authority shall strengthen the network of
supervisions, coordination, integration and national, regional and local skills training
monitoring of technical-vocational education centers for the purpose of promoting skills
and training programs within their localities; development. This network shall include skills
3. To review and recommend TESDA Programs training centers in vocational and technical
for implementation within their localities; and schools, technical institutes, polytechnic
4. To perform such other duties and functions colleges, and all other duly accredited public
as may be authorized. Furthermore, the TESDA and private dual system educational
Secretariat maybe further composed by such institutions. The technical education and skills
offices as may be deemed necessary by the development centers shall be administered and
Authority. The Director-General shall appoint operated under such rules and regulations as
such personnel necessary to carry out the may be established by the Authority in
objectives, policies and functions of the accordance with the National Technical
Authority subject to civil service laws, rules and Education and Skills Development Plan.
regulations.
SEC. 21. Formulation of a Comprehensive
SEC. 16. Compliance with the Salaries Development Plan for Middle-Level Manpower.
Standardization Law. – The compensation and – The Authority shall formulate a
emoluments of the officials and employees of comprehensive development plan for
the Authority shall be in accordance with the middle-level manpower based on a national
salary standardization law and other applicable employment plan or policies for the optimum
laws under the national compensation and allocation, development and utilization of skilled
classification plan. workers for employment entrepreneurship and
technology development for economic and
SEC. 17. Consultants and Technical Assistance, social growth. This plan shall after adoption by
Publication and Research. – In pursuing its the Authority be updated periodically and
objectives, the Authority is hereby authorized to submitted to the President of the Philippines for
set aside a portion of its appropriation for the approval. Thereafter, it shall be the plan for the
hiring of services of qualified consultants, and technical education and skills development for
private organizations for research work and the entire country within the framework of the
publication in the field of technical education National Development Plan. The Authority shall
and skills development. It shall avail itself of the direct the TESDA Secretariat to call on its
services of other agencies of the Government member-agencies, the private sector and the
as may be required. academe to assist in this effort. The
comprehensive plan shall provide for a reformed
/
industry-based training program including opportunities. Such training programs and
apprenticeship, dual training system and other schemes shall include teacher’s trainors’
similar schemes intended to: training, skills training for entrepreneur
● Promote maximum protection and development and technology development,
welfare of the worker-trainee; cost-effective training in occupational trades
● Improve the quality and relevance and and related fields of employment, and value
social accountability of technical development as an integral component of all
education and skills development; skills training programs.
● Accelerate the employment-generation
effort of the government; and SEC. 24. Assistance to Employers and
● Expand the range of opportunities for Organizations. – The Authority shall assist any
upward social mobility of the employer or organization engaged in skills
school-going population beyond the training schemes designed to attain its
traditional higher levels of formal objectives under rules and regulations which
education. All government and the Authority shall establish for this purpose.
non-government agencies receiving
financial and technical assistance from SEC. 25. Coordination of All Skills Training
the government shall be required to Schemes. – In order to integrate the national
formulate their respective annual skills development efforts, all technical
agency technical education and skills education and skills training schemes as
development plan in line with the provided for in this Act shall be coordinated with
national technical education and skills the Authority particularly those having to do with
development plan. The budget to the setting of trade skills standards. For this
support such plans shall be subject to purpose, existing technical education and skills
review and endorsement by the training programs in the Government and in the
Authority to the Department of Budget private sector, specifically those wholly or partly
and Management. The Authority shall financed with government funds, shall be
evaluate the efficiency and reported to the Authority which shall assess and
effectiveness of agencies skills evaluate such programs to ensure their
development program and schemes to efficiency and effectiveness.
make them conform with the
quantitative and qualitative objectives SEC. 26. Industry Boards. – The Authority shall
of the national technical education and establish effective and efficient institutional
skills development plan. arrangements with industry boards and such
other bodies or associations to provide direct
SEC. 22. Establishment and Administration of participation of employers and workers in the
National Trade Skills Standards. – There shall design and implementation of skills
be national occupational skills standards to be development schemes, trade skills
established by TESDA-accredited industry standardization and certification and such other
committees. The Authority shall develop and functions in the fulfillment of the Authority’s
implement a certification and accreditation objectives.
program in which private industry groups and
trade associations are accredited to conduct SEC. 27. Incentives Schemes. – The Authority
approved trade tests, and the local government shall develop and administer appropriate
units to promote such trade testing activities in incentive schemes to encourage government
their respective areas in accordance with the and private industries and institutions to provide
guidelines to be set by the Authority. The high-quality technical education and skills
Secretary of Labor and Employment shall development opportunities.
determine the occupational trades for
mandatory certification. All certificates relating SEC. 28. Skills Development Opportunities. –
to the national trade skills testing and The Authority shall design and implement an
certification system shall be issued by the effective and efficient delivery system for
Authority through the TESDA Secretariat. quality technical education and skills
development opportunities particularly in
SEC. 23. Administration of Training Programs. – disadvantaged sectors, with new tools of wealth
The Authority shall design and administer creation and with the capability to take on
training programs and schemes the will develop higher value-added gainful activities and to
the capabilities of public and private institutions share equitably in productivity gains.
to provide quality and cost-effective technical SEC. 29. Devolution of TESDA’s Training
education and skills development and related Function to Local Governments. – In
/
establishing the delivery system provided for in underwrite expenses for administration.
the preceding Section, the Authority shall The Board shall appoint a reputable
formulate, implement and finance a specific government-accredited investment institutions
plan to develop the capability of local as fund manager, subject to guidelines
government units to assume ultimately the promulgated by the Board.
responsibility for effectively providing
community-based technical education and skills SEC 32. Scholarship Grants. – The authority
development opportunities: Provided, however, shall adopt a system of allocation and funding
That there shall be formulated and of scholarship grants which shall be responsive
implemented, an effective and timely retraining to the technical education and skills
of TESDA personnel that would be affected by development needs of the different regions in
the devolution to ensure their being retained if the country.
the concerned local government units would not
be able to absorb them. SEC 33. TESDA Budget. – The amount
necessary to finance the initial implementation
SEC. 30. Skills Olympics. – To promote quality of this Act shall be charged against the existing
skills development in the country and with the appropriations of the NMYC and the BTVE.
view of participating in international skills Thereafter, such funds as may be necessary for
competitions, the Authority, with the active the continued implementation of this Act shall
participation of private industries, shall organize be included in the annual General
and conduct annual National Skills Olympics. Appropriations Act.
The Authority, through the TESDA Secretariat,
shall promulgate the necessary rules and SEC 34. Transitory Provisions. –
guidelines for the effective and efficient
conduct of Annual National Skills Olympics and a) Within two (2) months after the approval of
for the country’s participation in internationals this Act, the President shall, in consultation with
skills olympics. the Secretary of Labor and Employment and the
Secretary of Education, Culture and Sports,
SEC. 31. The TESDA Development Fund. – A appoint the private sector representatives of the
TESDA Development Fund is hereby established, TESDA Board.
to be managed/administered by the Authority,
the income from which shall be utilized Within (3) months after the appointment of the
exclusively in awarding of grants and providing private sector representatives, the President
assistance to training institutions, industries, shall, upon the recommendation of the Board,
local government units for upgrading their appoint the General-Director.
capabilities and to develop and implement
training and training-related activities. The Within (4) months after the appointment of the
contribution to the fund shall be the following: Director General, the Board shall convene to
● A one-time lump sum appropriation determine the organizational structure and
from the National Government; staffing pattern of the Authority.
● An annual contribution from the
Overseas Workers Welfare Within (1) year after the organization of the
Administration Fund, the amount of Authority, the Board shall commission an expert
which should be part of the study on group on funding schemes for the TESDA
financing in conjunction with letter (D) Development Fund, as provided in Section 31,
of Section 34; the results of which shall be used as the basis
● Donations, grants, endowments, and for appropriate action by the Board.
other bequests or gifts, and any other
income generated by the Authority. The personnel of the existing National
Manpower and Youth Council (NMYC) of the
The TESDA Board shall be the administrator of Department of Labor and Employment and the
the fund, and as such, shall formulate the Bureau of Technical and Vocational Education
necessary implementing guidelines for the (BTVE) of the Department of Education, Culture
management of the fund, subject to the and Sports, shall, in a holdover capacity,
following: continue to perform their respective duties and
a) unless otherwise stipulated by the private responsibilities and receive their corresponding
donor, only earnings of private contributions salaries and benefits until such time when the
shall be used; and organizational structure and staffing pattern of
b) no part of the seed capital of the fund, the Authority shall have been approved by the
including earnings, thereof, shall be used to Board: Provide, That the preparation and
/
approval of the said new organizational B. APPRENTICESHIP AND LEADERSHIP
structure and staffing pattern shall, as far as
practicable, respect and ensure the security of
tenure and seniority rights affected government Arts. 55-77, Labor Code
employees. Those personnel whose positions ARTICLE 57. Statement of Objectives. — This
are not included in the new staffing pattern Title aims:
approved by the Board or who are not 1. To help meet the demand of the economy for
reappointed or who choose to be separated as a trained manpower;
result of the reorganization shall be paid their 2. To establish a national apprenticeship
separation or retirement benefits under existing program through the participation of employers,
laws. workers and government and non-government
agencies; and
SEC 35. Automatic review. – Every five (5) years, 3. To establish apprenticeship standards for the
after the affectivity of this Act, an independent protection of apprentices.
review panel composed of three (3) persons
appointed by the President shall review the
performance of the authority and shall make ARTICLE 58. Definition of Terms. — As used in
recommendations, based on its findings to the this Title:
President shall review the performance of the (a) "Apprenticeship" means practical training on
Authority and shall make the recommendations, the job supplemented by related theoretical
based on the findings to the President and to instruction.
both Houses of Congress. (b) An "apprentice" is a worker who is covered
by a written apprenticeship agreement with an
SEC. 36. Implementing Rules and Guidelines. – individual employer or any of the entities
The TESDA board shall issue, within a period of recognized under this Chapter.
ninety (90) days after the affectivity of this Act, (c) An "apprenticeable occupation" means any
the rules and regulations for the effective trade, form of employment or occupation which
implementation of this Act. The TESDA Board requires more than three (3) months of practical
shall submit tot he committees on Education, training on the job supplemented by related
Arts and Culture of both Houses of Congress theoretical instruction.
copies of the implementing rules and guidelines (d) "Apprenticeship agreement" is an
within (30) days after its promulgation. Any employment contract wherein the employer
violation of this Section shall render the binds himself to train the apprentice and the
official/s concerned liable under R. A. No. 6713, apprentice in turn accepts the terms of training.
otherwise known as the “Code of Conduct and
Ethical Standards for Public Officials and
Employees” and other existing administrative ARTICLE 59. Qualifications of Apprentice. — To
and/or criminal laws. qualify as an apprentice, a person shall:
(a) Be at least fourteen (14) years of age;
(b) Possess vocational aptitude and capacity for
appropriate tests; and
(c) Possess the ability to comprehend and

follow oral and written instructions.

Trade and industry associations may
recommend to the Secretary of Labor
appropriate educational requirements for
different occupations..

ARTICLE 60. Employment of Apprentices. —
Only employers in the highly technical industries
may employ apprentices and only in

apprenticeable occupations approved by the
Minister of Labor and Employment.

ARTICLE 61. Contents of Apprenticeship
Agreements. — Apprenticeship agreements,
/
including wage rates of apprentices, shall organization. Actual training of apprentices may
conform to the rules issued by the Minister of be undertaken:
Labor and Employment. The period of (a) In the premises of the sponsoring employer
apprenticeship shall not exceed six months. in the case of individual apprenticeship
Apprenticeship agreements providing for wage programs;
rates below the legal minimum wage, which in (b) In the premises of one or several designated
no case shall start below 75 per cent of the firms in the case of programs sponsored by a
applicable minimum wage, may be entered into group or association of employers or by a civic
only in accordance with apprenticeship organization; or
programs duly approved by the Minister of (c) In a Department of Labor and Employment
Labor and Employment. The Ministry shall training center or other public training
develop standard model programs of institution.
apprenticeship.

ARTICLE 65. Investigation of Violation of
ARTICLE 62. Signing of Apprenticeship Apprenticeship Agreement. — Upon complaint
Agreement. — Every apprenticeship agreement of any interested person or upon its own
shall be signed by the employer or his agent, or initiative, the appropriate agency of the
by an authorized representative of any of the Department of Labor and Employment or its
recognized organizations, associations or authorized representative shall investigate any
groups and by the apprentice. violation of an apprenticeship agreement
pursuant to such rules and regulations as may
An apprenticeship agreement with a minor shall be prescribed by the Secretary of Labor and
be signed in his behalf by his parent or guardian Employment.
or, if the latter is not available, by an authorized

representative of the Department of Labor, and
the same shall be binding during its lifetime. ARTICLE 66. Appeal to the Secretary of Labor
and Employment. — The decision of the
Every apprenticeship agreement entered into authorized agency of the Department of Labor
under this Title shall be ratified by the and Employment may be appealed by any
appropriate apprenticeship committees, if any, aggrieved person to the Secretary of Labor and
and a copy thereof shall be furnished both the Employment within five (5) days from receipt of
employer and the apprentice. the decision. The decision of the Secretary of
Labor and Employment shall be final and

executory.
ARTICLE 63. Venue of Apprenticeship

Programs. — Any firm, employer, group or
association, industry organization or civic group ARTICLE 67. Exhaustion of Administrative
wishing to organize an apprenticeship program Remedies. — No person shall institute any
may choose from any of the following action for the enforcement of any
apprenticeship schemes as the training venue apprenticeship agreement or damages for
for apprentice: breach of any such agreement, unless he has
(a) Apprenticeship conducted entirely by and exhausted all available administrative remedies.
within the sponsoring firm, establishment or

entity;
(b) Apprenticeship entirely within a Department ARTICLE 68. Aptitude Testing of Applicants . —
of Labor and Employment training center or Consonant with the minimum qualifications of
other public training institution; or apprentice applicants required under this
(c) Initial training in trade fundamentals in a Chapter, employers or entities with duly
training center or other institution with recognized apprenticeship programs shall have
subsequent actual work participation within the primary responsibility for providing appropriate
sponsoring firm or entity during the final stage aptitude tests in the selection of apprentices. If
of training. they do not have adequate facilities for the
purpose, the Department of Labor and

Employment shall perform the service free of
ARTICLE 64. Sponsoring of Apprenticeship charge.
Program. — Any of the apprenticeship schemes
recognized herein may be undertaken or
sponsored by a single employer or firm or by a
group or association thereof or by a civic
/
ARTICLE 69. Responsibility for Theoretical non-apprenticeable and which may be learned
Instruction. — Supplementary theoretical through practical training on the job in a
instruction to apprentices in cases where the relatively short period of time which shall not
program is undertaken in the plant may be done exceed three (3) months.
by the employer. If the latter is not prepared to

assume the responsibility, the same may be
delegated to an appropriate government agency. ARTICLE 74. When Learners may be Hired. —
Learners may be employed when no

experienced workers are available, the
ARTICLE 70. Voluntary Organization of employment of learners is necessary to prevent
Apprenticeship Programs; Exemptions. — curtailment of employment opportunities, and
(a) The organization of apprenticeship program the employment does not create unfair
shall be primarily a voluntary undertaking by competition in terms of labor costs or impair or
employers; lower working standards.
(b) When national security or particular

requirements of economic development so
demand, the President of the Philippines may ARTICLE 75. Learnership Agreement. — Any
require compulsory training of apprentices in employer desiring to employ learners shall enter
certain trades, occupations, jobs or employment into a learnership agreement with them, which
levels where shortage of trained manpower is agreement shall include:
deemed critical as determined by the Secretary (a) The names and addresses of the learners;
of Labor and Employment. Appropriate rules in (b) The duration of the learnership period, which
this connection shall be promulgated by the shall not exceed three (3) months;
Secretary of Labor and Employment as the need (c) The wages or salary rates of the learners
arises; and which shall begin at not less than seventy-five
(c) Where services of foreign technicians are percent (75%) of the applicable minimum wage;
utilized by private companies in apprenticeable and
trades, said companies are required to set up (d) A commitment to employ the learners if they
appropriate apprenticeship programs. so desire, as regular employees upon
completion of the learnership. All learners who

have been allowed or suffered to work during
ARTICLE 71. Deductibility of Training Costs . — the first two (2) months shall be deemed regular
An additional deduction from taxable income of employees if training is terminated by the
one-half (1/2) of the value of labor training employer before the end of the stipulated period
expenses incurred for developing the through no fault of the learners.
productivity and efficiency of apprentices shall
be granted to the person or enterprise The learnership agreement shall be subject to
organizing an apprenticeship program: Provided, inspection by the Secretary of Labor and
That such program is duly recognized by the Employment or his duly authorized
Department of Labor and Employment: representative.
Provided, further, That such deduction shall not

exceed ten (10%) percent of direct labor wage:
and Provided, finally, That the person or ARTICLE 76. Learners in Piecework. — Learners
enterprise who wishes to avail himself or itself employed in piece or incentive-rate jobs during
of this incentive should pay his apprentices the the training period shall be paid in full for the
minimum wage. work done.

ARTICLE 72. Apprentices without ARTICLE 77. Penalty Clause. — Any violation of
Compensation. — The Secretary of Labor and this Chapter or its implementing rules and
Employment may authorize the hiring of regulations shall be subject to the general
apprentices without compensation whose penalty clause provided for in this Code.
training on the job is required by the school or
training program curriculum or as requisite for
graduation or board examination.

ARTICLE 73. Learners Defined. — Learners are
persons hired as trainees in semi-skilled and
other industrial occupations which are
/
Omnibus Rules: Book II, Rules VI-VII 5 days from the receipt thereof.

X X X
SECTION 7. Benefits accruing to recognition. —
SECTION 2. Definition of Terms. An entity with a recognized apprenticeship
program shall be entitled to technical and other
X X X assistance from the Bureau and other
(e) "Apprenticeship standards" means the government agencies and to the corresponding
written implementing plans and conditions of an training-expense deduction from its income tax.
apprenticeship program. The rate of such tax deduction incentive and the
(f) "Bureau" means the Bureau of procedure of availment thereof are provided in
Apprenticeship. Section 42 of this Rule.
(g) "Employer" means the individual firm or any
other entity qualified to hire apprentice under X X X
the Code.
(h) "On the job training" is the practical work
experience through actual participation in SECTION 9. Who may establish programs. —
productive activities given to or acquired by an Any entity, whether or not organized for profit
apprentice. may establish or sponsor apprenticeship
(i) "Related theoretical instructions" means programs and employ apprentices.
technical information based on apprenticeship
standards approved by the Bureau designed to
provide the apprentice theoretical competence SECTION 10. Assistance by non-profit entities..
in his trade. — In lieu of organizing programs, non-profit
(j) "Highly Technical Industries" means trade, entities may:
business, enterprise, industry, or other activity, (a) Execute an agreement with firms of their
which is engaged in the application of advanced choice with on-going apprenticeship programs,
technology. directly or through the Department of Labor and
Employment, assuming responsibility for
training deserving apprentices selected by an
SECTION 3. Voluntary nature of the employer who shall pay the apprentices;
apprenticeship program. — The organization of (b) Give financial and other contributions for the
apprenticeship program shall be primarily a promotion of apprenticeship programs; or
voluntary undertaking of employers, except as (c) Provide other forms of assistance.
otherwise provided.
Apprentices who train under such programs
shall be properly identified in apprenticeship
X X X agreements with the employer. However,
responsibility for compliance with employees’
SECTION 5. On-the-job training to be explicitly compensation, social security, medicare, and
described. — The manner in which practical or other labor laws shall remain with the employer
on-the-job training shall be provided must be who benefits from the productive efforts of the
specifically described in the apprenticeship apprentices.
standards of a particular program.
SECTION 11. Qualifications of apprentices. — To
SECTION 6. Recognition of apprenticeship qualify as apprentice, an applicant shall:
programs. — To enjoy the benefits which the (a) Be at least fifteen years of age; provided
Bureau or other government agencies may those who are at least fifteen years of age but
extend to duly recognized apprenticeship less than eighteen may be eligible for
programs, an employer shall submit in apprenticeship only in non-hazardous
quadruplicate to the Training Section of the occupations;
appropriate Apprenticeship Division of the (b) Be physically fit for the occupation in which
appropriate Regional Office the apprenticeship he desires to be trained;
standards of the proposed program prepared in (c) Possess vocational aptitude and capacity for
accordance with guidelines set by the Bureau. the particular occupation as established
through appropriate tests; and
If the apprenticeship standards are found in (d) Possess the ability to comprehend and
order, a certificate of recognition shall be issued follow oral and written instructions.
by the Apprenticeship Division concerned within
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Trade and industry associations may, however, under different occupational conditions;
recommend to the Secretary of Labor and (b) Those involving theoretical and proficiency
Employment appropriate educational tests for apprentices during their training;
qualifications for apprentices in certain (c) Areas and duration of work and study
occupations. Such qualifications, if approved, covered by on-the-job training and theoretical
shall be the educational requirements for instructions of apprenticeable trades and
apprenticeship in such occupations unless occupations; and
waived by an employer in favor of an applicant (d) Those referring to the qualifications of
who has demonstrated exceptional ability. A trainers of apprentices.
certification explaining briefly the ground for

such waiver, and signed by the person in charge
of the program, shall be attached to the SECTION 17. Participation in standards setting.
apprenticeship agreement of the applicant — The Bureau may request any legitimate
concerned. worker's and employer's organizations, civic and
professional groups, and other entities whether

public or private, to assist in the formulation of
X X X national apprenticeship standards.

SECTION 13. Physical fitness. — Total physical
fitness need not be required of an SECTION 18. Contents of agreements. - Every
apprentice-applicant unless it is essential to the apprenticeship agreement shall include the
expeditious and effective learning of the following:
occupation. Only physical defects which (a) The full names and addresses of the
constitute real impediments to effective contracting parties;
performance as determined by the plant (b) Date of birth of the apprentice;
apprenticeship committee may disqualify an (c) Name of the trade, occupation or job in
applicant. which the apprentice will be trained and the
dates on which such training will begin and will
approximately end;
SECTION 14. Free physical examination. — (d) The approximate number of hours of
Physical examination of apprentice-applicant on-the-job training as well as of supplementary
preparatory to employment shall be provided theoretical instructions which the apprentice
free of charge by the Department of Health or shall undergo during his training;
any government hospital. If this is not feasible, (e) A schedule of the work processes of the
the firm or entity screening the applicant shall trade/occupation in which the apprentice shall
extend such service free of charge. be trained and the approximate time to be spent
on the job in each process;
Any entity with an apprenticeship program may (f) The graduated scale of wages to be paid the
elect to assume the responsibility for physical apprentice;
examination provided its facilities are adequate (g) The probationary period of the apprentice
and all expenses are borne exclusively by it. during which either party may summarily
terminate their agreement; and
(h) A clause that if the employer is unable to
SECTION 15. Apprenticeable trades. — The fulfill his training obligation, he may transfer the
Bureau shall evaluate crafts and operative, agreement, with the consent of the apprentice,
technical, nautical, commercial, clerical, to any other employer who is willing to assume
technological, supervisory, service and such obligation.
managerial activities which may be declared
apprenticeable by the Secretary of Labor and
Employment and shall have exclusive SECTION 19. Apprenticeship period. - The
jurisdiction to formulate model national period of apprenticeship shall not exceed six (6)
apprenticeship standards therefor. months.
(a) Four hundred (400) hours or two (2) months
for trades or occupations which normally
SECTION 16. Model Standards. — Model require a year or more for proficiency; and
apprenticeship standards to be set by the (b) Two hundred (200) hours or one (1) month
Bureau shall include the following: for occupations and jobs which require more
than three months but less than one year for
(a) Those affecting employment of apprentices proficiency.

/
At least five (5) working days before the actual SECTION 23. Bureau and Apprenticeship
date of termination, the party terminating shall Division of Regional Office concerned to be
serve a written notice on the other, stating the furnished copy of agreement. — The employer
reason for such decision and a copy of said shall furnish a copy of the apprenticeship
notice shall be furnished the Apprenticeship agreement to the Bureau and Apprenticeship
Division concerned. Division of Regional Office concerned and the
agency which shall provide related theoretical

instructions if the employer is not the one who
SECTION 20. Hours of work. — Hours of work of will give such instructions. The copies shall be
the apprentice shall not exceed the maximum sent by the employer within five (5) working
number of hours of work prescribed by law, if days from the date of execution thereof. If the
any, for a worker of his age and sex. Time spent agreement is found defective and serious
in related theoretical instructions shall be damage would be sustained by either party if
considered as hours of work and shall be such defect is not corrected, the Apprenticeship
reckoned jointly with on-the-job training time in Division shall advise the employer within five (5)
computing in the agreement the appropriate working days not to implement the agreement
periods for giving wage increases to the pending amendment thereof. Other defects may
apprentice. be correlated without suspending the effectivity
of the agreement.
An apprentice not otherwise barred by law from

working eight hours a day may be requested by
his employer to work overtime and paid SECTION 24. Enforcement of agreement. — No
accordingly, provided there are no available person shall institute any action for the
regular workers to do the job, and the overtime enforcement of any apprenticeship agreement
work thus rendered is duly credited toward his or for damages for breach thereof, unless he
training time. has exhausted all available administrative
remedies. The plant apprenticeship committee

shall have initial responsibility for settling
SECTION 21. Previous training or experience. — differences arising out of apprenticeship
A prospective apprentice who has completed or agreements.
otherwise attended a vocational course in a duly

recognized trade or vocational school or training
center or who has had previous experience in SECTION 25. Valid cause to terminate
the trade or occupation in which he desires to agreement. — Either party to an agreement may
be apprenticed shall be given due credit terminate the same after the probationary
therefor. period only for a valid cause. The following are
valid causes for termination:
Both practical and theoretical knowledge shall
be evaluated and the credit shall appear in the By the employer —
apprenticeship agreement which shall have the (a) Habitual absenteeism in on-the-job training
effect of shortening the training and servicing and related theoretical instructions;
as a basis for promoting him to a higher wage (b) Willful disobedience of company rules or
level. Such credit shall be expressed in terms of insubordination to lawful order of a superior;
hours. (c) Poor physical condition, permanent disability
or prolonged illness which incapacitates the

apprentice from working;
SECTION 22. Parties to agreement. — Every (d) Theft or malicious destruction of company
apprenticeship agreement shall be signed by the property and/or equipment;
employer or his duly authorized representative (e) Poor efficiency or performance on the job or
and by the apprentice. in the classroom for a prolonged period despite
warnings duly given to the apprentice; and
An apprenticeship agreement with a minor shall (f) Engaging in violence or other forms of gross
be signed in his behalf by his parent or guardian, misconduct inside the employer's premises.
or if the latter is not available, by an authorized
representative of the Department of Labor and By the apprentice —
Employment. (a) Substandard or deleterious working
conditions within the employer's premises:

(b) Repeated violations by the employer of the
terms of the apprenticeship agreement;
(c) Cruel or inhuman treatment by the employer
/
or his subordinates; of:
(d) Personal problems which in the opinion of (a) Technical personnel in the plant, trade or
the apprentice shall prevent him from a industry concerned;
satisfactory performance of his job; and (b) Labor and management representatives.
(e) Bad health or continuing illness.
Representatives of cooperative, civic and other

groups may also participate in such
SECTION 26. Procedure of termination. — The committees.
procedure for effecting termination shall be

embodied in appropriate instructions to be
prepared by the Bureau and approved by the SECTION 32. Duties of apprenticeship
Secretary of Labor and Employment. committees. - An apprenticeship committee at
any level shall be responsible for the following

duties:
SECTION 27. Theoretical instructions by (a) Act as liaison between the apprentice and
employer. — Related theoretical instructions to the employees;
apprentices may be undertaken by the employer (b) Mediate and/or settle in the first instance
himself if he has adequate facilities and differences between the employer and the
qualified instructors for the purpose. He shall apprentices arising out of an apprenticeship
indicate his intention to assume such agreement;
responsibility in the apprenticeship standard of (c) Maintain a constant follow-up on the
his program. The course outline and the technical progress of the program and of the
bio-data of the instructors who will conduct the apprentices in particular;
course shall conform with the standards set by (d) Recommend to the Apprenticeship Division
the Department. of the Regional Office concerned the issuance
of certificates of completion to apprentices.

SECTION 28. Ratio of theoretical instruction and
on-the-job training. — The normal ratio is one SECTION 33. Creation of ad hoc advisory
hundred (100) hours of theoretical instructions committees. — The Secretary of Labor and
for every two thousand (2,000) hours of Employment may create ad hoc committees
practical or on-the-job training. Theoretical consisting of representatives of management,
instructions time for occupations requiring less labor and government on the national, regional
than two thousand hours for proficiency shall be and local levels to advise and assist him in the
computed on the basis of such ratio. formulation of policy, promotion of
apprenticeship and other matters he may deem

appropriate to refer to them..
SECTION 29. Wages. — The wage rate of the

apprentice shall start at seventy five (75%) per
cent of the statutory minimum wage for the first SECTION 34. Use of training centers. — The
six (6) months; thereafter, he shall be paid the Department may utilize the facilities and
full minimum wage, including the full cost of services of the National Manpower and Youth
living allowance. Council, the Department of Education, Culture
and Sports and other public training institutions

for the training of apprentices.
SECTION 30. Tripartite apprenticeship

committees. — The creation of a plant
apprenticeship committee for every SECTION 35. Coordination of training activities.
apprenticeship program shall be necessary. The — The apprenticeship Division shall coordinate
Department of Labor and Employment shall with the above training centers all activities
encourage the organization of apprenticeship relating to apprenticeship. The Bureau, through
committees at trade, industry or other levels. As the Apprenticeship Division, shall provide
much as possible these committees shall technical guidance and advice to the
consist of management, labor and government centers.cralaw
representatives

SECTION 36. Priority in use of training centers.
SECTION 31. Non-Tripartite Committees — — Priority in the use of training centers shall be
Where tripartism is not feasible, the given to recognized apprenticeship programs in
apprenticeship committee may be composed skills which are highly in demand in specific
/
regions or localities as determined through appropriate apprenticeship programs.
surveys. The Bureau shall recommend to the

Secretary of Labor and Employment the
establishment of priorities based on data SECTION 42. Certification from Apprenticeship
supplied by the Bureau of Local Employment, Division. — An employer desiring to avail of the
Labor Statistics Service, the National Manpower tax deduction provided under the Code shall
and Youth Council, and its own fundings. The secure from the Apprenticeship Division a
Secretary of Labor and Employment may, certification that his apprenticeship program
however, also act on the basis of petitions was operational during the taxable year
presented by qualified entities which are willing concerned. Such certification shall be attached
to bear the costs of training. to the employer's income tax returns for the
particular year. Guidelines for the issuance of

such certification shall be prepared by the
SECTION 37. Issuance of certificates. — Upon Bureau and approved by the Secretary of Labor
completion of his training, the apprentice shall and Employment.
be issued a certificate of completion of

apprenticeship by the Apprenticeship Division of
X X X
the Regional Office concerned.

SECTION 1. Definition of Terms. - (a) "Learner"
SECTION 38. Certificate of meritorious service. is a person hired as a trainee in industrial
— A certificate of meritorious service may be occupations which are non-apprenticeable and
awarded by the Secretary of Labor and which may be learned through practical training
Employment to apprenticeship committees or on the job for a period not exceeding three (3)
other entities which have rendered outstanding months, whether or not such practical training is
service to the cause of apprenticeship. supplemented by theoretical instructions.cralaw

(b) "Learnership agreement" refers to the
SECTION 39. Certificate, evidence of skills. — A employment and training contract entered into
certificate of completion of apprenticeship shall between the employer and the learner.
be evidence of the skills specified therein in

accordance with national skills standards
X X X
established by the Department.

SECTION 3. Approval of learning program. —
SECTION 40. Apprenticeship without Any employer who intends to employ learners
compensation. — The Secretary of Labor and shall submit in writing to the Apprenticeship
Employment through the Apprenticeship Division of the Regional Office concerned, copy
Division, may authorize the hiring of apprentices furnished the Bureau, his learnership program,
without compensation whose training on the job which the Division shall evaluate to determine if
is required by the school curriculum as a the occupation involved is learnable and the
prerequisite for graduation or for taking a program is sufficient for the purpose of training.
government board examination. Within five (5) working days from receipt of the
program, the Division shall make known its

decision to the employer concerned. A
SECTION 41. Compulsory apprenticeship. — (a) learnership program shall be subject to periodic
When grave national emergencies, particularly inspection by the Secretary of Labor and
those involving the security of the state, arise or Employment or his duly authorized
particular requirements of economic representative.
development so demand, the Secretary of Labor

and Employment may recommend to the
President of the Philippines the compulsory SECTION 4. Contents of learnership agreement.
training of apprentices required in a certain - A learnership agreement, shall include:
trades, occupations, jobs or employment levels (a) The names and addresses of the employer
where shortage of trained manpower is deemed and the learner;
critical; (b) The occupation to be learned and the
duration of the training period which shall not
(b) Where services of foreign technicians are exceed three (3) months;
utilized by private companies in apprenticeable (c) The wage of learner which shall be at least
trades said companies are required to set up 75 percent of the applicable minimum wage;
/
and agricultural, industrial and business
(d) A commitment to employ the learner, if he so establishments, as one of the preferred means
desires, as a regular employee upon completion of creating a dependable pool of well-trained
of training. operators, craftsmen and technicians for the
economy.
A learner who has worked during the first two
months shall be deemed a regular employee if SEC. 3. Objectives. – This Act shall have the
training is terminated by the employer before following objectives:
the end of the stipulated period through no fault a) encourage increasing utilization of the dual
of the learner. system in technical and vocational education
and training by both public and private schools

within the context of the existing education
SECTION 5. Parties to learnership agreement. - system;
Every learnership agreement shall be signed by b) encourage increasing levels of investment in
the employer or his duly authorized agent and technical and vocational education and training
by the learner. A learnership agreement with a by both public and private sectors specially in
minor shall be signed by the learner with the the rural areas;
conformity of his parent or guardian. c) enhance the employability and productivity of
graduates by equipping them with analytical and
The employer shall furnish a copy each of the creative thinking and problem-solving abilities;
learnership agreement to the learner, the Bureau, manipulative competencies which meet
and the Apprenticeship Division of the occupational standards and requirements;
appropriate Regional Office within five (5) values and attitudes with emphasis on work
working days following its execution by the ethics, quality orientation, discipline, honesty,
parties. self-reliance and patriotism; and
d) strengthen training cooperation between

agricultural, industrial and business
SECTION 6. Employment of minors as learners. establishments and educational institutions by
— A minor below fifteen (15) years of age shall designing and implementing relevant training
not be eligible for employment as a learner. programs in close coordination with concerned
Those below eighteen (18) years of age may local government units.
only be employed in non-hazardous
occupations. SEC. 4. Definition of Terms. – For purposes of
this Act, the following terms shall mean:

a) “Appropriate Authority” refers to the
SECTION 7. Cancellation of learnership government entity in-charge of formal technical
programs. — The Secretary of Labor and and vocational education train
Employment may cancel any learnership b) “Dual Training System” refers to an
program if upon inquiry it is found that the instructional delivery system of technical and
justification for the program no longer exists.. vocational education and training that combines
in-plant training and in-school training based on
a training plan collaboratively designed and
implemented by an accredited dual system
RA 7686 (Dual Training Systems Act) educational institution/training center and
SECTION 1. Short Title. – This Act shall be accredited dual system agricultural, industrial
known as the “Dual Training System Act of and business establishments with prior notice
1994.” and advice to the local government unit
concerned. Under this system, said
SEC. 2. Declaration of Policy. – It is hereby establishments and the educational institution
declared the policy of the State to strengthen share the responsibility of providing the trainee
manpower education and training in the country with the best possible job qualifications, the
so that the latter may be assured of an ever former essentially through practical training and
growing supply of an educated and skilled the latter by securing an adequate level of
manpower equipped with appropriate skills and specific, general and occupation-related
desirable work habits and attitudes. The Dual theoretical instruction. The word “dual” refers to
Training System, as successfully tested in some the two parties providing instruction: the
highly developed countries, shall be adopted in concept “system” means that the two
duly accredited vocational and technical instructing parties do not operate independently
schools, in cooperation with accredited of one another, but rather coordinate their
efforts.
/
c) “Trainee” refers to a person qualified to Educational Institution and the agricultural,
undergo the dual training system for the industrial and business establishments:
purpose of acquiring and developing job Provided, That, the union or the workers of the
qualifications. latter have been duly informed in advance of
d) “Accredited Dual Training System Educational such an agreement.
Institution/Training Center” refers to a public or
private institution duly recognized and A trainee who has successfully completed a
authorized by the appropriate authority, in training program in a particular agricultural,
coordination with the business and industry, to industrial or business establishment shall be
participate in the dual training system. given priority of employment in that agricultural,
e) “Establishments” refer to enterprises and/or industrial or business establishment. The
services of agricultural, industrial, or business appropriate authority shall keep a roll of these
establishments. successful trainees for purposes of identifying
d) “Accredited Dual Training System Agricultural, them for employment.
Industrial and Business Establishments”
hereinafter referred to as agricultural, industrial SEC. 9. Incentives for Participating
and business establishments, refer to a sole Establishments. -To encourage agricultural,
proprietorship, partnership, corporation or industrial and business establishments to
cooperative which is duly recognized and participate in the System, they shall be allowed
authorized by the appropriate authority to to deduct from their taxable income the amount
participate in the dual training system of fifty percent (50%) of the actual system
educational institution. expenses paid to the Accredited Dual Training
System Educational Institution for the
SEC. 5. Institutionalization of the Dual Training establishment’s trainees: Provided, That such
System. -The dual training system, hereafter expenses shall not exceed five percent (5%) of
referred to as the System, is hereby their total direct labor expenses but in no case
institutionalized in the Philippines in accordance to exceed Twenty-five million pesos
with the provisions of this Act. (P25,000,000) a year.

SEC. 6. Coverage. – This Act shall apply to all Donations for the operation of the System shall
public and private educational be deductible from the taxable income of the
institutions/training centers and agricultural, donors.
industrial and business establishments duly
accredited to participate in dual training system. The Department of Finance shall issue the
necessary rules and regulations for the purpose
SEC. 7. Planning and Coordination. – The of tax incentives provided herein.
appropriate authority shall plan, set standards,
coordinate, monitor, and allocate resources in SEC. 10. Obligations of Accredited Agricultural,
support of the implementation of the System. Industrial and Business Establishments. – The
agricultural, industrial and business
Every accredited educational institution/training establishments shall:
center shall establish an industrial coordinating a) ensure that the necessary abilities and
office which shall supervise the in-plant training: knowledge for the trainee to achieve the
Provided, That, the industrial establishment purpose of his training are imparted to him and
shall be required to furnish the educational shall provide such training systematically in
institution with the necessary information for accordance with an approved training plan;
the purpose of supervision. b) appoint the training officer to implement the
training plan;
The industrial coordinating office shall be c) make available, free of charge, the
headed by an industrial coordinator with, at consumable materials and basic hand tools and
least, an officer level rank. The industrial equipment necessary for his training;
coordinator may be assisted by such other d) allow the trainee to attend his in-school
personnel as may be necessary for the effective training and to sit for his examinations;
discharge of the functions of the office. e) require the trainee to keep his report book
up-to-date and inspect such books;
SEC. 8. Status of Trainee. – For the duration of f) ensure that the trainee is encouraged to
the training under the System, the trainee is to develop his personality and that he is protected
be considered not an employee of the business/ from physical or moral danger;
industrial establishment but rather a trainee of
both the Accredited Dual Training System
/
g) entrust to the trainee such jobs as are related establishment begins with an accredited
to the purpose of his training and are education institution/training center and the
commensurate with his capabilities; trainee or his representative, the individual
h) pay to the accredited educational establishment shall provide the accredited
institution/training center the daily allowance of educational institution/training center and the
the trainee; and trainee with a copy of the signed agreement.
i) allow the trainee the necessary time-off for his
in-school training. The memorandum of agreement shall set forth,
among others, the following:
SEC. 11. Obligations of the Trainee. – A trainee a) the training plan;
shall exert every effort to acquire the abilities b) the nature and objective of the training;
and knowledge necessary for him to achieve the c) the commencement and duration of the
purpose of his training. Towards this end, he training period including the total number of
shall: in-school and in-plant training hours;
a) carefully perform the jobs entrusted to him as d) the normal daily training hours;
part of his training; e) the trainee’s allowance and the rate to be
b) take part in training programs for which he applied, which in no case shall start below
has been granted time-off under this Act; seventy-five percent (75%) of the applicable
c) follow the instruction given to him as part of minimum daily wage for days spent in the
his training by the training officer or any other establishments;
person entitled to give him such instructions; f) the rights and obligations of the parties
d) observe rules of behavior in the training concerned in addition to those provided in
premises; Sections 10, 11, and 12;
e) use tools, instruments, machines, and other g) the definition of the status of the trainee
equipment with due care; according to Section 8 of this Act;
f) not reveal any business nor trade secrets that h) the conditions for the termination of the
have come to his knowledge in the course of his training agreement;
training; and i) the performance, monitoring and evaluation
g) keep his record books up-to-date. system; and
j) such other essential particulars as would
SEC. 12. Obligations of the Accredited mutually benefit all parties concerned.
Educational Institutions/Training Centers. – The
educational institutions/training centers that SEC. 15. Insurance Coverage of the Trainee.
have entered into a memorandum of agreement -Every agricultural, industrial and business
with agricultural, industrial or business establishment undertaking training, in
establishments to undertake training shall: accordance with the provisions of this Act, shall
a) design, implement, and evaluate jointly the sign a life and/or accident insurance policy on
training plan with the accredited the life of the trainee with the insured and the
establishments; spouse, children or parents of the trainee as the
b) provide specific, general, and beneficiaries thereof: Provided, That, the
occupation-related theoretical instruction; agricultural, industrial and business
c) appoint industrial coordinators to supervise establishments shall pay for the premiums of
the in-plant training; said insurance policy.
d) pay the trainee his daily allowance; and
e) perform such other tasks and activities as SEC. 16. Revolving Fund. – Any law, rule or
may be necessary and in furtherance of the regulation to the contrary notwithstanding, the
objectives of the training. Accredited Dual Training System Educational
Institution/Training Center is hereby authorized
SEC. 13. Non-diminution of Incentives. – to retain as a revolving fund, the amount paid to
Nothing in this Act shall be construed to it by the agricultural, industrial and business
diminish or reduce any privilege already enjoyed establishments representing the actual dual
by the parties concerned under existing laws, training expenses. The fund shall be used to
decrees, or executive orders. improve the operation of the dual training
system.
SEC. 14. Signing of Memorandum of Agreement
by the Accredited Dual Training System SEC 17. Implementing Rules. – The appropriate
Agricultural, Industrial and Business authority and the Department of Finance, upon
Establishments, the Accredited Dual Training prior consultation with the business and
System Educational Institution/ Training Center, industry concerned, shall issue the necessary
and the Trainee. – Before an individual rules and regulations for the effective
/
implementation of this Act within a period of Q: What is apprenticeship?
ninety (90) days after its effectivity. Any A: Apprenticeship, generally understood, is the
violation of this Section shall render the arrangement and the period when an
concerned official/s liable under R. A. No. 6713, upcoming worker undergoes hands-on
otherwise known as the “Code of Conduct and training, more or less formal, to learn the
Ethical Standards for Public Officials and ropes of a skilled job.
Employees” and other existing administrative A national apprenticeship program is needed
and/or criminal laws. to line-up a succession of trained young
workers. Through apprenticeship, a nation
SEC 18. Other Exemption from Taxes and
builds, as it were, an army of workers
Duties. - Any donation, contribution, bequest,
subsidy, or financial aid which may be made for possessing industrial skills.
the operation or the System shall constitute as
allowable deduction from the income of the Note: Section 18 of the TESDA Act of l994
donors for income tax purposes and shall be expressly empowers the TESDA to implement
exempt from donor’s tax, subject to such and administer the apprenticeship program in
conditions as provided under the National accordance with existing laws, rules and
Internal Revenue Code, as amended. Essential regulations.
equipment, apparatus and materials imported
by accredited dual training private educational Q: Who is an apprentice?
institutions shall be exempt from taxes and
A: An apprentice is a worker who is covered
duties: Provided, That, the importation of these
items shall be subject to the following by a written apprenticeship agreement with an
qualifications: individual employer or any of the entities
a) that the importation shall be certified by the recognized under the law.
appropriate. authority;
b) that they should be actually, directly, and An apprenticeship agreement is an
exclusively used in connection with the dual employment contract wherein the employer
training system and any unauthorized use shall binds himself to train the apprentice and the
subject the accredited dual training private apprentice in turn accepts the terms of
educational institutions to payment of taxes and training.
duties due thereon; and

c) that they are not available locally in sufficient
quantity of comparable quality, and at Q: What are the requisites for employment of
reasonable prices: apprenticeship?
Provided, however. That taxes and duties A: The requisites are:
pertaining to the importations of accredited (1) The employer should be engaged in a
government and dual training educational business that is considered a highly
institutions are deemed automatically technical industry (Note: A highly
appropriated. technical industry is a trade, business,
enterprise, industry or other activity
The Department of Finance shall formulate the
which utilizes the application of
necessary rules and regulations to implement
advanced technology.).
the provisions of this section.
(2) The job which the apprentice will work
SEC. 19. Appropriations. – For the initial on should be an apprenticeable
implementation of this Act an amount of One occupation.
million pesos (P1,000,000) shall be charged
against the current year’s appropriation of the An apprenticeable occupation is one which is
contingency fund. Thereafter such sums as may officially endorsed by a tripartite body and
be necessary for its continued implementation approved for apprenticeship by' the Technical
shall be included in the annual General Education and Skills Development Authority
Appropriations Act.
(TESDA).

Note: Pursuant to Article 61 of the Labor
Code, apprenticeship agreements providing
for wage rates below the legal minimum
wage, which in no case shall start below 75%
per cent of the applicable minimum wage,
/
may be entered into only in accordance with of Book Ill provides guidelines on the manner
apprenticeship program duly approved by the by which the powers of the Labor Secretary
Minister of Labor and Employment. Prior shall be exercised... on what records should
approval by the Department of Labor and be kept, maintained and preserved; on payroll;
Employment of the proposed apprenticeship and on the exclusion of working scholars fro,
program is, therefore, a condition sine qua and inclusion of resident physicians in, the
non before such apprenticeship agreement employment coverage as far as compliance
can be validly entered into. with the substantive labor provisions on
working conditions rest periods and wages, is
In Nitto Enterprises v. NLRC, since the concerned.
apprenticeship agreement between employer
and apprentice has no force and effect in the In other words, Rule X is merely a guide to the
absence of a valid apprenticeship program enforcement of the substantive law on labor.
duly approved by the DOLE, the apprentice The Court, thus, makes the distinction and so
was hired not as an apprentice but is holds that Section 14, Rule X, Book Ill of the
considered a regular employee. Rules is not the decisive law in a civil suit for
damages instituted by an injured person
Q: What is the apprenticeable age? during a vehicular accident against a working
A: Under the Labor Code, 14 years. However, student of a school and against the school
under the Anti-Child Abuse Law as amended itself.
by RA 7658 and RA 9281, it is expressly
prohibited to employ children below 15 years The present case does not deal with a labor
of age. Thus, the apprenticeable age is 15. dispute on conditions of employment
between an alleged employee and an alleged
Q: Is a working scholar considered an employer. It involves claim brought by one for
employee of the school? damages for injury caused by the patently
A: No. In relation to Article 72, the negligent acts of a person, against the
Implementing Rules provide: There is no doer-employee and his employer. Hence, the
employer-employee relationship between reliance on the implementing rule on labor to
students on one hand, and schools, colleges disregard the primary liability of an employer
or universities, on the other, where there is under Article 2180 of the Civil Code is
written agreement between them under which misplaced. An implementing rule on labor
the former agree to work for the latter in cannot be used by an employer as a shield to
exchange for the privilege to study free of avoid liability under the substantive provisions
charge, provided the students are given real of the Civil Code.
opportunities, including such facilities as may
be reasonable and necessary to finish their Q: After the termination of the
chosen courses under such agreement. apprenticeship, does an apprentice attain
regular status?
Q: If a working scholar injures a third party, A: Yes. In Atlanta Industries v. Sebolino, the
does the school become liable? Court ruled that with the expiration of the
A: Yes. In a 1992 case, the Supreme Court apprenticeship and the retention of the
initially said no, but reconsidered its decision employees, it can be said that the company
by applying the Civil Code instead of the Labor had, to all intents and purposes, recognized
Code.144 the completion of their training and their
acquisition of a regular employee status. To
Section 14, Rule X, Book Ill of the Rules foist upon them the second apprenticeship
implementing the Labor Code, on which the agreement for a second skill which was not
school anchors its defense, was promulgated even mentioned in the agreement itself, is a
by the Secretary of Labor and Employment violation of the Labor Code’s implementing
only for the purpose of administering and rules and is an act manifestly unfair to the
enforcing the provisions of the Labor Code on employees, to say the least.
conditions of employment. Particularly,·Rule X

144
See Filamer Christian Institute v. IAC.
/
Q: What is the difference between learnership ARTICLE 41. Prohibition against Transfer of
and apprenticeship? Employment. — (a) After the issuance of an
A: Learnership and apprenticeship are similar employment permit, the alien shall not transfer
because they both mean training periods for to another job or change his employer without
jobs requiring skills that can be acquired prior approval of the Secretary of Labor.
through actual work experience. And because
both a learner and an apprentice are not as (b) Any non-resident alien who shall take up
fully productive as regular workers, the learner employment in violation of the provision of this
and the apprentice may be paid wages 25% Title and its implementing rules and regulations
shall be punished in accordance with the
lower than the applicable legal minimum
provisions of Articles 289 and 290 43 of the
wage. Labor Code.

They differ, however, insofar as: In addition, the alien worker shall be subject to
LEARNERSHIP APPRENTICESHIP deportation after service of his sentence.

A learner trains in a An apprentice,,
ARTICLE 42. Submission of List. — Any
semi-skilled job or in trains in a highly employer employing non-resident foreign
industrial skilled job or in a job nationals on the effective date of this Code shall
occupations that found only in a submit a list of such nationals to the Secretary
require training for highly technical of Labor within thirty (30) days after such date
less than three industry. Because it indicating their names, citizenship, foreign and
months. is a highly skilled local addresses, nature of employment and
job, the training status of stay in the country. The Secretary of
period exceeds Labor shall then determine if they are entitled to
three months. an employment permit.

Note: A learner is not an apprentice but an
apprentice is, conceptually, also a learner. Omnibus Rules: Book I, Rule XIV
SECTION 1. Coverage. — This Rule shall apply to
all aliens employed or seeking employment in
the Philippines, and their present or prospective
C. EMPLOYMENT OF ALIENS employers.

Arts. 40-42, Labor Code
SECTION 2. Submission of list. — All employers
ARTICLE 40. Employment Permit of employing foreign nationals, whether resident or
Non-Resident Aliens. — Any alien seeking non-resident shall submit a list of such
admission to the Philippines for employment nationals to the Bureau indicating their names,
purposes and any domestic or foreign employer citizenship, foreign and local addresses; nature
who desires to engage an alien for employment of employment and status of stay in the
in the Philippines shall obtain an employment Philippines.
permit from the Department of Labor.

The employment permit may be issued to a SECTION 3. Registration of resident aliens. — All
non-resident alien or to the applicant employer employed resident aliens shall register with the
after a determination of the non-availability of a Bureau under such guidelines as may be issued
person in the Philippines who is competent, able by it.
and willing at the time of application to perform
the services for which the alien is desired.
SECTION 4. Employment permit required for
For an enterprise registered in preferred areas of entry. — No alien seeking employment, whether
investments, said employment permit may be on resident or non-resident status, may enter the
issued upon recommendation of the Philippines without first securing an
government agency charged with the employment permit from the Department of
supervision of said registered enterprise. Labor and Employment. If an alien enters the
country under a non-working visa and wishes to
/
be employed thereafter, he may only be allowed with imperatives of economic developments;
to be employed upon presentation of a duly and
approved employment permit. f) Payments of a P100.00 fee.

SECTION 5. Requirements for employment SECTION 7. Duration of employment permit. —
permit application. — The application for an Subject to renewal upon showing of good cause,
employment permit shall be accompanied by the employment permit shall be valid for a
the following: minimum period of one (1) year starting from
the date of its issuance unless sooner revoked
(a) Curriculum vitae duly signed by the applicant by the Secretary of Labor and Employment for
indicating his educational background, his work violation of any provisions of the Code or of
experience and other data showing that he these Rules.
possesses high technical skills in his trade or

profession;
SECTION 8. Advice to Commission on
(b) Contract of employment between the Immigration and Deportation. — The Bureau
employer and the principal which shall embody shall advice the Commission on Immigration
the following, among others: and Deportation on the issuance of an
(1) That the non-resident alien worker shall employment permit to an applicant.
comply with all applicable laws and rules and

regulations of the Philippines;
(2) That the non-resident alien worker and the SECTION 9. Understudy Training Program. —
employer shall bind themselves to train at least The employer shall submit a training program
two (2) Filipino understudies for a period to be for his understudies to the Bureau within thirty
determined by the Secretary of Labor and (30) days upon arrival of the alien workers. The
Employment; and supervision of the training program shall be the
(3) That he shall not engage in any gainful responsibility of the Bureau and shall be in
employment other than that for which he was accordance with standards established by the
issued a permit. Secretary of Labor and Employment.

(c) A designation by the employer of at least two
(2) understudies for every alien worker. Such Q: May aliens be employed in the
understudies must be the most ranking regular Philippines?
employees in the section or department for A: Generally yes, provided that they acquire
which the expatriates are being hired to ensure the necessary documents. Art. 40 requires
the actual transfer of technology. that non-resident aliens must secure an
employment permit. For immigrants and
resident aliens, what is required is an Alien
SECTION 6. Issuances of employment permit. — Employment Registration Certificate (AERC).
The Secretary of Labor and Employment may

issue an employment permit to the applicant
based on: Note, however, that, foreigners may not be
a) Compliance by the applicant and his employed in certain "nationalized" business.
employer with the requirements of Section 2 ● The Anti-Dummy Law (C.A No. 108, as
hereof; amended by P.D. No. 715) prohibits
b) Report of the Bureau Director as to the employment of aliens in entities that
availability or non-availability of any person in own or control a right, franchise,
the Philippines who is competent, able, and privilege, property or business whose
willing to do the job for which the services of the exercise or enjoyment is reserved by
applicant are desired;
law only to Filipinos or to corporations
c) His assessment as to whether or not the
or associations whose capital should
employment of the applicant will redound to the
national interest; be at least 60% Filipino-owned.
d) Admissibility of the alien as certified by the ● Authority to operate a public utility or
Commission on Immigration and Deportation; to develop, exploit, and utilize natural
e) The recommendation of the Board of resources can be granted only to
Investments or other appropriate government Philippine citizens or to corporations
agencies if the applicant will be employed in or associations at least 60% of the
preferred areas of investments or in accordance capital of which is owned by such
/
citizens. The same 60% requirement Q: Is a point-hire classification and the grant
applies to financing companies. of higher salaries to foreign hires
● Under the Constitution, Article XVI, discriminatory against local hires, i.e.,
Section 11, mass media enterprises Filipinos?
can be owned or managed only by A: Yes. One cannot invoke the need to entice
Filipinos or by corporations or foreign-hires to leave their domicile to
associations wholly owned or rationalize the distinction in salary rates
managed by them. without violating the principle of equal work
for equal pay. While we recognize the need of
Q: What is the effect of a foreign national’s to attract foreign-hires, salaries should not be
failure to seek an employment permit prior to used as an enticement to the prejudice of
employment? local-hires. The local-hires perform the same
A: It poses a problem in seeking relief from services as foreign-hires and they ought to be
the court. As a rule, the law and the rules are paid the same salaries as the latter.145
consistent in stating that the employment
permit must be acquired prior to employment. For the same reason, the "dislocation factor"
and the foreign-hires' limited tenure also
In Mc Burnie v. Ganzon, the Court ruled that cannot serve as valid bases for the distinction
the failure to present any employment permit in salary rates. The dislocation factor and
which would have authorized him to obtain limited tenure affecting foreign-hires are
employment in the Philippines bolstered the adequately compensated by certain benefits
claim that his employment was merely accorded them which are not enjoyed by
simulated, or did not ensue due to the local-hires, such as housing, transportation,
non-fulfillment of conditions that were set shipping costs, taxes and home leave travel
forth in the agreement. Absent proof, the allowances.
Court ruled that it was difficult to say that
there was an employer-employee relationship. There is no reasonable distinction between
the services rendered by foreign-hires and
Q: May the Secretary of Labor cancel a local-hires.
foreign basketball coach’s employment
permit? Further, the foreign hires cannot be included in
A: Yes. In General Milling Corp v. Torres, the the bargaining unit because to include
Court ruled that the Secretary of Labor did not foreign-hires in a bargaining unit with
act with grave abuse of discretion in revoking local-hires would not assure either group the
Cone's Alien Employment Permit. GMC's claim exercise of their respective collective
that hiring of a foreign .coach is an employer's bargaining rights.
prerogative has no legal basis. Under Article
40 of the Labor Code, an employer seeking
employment of an alien must first obtain an
employment pennit from the Department of.
Labor. GMC's right to choose whom to employ
is limited by the statutory requirement of an
employment permit.

Further, the Labor Code empowers the Labor
Secretary to determine as to the availability of
the services of a person in the Philippines
who is competent, able and willing at the time
of the application to perform the services for
which an alien is desired. The Labor
Department is the agency vested with
jurisdiction to determine the question of
availability of workers.

See International School Alliance of Educators v.
145
Quisimbing.
/
Q: What is a private employment agency?
PRE-EMPLOYMENT
A: It refers to any person, partnership, or
corporation engaged in the recruitment and
RA 8042 (Migrant Workers and Overseas placement of workers for local employment.
Filipino Act), as amended by RA 10022
It also refers to any individual, partnership,
Implementing Rules, Migrant Workers and corporation, or entity licensed by DOLE to
Overseas Filipino Act engage in the recruitment and placement of
Kasambahay for local employment (Sec. 3[g],
Department Order No. 141-14 (Revised Rules DO 141-14).
and Regulations Governing Recruitment and
Placement for Local Employment) Q: Who is a domestic worker or kasambahay?
A: It refers to any person engaged in domestic
Q: What is the policy that guides DOLE? work within an employment relationship,
A: It is the policy of DOLE: whether on a live in or live out arrangement,
(1) To recognize the participation of the such as but not limited to:
private sector in the recruitment and (1) General househelp;
placement of workers for local employment, (2) Yaya;
to promote equality of employment (3) Cook;
opportunity and treatment in access to (4) Gardener; or
employment and particular occupations as (5) Laundry person
part of the overall thrust for national But, shall exclude:
development; (1) Service providers;
(2) To promote employment creation as one (2) Family drivers;
of the principles under the decent work (3) Children who are under foster family
agenda; arrangement; or
(3) To ensure compliance with the pertinent (4) Any person who performs domestic
provisions of the Labor Code, as amended, work only occasionally or sporadically and
Anti-Trafficking in Persons Act of 2003, not on occupational basis (Sec. 3[p], DO
Anti-Child Labor Laws, and other related laws, 141-14).
rules, and regulations;
(4) To protect every citizen desiring to avail of Q: Who is a recruit?
the services of private employment agencies A: It refers to any Filipino individual promised,
by ensuring the best possible terms and contracted, or enlisted for employment (Sec.
conditions for employment; and 3[o], DO 141-14).
(5) To cooperate with government agencies
and duly registered non-government Q: Differentiate a recruitment contract,
organizations in protecting and promoting the employment contract, and service contract
welfare of jobseekers (Sec. 1, DO 141-14). from each other?
A:
Q: What is the coverage of the Rules?
Recruitment The agreement entered
A: These rules shall apply to every person,
contract into between a PEA and its
partnership, or corporation intending to
representative and a
engage or engaged in the recruitment and
recruit stating the terms
placement for local employment through an
and conditions of the
agency.
recruitment in a language

known and understood by
Note: Those intending to engage or is
the recruit.
engaged in the recruitment and placement
through the electronic medium shall be Employment The individual written
covered by the applicable provisions of the contract agreement between the
rules (Sec. 2, DO 141-14). empower and the worker
stating clearly the terms
and conditions of

/
employment are prohibited from engaging in
employment in a language
job contracting and subcontracting (Sec. 5, DO
known and understood by
141-14).
the worker.

Service The agreement entered Q: What are the requirements for application?
contract into between the employer A: Aside from the duly accomplished
and the PEA stating clearly application form, the following must be
the terms and conditions submitted:
of the service.
(Sec.3[q][r][s], DO 141-14)

Q: What are the qualifications for a PEA?
A: It must possess the following:
(1) Filipino citizens for single
proprietorship and 75% of the
authorized capital stock is owned and
controlled by Filipino citizens for
partnership and corporation;
(2) Minimum network of P1M in case of
single proprietorship and a minimum
paid up capital of P1M in case of
partnership and corporation; and
(3) Not otherwise disqualified by law or
other government rules and regulations
to engage in the business of
recruitment and placement of works for
employment (Sec. 4, DO 141-14).

Q: Who are those disqualified to engage in
the business of recruitment and placement
for local employment?
A: (1) Those who are convicted of illegal
recruitment, trafficking in persons, anti-child
labor violation, or crimes involving moral Note: An agency duly licensed to recruit and
turpritude; place workers for overseas employment
(2) Those against whom probable cause or intending to engage in local recruitment and
prima facie finding of guilt for illegal placement must apply for a separate license
recruitment or other related cases exist (Sec. Sec. 6, DO 141-14).
particularly to owners or directors of agencies
who have committed illegal recruitment or Also, the owner, partners, president, general
other related cases; managers or agency’s management
(3) Those agencies whose license have been representative must attend a pre-application
previously revoked or cancelled by the seminar conducted by the Regional/Field
Department under Sec. 54 of these rules; Offices prior to the filing of the application for
(4) Cooperatives whether registered or not license (See Sec. 7, DO 141-14).
under the Cooperative Act of the PH;
(5) Law enforcers and any official and Q: Where to file the application?
employee of the DOLE; A: The application for license shall be filed in
(6) Sole proprietors of duly licensed agencies the Regional Office/Field Office having
are prohibited from securing another license to jurisdiction over the place where the applicant
engage in recruitment and placement; and intends to establish its office.
(7) Sole proprietors, partnership, or
corporations licensed to engage in private Note: In case the documents submitted are
recruitment and placement for local incomplete, the application must not be
received and/or accepted (Sec. 8, DO 141-14).
/
● The application for renewal must be
Further, upon receipt of the application, accompanied with the requirements
together with the complete requirements, the provided under Section 6 together with
applicant shall pay a filing fee of P5k. Such copies of placement reports (Sec. 13,
fee shall not be refunded in case the DO 141-14).
application is denied (Sec. 9, DO 141-14).
Q: What is the rule on the display of license
ACTION ON THE APPLICATION (Sec. 10, DO and organizational structure?
141-14) A: The original license and the organizational
● Within 10 calendar days from the structure of the agency with corresponding
receipt of the application together with 2x2 size photographs of the officers,
the complete requirements and proof personnel, and respresentative/s must be
of payment of the filing fee, the conspicuously and permanently displayed
Regional Director or his representative with the office premises of the agency (Sec.
shall evaluate the documents, conduct 14, DO 141-14).
an ocular inspection of the office
premises and equipment to determine Q: May the license or authority be
whether to grant or deny the transferred?
application. A: No. The license or authority to recruit shall
● In case the documents submitted are not be transferred, conveyed, or assigned to
in complete, the application must not any person or entity other than the one in
be accepted and/or received. whose favor it was issued (Sec. 15, DO
141-14).
POSTING OF BONDS AND PAYMENT OF
LICENSE FEE (Sec. 11, DO 141-14) Q: What happens if there is a change in
● Upon approval of the application, the ownership, officers and personnel, or
applicant shall pay a license fee of address?
P15k. It shall also pay a cash bond in A: First, on ownership, an agency desiring to
the amount of P50k and surety bond in transfer ownership shall surrender its license
the sum of P100k. to the issuing Regional Office. The new owner
● The bonds shall answer for all valid must apply for a new license (Sec. 16, DO
and legal claims arising from the use 141-14).
of the license. It shall likewise ● A change or transfer of ownership of a
guarantee compliance with the single proprietorship shall cause the
provisions of the Labor Code, its automatic revocation of the license.
implementing rules and relevant ● In case of death of a single proprietor,
issuances of the Department on the license may be extended for not
recruitment and placement. more than 6 months from the death
upon the request of the heirs to
Q: What is the validity of the license? continue only for the purpose of
A: The license shall be valid for a period of 3 winding up the business operation or
years from the date of issuance unless sooner until its expiration whichever comes
revoked or cancelled (Sec. 12, DO 141-14). first.
● A change in the relationship among
Q: May the license be renewed? the partners in a partnership shall
A: Yes. An application for renewal of license cause the immediate dissolution of
must be filed not earlier than 60 days but not the partnership resulting in the
later than 30 days before its expiration. The automatic revocation of the license.
validity of the renewed license shall start on
the date of expiration of the previous license. Second, on officers and personnel, any
● The filing of such application after the change in the composition of the Board of
lapse of the prescribed period shall be Directors of a corporation and appointment of
subject to penalties as provided for in officers and personnel shall be registered with
these rules. the Regional Office within 5 days from the
/
date of such change or appointment (Sec. 17, (5) Certificate of attendance to pre-application
DO 141-14). seminar.
● The agency shall submit a Board
Secretary’s certificate of election, letter No application shall be accepted unless all of
of appointment or contract of the requirements have been complied with
employment with her biodata, 2x2 (Sec. 20, DO 141-14).
photos, and NBI clearance.
● The Regional Office may deny the Note:
acknowledgement of the new officers ACTION ON THE APPLICATION FOR
and personnel for non-compliance AUTHORITY TO RECRUIT (Sec. 21, DO 141-14)
with the requirements. ● Within 2 days from the receipt of
● Change in the entire membership of complement documents, the Regional
the Board of Directors shall cause the Director shall deny or approve the
revocation of the license. application; and
● Upon the approval of the application,
Third, on address, an agency intending to the applicant shall pay to the Regional
transfer to a new place of business shall Office a registration fee of P2k.
notify the Regional Office that issued the
license within 15 days prior to the intended Q: What is the validity of the authority to
date of transfer. recruit?
A: The authority to recruit is co-terminus with
In case of transfer to another region and the validity of the license unless such license
within 15 days prior to the date of the transfer, or authority is revoked or cancelled for
the agency shall: violation of the Labor Code, as amended and
other related laws, rules, and regulations (Sec.
22, DO 141-14).

Q: May an authority to recruit be renewed?
A: Yes. An application for renewal of authority
to recruit shall be filed not earlier than 60 days
but not later than 5 days before the date of its
expiration. The validity of the renewed
authority to recruit shall be effective on the
(Sec. 18, DO 141-14). expiration date of the previous authority.
● The filling of such application after the
Q: How is the authority to recruit issued? expiration of the prescribed period
A: The authority to recruit may be issued shall be subject to penalties as
together with the license by the concerned provided for in these rules.
Regional/Field Office. Such authority to recruit ● The agency of its representative shall
shall be valid nationwide (Sec. 19, DO 141-14). submit a copy of the existing authority
to recruit together with the
Q: What are the requirements for an authority requirements specified in Sec. 20 of
to recruit? these rules (Sec. 23, DO 141-14).
A: (1) Letter of request by the agency;
(2) Certification under oath by the agency or Q: How is the authority to recruit terminated?
an agreement between the agency and the A: The authority to recruit is revoked upon the
representative or a special power of attorney issuance of an Order of its cancellation or
stipulating details of the proposed recruitment revocation by the concerned Regional Office.
activities; ● An existing authority to recruit shall be
(3) NBI clearance and biodata of the deemed cancelled upon the issuance
representative with 1 recent passport-size of an authority to recruit for another
picture; agency.
(4) Certificate of no pending recruitment case; ● The agency shall publish in a
and newspaper of general circulation once
for 2 consecutive weeks the names
/
and pictures of representatives whose POSTING OF ADDITIONAL SURETY BOND AND
authority have been revoked or PAYMENT OF REGISTRATION FEE (Sec. 28, DO
terminated furnishing the Regional 141-14)
Office proof of such publication. ● Upon the approval of the application,
● The Regional Office shall keep a record the applicant shall post an additional
of the authorities issued, revoked, or surety bond of P100k and pay a
terminated and provide the Bureau a registration fee of P5k.
copy thereof (Sec. 24, DO 141-14).
Q: What is the validity of the authority to
Q: What are the rules for the establishment of operate a branch office?
a branch office? A: The authority to operate a branch is
A: An agency intending to operate a branch co-terminus with the validity of the license of
office must apply for an authority to operate the agency unless sooner cancelled or
branch office with the Regional Office having revoked by the Regional Director (Sec. 29, DO
jurisdiction over the place where the branch 141-14).
office is located (Sec. 25, DO 141-14).
Q: May the authority to operate a branch
Q: What are the requirements in applying for office be renewed?
an authority to operate a branch office? A: Yes. An application to renew an authority to
A: operate a branch office shall be filed not
(1) Proof of payment of P2k; earlier than 60 days but not later than 10 days
(2) Certified copy of a valid license; before its expiration. The validity of the
(3) Organizational structure of the branch renewed authority to operate a branch office
office, including duly notarized appointments; shall be effective on the expiration date of the
(4) NBI clearance of the branch manager and previous authority.
staff members; ● The filing of such application after
(5) Bio-data and 1 passport size picture of the expiration of the prescribed period
branch manager and staff members; and shall be subject to penalties as
(6) Certification that the branch has an office provided for in these rules.
space with a minimum floor area of 50 square ● The agency shall submit copy of
meters for the exclusive use of the branch existing authority to operate branch
office. office together with the requirements
specified in Sec. 26 of these rules
Unless all the requirements have been (Sec. 30, DO 141-14).
complied with, the application shall not be
accepted (Sec. 26, DO 141-14). Q: What are the grounds for denial of
application of a new license, its renewal,
ACTION ON THE APPLICATION FOR authority to recruit and authority to operate
AUTHORITY TO OPERATE A BRANCH OFFICE branch office?
(Sec. 27, DO 141-14) A:
● Within 5 days from the receipt of the (1) Non-compliance with any of the
application, the Regional Director or requirements provided under these Rules;
his duly authorized representative (2) Pendency of a case for violation of the
shall evaluate the documents and Labor Code, its implementing rules or related
conduct an ocular inspection of the issuances;
branch office. (3) Conviction of a crime involving illegal
● Within 5 days from the conduct of recruitment, trafficking in persons or violation
ocular inspections, the Regional of anti-child labor laws or crims involving
Director shall approve or deny the moral turpitude by the applicant, any of its
application. officers or authorized representatives; or
(4) License to operate or authority to recruit
has been previously revoked or cancelled
(Sec. 31, DO 141-14).

/
APPEAL FROM THE DENIAL OF THE Note: All payments or fees made to or
APPLICATION (Sec. 32, DO 141-14) collected by an agency shall be evidenced by
● The Order of the Regional Director an official receipt indicating the amount paid
denying the application for issuance of and the purpose of such payment (Sec. 36, DO
the license, authority to recruit, and 141-14).
authority to operate branch office may
be appealed to the Office of the Q: When is an employer entitled to a
Secretary within 10 days of the receipt replacement of worker within cost?
of the order. A: S/he is entitled to a replacement of a
● The Office of the Secretary shall worker without additional cost or a refund of
resolve the appeal within 10 days from 75% of the service fee and transportation
the receipt of the notice of appeal. A expenses, subject to the following conditions:
motion for reconsideration can be filed (1) If the worker is certified by a
within 10 days from the receipt of the competent/government physician to
decision. A second motion for be suffering from medical or mental
reconsideration shall not be allowed. illness within 1 month from the first
● The decision of the Secretary shall day of work rendering him incapable of
become final and executory within 10 discharging the minimum
days from the receipt of the resolution. requirements of the job; or
(2) If the worker abandons the job,
REGISTRATION OF EDUCATIONAL voluntarily resigns, commits theft or
INSTITUTIONS (Sec. 33, DO 141-14) any other acts prejudicial to the
● Educational institutions setting up employer or his family within 3 months
placement offices to service their from the first day of his work.
graduate students shall register their
operations with the DOLE If the request for a replacement is beyond the
Regional/Field Office under such aforementioned periods, the employer shall
guidelines as may be prescribed by the pay an additional service fee as agreed by
Secretary. Such entities shall both parties (Sec. 37, DO 141-14).
coordinate their recruitment activities
with the PESO in the area where they Note: The employer is entitled to a refund of
could operate. 75% of the service fee if the agency failed to
provide a replacement of a worker based on
Q: What should be done in case of loss of any grounds enumerated in the preceding
license or authority? section after the lapse of 1 month from the
A: The licensee or holder of authority shall receipt of the request unless the parties
submit an affidavit of loss and pay agreed on a longer period (Sec. 38, DO
replacement fee of P1,000. 141-14).

After evaluation and approval, the Regional Q: When is an employer deemed to have
Director or its authorized representative shall forfeited his/her right?
issue a certified copy of the license or A: S/he is deemed to have forfeited his right
authority (Sec. 34, DO 141-14). for a replacement of the worker within cost or
a refund of the service fee, if he failed to avail
Q: Can fees and charges be collected? of the same within 30 days after the lapse of 1
A: As a rule, no fees whatsoever shall be month or 3 months as the case may be, as
collected neither deducted from the salaries provided in Sec. 37 unless otherwise agreed
or wages of the workers. by the parties (Sec. 39, DO 141-14).

But, an agency may charge:
(1) Service fee; and
(2) Transportation expenses (Sec. 35, DO
141-14).

/
Q: What are the recruitment procedures? Q: What is illegal recruitment?
A: The owner or authorized representative of A: Illegal recruitment shall mean any act of
the agency must abide by the following canvassing, enlisting, contracting, utilizing,
procedures: hiring, or procuring workers and includes
referrals, contract services, promising, or
advertising for local employment, whether for
profit or not, when undertaken by a
non-licensee or non-holder of authority;
provided that, any such non-licensee or
non-holder of authority who, in any manner,
offer or promises for a fee employment to two
or more persons shall be deemed engaged.

(Sec. 40, DO 141-14).

Q: What are the placement procedures?
A: The following procedures shall be followed
by the agency in the placement of the recruits:
(Sec. 42, DO 141-14).

In line with this, the Department shall adopt
and implement programs, policies, rules, and
procedure towards the eradication of illegal
recruitment activities, such as, but not limited
to the following:
(1) Providing legal assistance to victims
of illegal recruitment and related
cases;
(2) Assistance in the prosecution of
suspected illegal recruiters;
(3) Special operations such as
surveillance of persons and entities
allegedly engaged in illegal
recruitment activities; and
(4) Information and education campaign
(Sec. 43, DO 141-14; See also Secs. 44 and 46,
do 141-14).
(Sec. 41, DO 141-14).

/
Q: Where to file complaints of illegal recruitment and placement of workers for a fee
recruitment? which is charged, directly or indirectly, from the
A: The victim of illegal recruitment or other workers or employers or both.
related illegal acts or his parents or legal (d) "License" means a document issued by the
guardians may file a written report or Department of Labor authorizing a person or
complaint under oath with the Regional Office entity to operate a private employment agency.
or Field Office having jurisdiction over the (e) "Private recruitment entity" means any
place where the illegal act was committed person or association engaged in the
(Sec. 45, DO 141-14). recruitment and placement of workers, locally
or overseas, without charging, directly or

indirectly, any fee from the workers or
employers.
A. PRINCIPLES AND DEFINITION (f) "Authority" means a document issued by the
Department of Labor authorizing a person or
association to engage in recruitment and
Articles 12-13, Labor Code placement activities as a private recruitment
ART. 12. STATEMENT OF OBJECTIVES. entity.
It is the policy of the State: (g) "Seaman" means any person employed in a
a) To promote and maintain a state of full vessel engaged in maritime navigation.
employment through improved manpower (h) "Overseas employment" means employment
training, allocation and utilization; of a worker outside the Philippines.
b) To protect every citizen desiring to work (i) "Emigrant" means any person, worker or
locally or overseas by securing for him the best otherwise, who emigrates to a foreign country
possible terms and conditions of employment; by virtue of an immigrant visa or resident permit
c) To facilitate a free choice of available or its equivalent in the country of destination.
employment by persons seeking work in
conformity with the national interest; Sec. 2-5, Migrant Workers and Overseas
d) To facilitate and regulate the movement of
Filipino Act
workers in conformity with the national interest;
e) To regulate the employment of aliens, SECTION 2. DECLARATION OF POLICIES.
including the establishment of a registration (a) “In the pursuit of an independent foreign
and/or work permit system; policy and while considering national
f) To strengthen the network of public sovereignty, territorial integrity, national interest
employment offices and rationalize the and the right to self-determination paramount in
participation of the private sector in the its relations with other states, the State shall, at
recruitment and placement of workers, locally all times, uphold the dignity of its citizens
and overseas, to serve national development whether in country or overseas, in general, and
objectives; Filipino migrant workers, in particular,
g) To insure careful selection of Filipino workers continuously monitor international conventions,
for overseas employment in order to protect the adopt/be signatory to and ratify those that
good name of the Philippines abroad. guarantee protection to our migrant workers,
and endeavor to enter into bilateral agreements
with countries hosting overseas Filipino
ART. 13. DEFINITIONS. workers."
(a) "Worker" means any member of the labor
force, whether employed or unemployed. (b) The State shall afford full protection to labor,
(b) "Recruitment and placement" refers to any local and overseas, organized and unorganized,
act of canvassing, enlisting, contracting, and promote full employment and equality of
transporting, utilizing, hiring or procuring employment opportunities for all. Towards this
workers, and includes referrals, contract end, the State shall provide adequate and timely
services, promising or advertising for social, economic and legal services to Filipino
employment, locally or abroad, whether for migrant workers.
profit or not: Provided, That any person or entity
which, in any manner, offers or promises for a (c) While recognizing the significant
fee, employment to two or more persons shall contribution of Filipino migrant workers to the
be deemed engaged in recruitment and national economy through their foreign
placement. exchange remittances, the State does not
(c) "Private fee-charging employment agency" promote overseas employment as a means to
means any person or entity engaged in sustain economic growth and achieve national
/
development. The existence of the overseas manning agencies shall form part of this
employment program rests solely on the partnership.
assurance that the dignity and fundamental
human rights and freedoms of the Filipino (i) Government fees and other administrative
citizen shall not, at any time, be compromised costs of recruitment, introduction, placement
or violated. The State, therefore, shall and assistance to migrant workers shall be
continuously create local employment rendered free without prejudice to the provision
opportunities and promote the equitable of Section 36 hereof.
distribution of wealth and the benefits of
development. Nonetheless, the deployment of Filipino
overseas workers, whether land-based or
(d) The State affirms the fundamental equality sea-based, by local service contractors and
before the law of women and men and the manning agencies employing them shall be
significant role of women in nation-building. encouraged. Appropriate incentives may be
Recognizing the contribution of overseas extended to them.
migrant women workers and their particular

vulnerabilities, the State shall apply gender
sensitive criteria in the formulation and SECTION 3. DEFINITIONS.
implementation of policies and programs For the purposes of this Act:
affecting migrant workers and the composition (a) "Overseas Filipino worker" refers to a person
of bodies tasked for the welfare of migrant who is to be engaged, is engaged or has been
workers. engaged in a remunerated activity in a state of
which he or she is not a citizen or on board a
(e) Free access to the courts and quasi-judicial vessel navigating the foreign seas other than a
bodies and adequate legal assistance shall not government ship used for military or
be denied to any person by reason of poverty. In non-commercial purposes or on an installation
this regard, it is imperative that an effective located offshore or on the high seas; to be used
mechanism be instituted to ensure that the interchangeably with migrant worker.
rights and interest of distressed overseas
Filipinos, in general, and Filipino migrant (b) "Gender-sensitivity" shall mean cognizance
workers, in particular, whether of the inequalities and inequities prevalent in
regular/documented or society between women and men and a
irregular/undocumented, are adequately commitment to address issues with concern for
protected and safeguarded." the respective interests of the sexes.

(f) The right of Filipino migrant workers and all (c) "Overseas Filipinos" refers to dependents of
overseas Filipinos to participate in the migrant workers and other Filipino nationals
democratic decision-making processes of the abroad who are in distress as mentioned in
State and to be represented in institutions Sections 24 and 26 of this Act.
relevant to overseas employment is recognized

and guaranteed.
SECTION 4. DEPLOYMENT OF MIGRANT
(g) The State recognizes that the most effective WORKERS.
tool for empowerment is the possession of The State shall allow the deployment of
skills by migrant workers. The government shall overseas Filipino workers only in countries
provide them free and accessible skills where the rights of Filipino migrant workers are
development and enhancement programs. protected. The government recognizes any of
Pursuant to this and as soon as practicable, the the following as a guarantee on the part of the
government shall deploy and/or allow the receiving country for the protection of the rights
deployment only of skilled Filipino workers. of overseas Filipino workers:

(h) The State recognizes non-governmental (a) It has existing labor and social laws
organizations, trade unions, workers protecting the rights of workers, including
associations, stakeholders and other similar migrant workers;
entities duly recognized as legitimate, are (b) “It is a signatory to and/or a ratifier of
partners of the State in the protection of Filipino multilateral conventions, declarations or
migrant workers and in the promotion of their resolutions relating to the protection of workers,
welfare. The State shall cooperate with them in including migrant workers; and
a spirit of trust and mutual respect. The
significant contribution of recruitment and
/
(c) It has concluded a bilateral agreement or SECTION 5. TERMINATION OR BAN ON
arrangement with the government on the DEPLOYMENT.
protection of the rights of overseas Filipino Notwithstanding the provisions of Section 4
Workers: Provided, That the receiving country is hereof, in pursuit of the national interest or
taking positive, concrete measures to protect when public welfare so requires, the POEA
the rights of migrant workers in furtherance of Governing Board, after consultation with the
any of the guarantees under subparagraphs (a), Department of Foreign Affairs, may, at any time,
(b) and (c) hereof. terminate or impose a ban on the deployment
of migrant workers.
In the absence of a clear showing that any of
the aforementioned guarantees exists in the
country of destination of the migrant workers,
no permit for deployment shall be issued by the Omnibus Rules and Regulations Implementing
Philippine Overseas Employment the Migrant Workers and Overseas Filipinos
Administration (POEA). Act of 1995 as Amended by RA 10022, Secs.
1-2
The members of the POEA Governing Board
who actually voted in favor of an order allowing Section 1. Declaration of Policies. –
the deployment of migrant workers without any (a) In the pursuit of an independent foreign
of the aforementioned guarantees shall suffer policy and while considering national
the penalties of removal or dismissal from sovereignty, territorial integrity, national interest
service with disqualification to hold any and the right to self-determination paramount
appointive public office for five (5) years. its relations with other states, the State shall, all
Further, the government official or employee times, uphold the dignity of its citizens whether
responsible for the issuance of the permit or for in the country or overseas, in general, the
allowing the deployment of migrant workers in Filipino migrant workers, in particular.
violation of this section and in direct
contravention of an order by the POEA (b) The State shall afford full protection to labor,
Governing Board prohibiting deployment shall local and overseas, organized and unorganized,
be meted the same penalties in this section. and promote full employment and equality of
employment opportunities for all. Toward this
For this purpose, the Department of Foreign end, the State shall provide adequate and timely
Affairs, through its foreign posts, shall issue a social, economic and legal services to Filipino
certification to the POEA, specifying therein the migrant workers.
pertinent provisions of the receiving country's
labor/social law, or the (c) While recognizing the significant
convention/declaration/resolution, or the contribution of Filipino migrant workers to the
bilateral agreement/arrangement which protect national economy through their foreign
the rights of migrant workers. exchange remittances, the State does not
promote overseas employment as a means to
The State shall also allow the deployment of sustain economic growth and achieve national
overseas Filipino workers to vessels navigating development. The existence of the overseas
the foreign seas or to installations located employment program rest solely on the
offshore or on high seas whose assurance that the dignity and fundamental
owners/employers are compliant with human rights and freedom of the Filipino citizen
international laws and standards that protect shall not, at any time, be compromised or
the rights of migrant workers. violated. The State, therefore, shall continuously
create local employment opportunities and
The State shall likewise allow the deployment of promote the equitable distribution of wealth
overseas Filipino workers to companies and and the benefits of development.
contractors with international operations:
Provided, That they are compliant with (d) The State affirms the fundamental equality
standards, conditions and requirements, as before the law of women and men and the
embodied in the employment contracts significant role of women in nation-building.
prescribed by the POEA and in accordance with Recognizing the contribution of women migrant
internationally-accepted standards. workers and their particular vulnerabilities, the
State shall apply gender sensitive criteria in the
formulation and implementation of policies and
programs affecting migrant workers and the
/
composition of bodies tasked for the welfare of kind of intervention with the authorities in the
migrant workers. country where they are found.

(e) Free access to the courts and quasi-judicial (d) Legal Resident – a person who has obtained
bodies and adequate legal assistance shall not permanent residency status in accordance with
be denied to any persons by reason of poverty. the law of the host country.
In this regard, it is imperative that an effective
mechanism be instituted to ensure that the (e) Documented Migrant Workers - (1) those
rights and interest of distressed overseas who possess valid passports and visas or
Filipinos, in general, and Filipino migrant permits to stay in the host country and whose
workers, in particular, documented or contracts of employment have been processed
undocumented, are adequately protected and by the POEA if required by law or regulation; or
safeguarded. (2) those registered by the Migrant-Workers and
Other Overseas Filipinos Resource Center or by
(f) The right of Filipino migrant workers and all the Embassy. Those who do not fall under the
overseas Filipinos to participate in the preceding paragraph are considered
democratic decision-making processes of the undocumented migrant workers.
State and to be represented in institutions
relevant to overseas employment is recognized (f) Undocumented Filipinos –
and guaranteed. (1) Those who acquired their passports through
fraud or misrepresentation;
(g) The State recognizes that the ultimate (2) Those who possess expired visas or permits
protection to all migrant workers is the to stay;
possession of skills. Pursuant to this and as (3) Those who have no travel document what so
soon as practicable, the government shall ever
deploy and/or allow the deployment only to (4) Those who have valid but in appropriate
skilled Filipino workers. visas;

(h) Non-governmental organizations, duly (g) Gender Sensitivity – cognizant of the
recognized as legitimate, are partners of the inequalities and inequities prevalent in society
State in the protection of Filipino migrant between women and men and a commitment to
workers and in the promotion of their welfare, address issues with concern for the respective
the State shall cooperate with them in a spirit of interest of the sexes.
trust and mutual respect.
(h) Legal Assistance – includes, in appropriate

cases, giving legal advice, active participation in
Section 2. Definitions. – litigation whenever allowed by local laws, hiring
(a) Migrant Workers or Overseas Filipino of private lawyers, documentation assistance
Workers – a person who is to be engaged, is payment of bail bonds, court fees and other
engaged, or has been engaged in a remunerated litigation expenses.
activity in a state which he or she is not a legal
resident. A person to be engaged in a (i) Bonfire Non-Government Organizations
remunerated activity” refers to an applicant (NGOs) non-government organizations duly
worker who has been promised or assured registered with appropriate Philippine
employment overseas and acting on such government agencies which, active partners of
promise or assurance sustains damage and/or the Philippine Government in the protection of
injury. Filipino migrant workers and the promotion of
their welfare.
(b) Overseas Filipinos – are migrant workers,
other Filipino nationals and their dependents (j) Skilled Workers – those who have obtained
abroad. an academic degree or sufficient training or
experience in the job for which they are
(c) Overseas Filipino in distress – Overseas applying, as may be determined by the
Filipinos as defined in Section3(c) of the Act Secretary of Labor and Employment.
shall be deemed in distress in cases where they
have valid medical, psychological or legal (k) Underage Migrant Workers – those who are
assistance problems requiring treatment, below 18 years or below the minimum age
hospitalization, counseling, legal representation requirement for overseas employment as
is specified in Sections 24 and 26 or any other determined by the Secretary of Labor and
Employment.
/
(l) Employment Agency – any person, a. Promote and develop overseas employment
partnership or corporation duly licensed by the opportunities in cooperation with relevant
Secretary of Labor and Employment to engage government institutions and the private sector;
in the recruitment and placement of workers for b. Establish the environment conducive to the
overseas employment for a fee which is continued operations of legitimate, responsible
charged, directly or indirectly, from the workers and professional private agencies;
or employers or both. c. Afford protection to Filipino workers and their
families, promote their interests and safeguard
(m) Manning Agency – any person, partnership their welfare; and
or corporation duly licensed by the Secretary of d. Develop and implement programs for the
Labor and Employment to engage in the effective monitoring of returning contract
recruitment and placement of seafarers for workers promoting their re-training and
vessels plying international waters and for re-employment of their smooth re-integration
related maritime activities. into the mainstream of the national economy.

(n) Service Contractor – any person,-partnership
or corporation duly licensed by the Secretary of RULE II
Labor and Employment to recruit workers for its DEFINITION OF TERMS
accredited projects or contracts overseas.
For purposes of these Rules, the following
(o) Labor Code – Presidential Decree No. 442, terms are defined as follows:
as amended.
a. Administration – the Philippine Overseas
(p) Act – the “Migrant Workers and Overseas Employment Administration (POEA).
Filipinos Act of 1995,” to be used
interchangeably with the “R.A 8042.” b. Administrator – the Administrator of the
POEA.
(q) DFA-the Department of Foreign Affairs.
c. Agency – A private employment or a manning
(r) DOLE -the Department of Labor and agency as defined herein.
Employment.
d. Allottee – any person named or designated
(s) POEA – the Philippine Overseas by the overseas contract workers as the
Employment Administration. recipient of his remittance to the Philippines.

(t) OWWA – the Overseas Workers Welfare e. Balik-Manggagawa (Vacationing Worker) – a
Administration. land-based contract worker who is on a
vacation or on an emergency leave and who is
(u) NLRC -the National Labor Relations returning to the same worksite to resume his
Commission. employment.

(v) BLE – the Bureau of Local Employment f. Beneficiary – the person/s to whom
compensation benefits due under an overseas
(w) TESDA – the Technical Education and Skills employment contract are payable by operation
Development Authority. of law or those to whom proceeds of a life or
accident insurance are likewise payable.
(x) DOJ – the Department of Justice.
g. Center – the POEA Regional Center in Cebu
(y) DOST- the Department of Science and and such other regional centers as may
Technology. hereinafter be established.

h. Code – the Labor Code of the Philippines, as
amended.
1991 POEA Rules: Book I, Rules I - II
RULE I i. Collective Bargaining Agreement – the
GENERAL STATEMENT OF POLICY negotiated contract between a legitimate labor
organization and the employer concerning
It shall be the policy of the Administration to: wages, hours of work and all other terms and
conditions of employment in a bargaining unit,
/
including mandatory provisions for grievance x. Manning Agreement – an agreement entered
and arbitration machineries. into by and between the principal and the
licensed manning agency defining the
j. Contract Worker – any person working or who responsibilities of both parties with respect to
has worked overseas under a valid employment the employment of ship personnel for their
contact. enrolled vessels.

k. Department – the Department of Labor and y. Commission – the National Labor Relation
Employment (DOLE). Commission.

l. Directorate – the executive body of the z. Name Hire – a worker who is able to secure
Administration composed of its Administrator, employment overseas on his own without the
Deputy Administrators and Directors as defined assistance or participation of any agency.
herein.
aa. Non-Licensee – any person, partnership or
m. Director-LRO – the Director of the Licensing corporation who has not been issued a valid
and Regulation Office. license to engage in recruitment and placement,
or whose license has been suspended, revoked
n. Director-PSO – the Director of the or cancelled.
Pre-Employment Services Office.
bb. One-Stop Processing Center – an
o. Director-AO – the Director of the Adjudication inter-agency servicing body designed to
Office. facilitate the documentation of contract
workers.
p. Director WEO – the Director of the Welfare
and Employment Office. cc. Overseas Employment – employment of a
worker outside the Philippines including
q. Employer – any person, partnership or employment on board vessels plying
corporation, whether local or foreign, directly international waters, covered by a valid
engaging the services of Filipino workers employment contract.
overseas.
dd. Philippine Shipping Company – any person,
r. Foreign Exchange (Forex) Earnings – the partnership or corporation registered under the
earnings in terms of US dollars (US$) or any laws of the Philippines and duly accredited to
other acceptable foreign currency of overseas engage in overseas shipping activities by the
workers and agencies. Maritime Industry Authority (MARINA).

s. Governing Board – the policy-making body of ee. Philippine Registered Vessel – vessels duly
the Administration. registered in the Philippines.

t. Government-to-Government Hiring – ff. Placement Fee – the amount charged by a
recruitment and placement of Filipino workers private employment agency from a worker for
by foreign government ministries or its services in securing employment.
instrumentalities through the Administration.
gg. Principal – any foreign person, partnership
u. Job Fair – an activity conducted outside of or corporation hiring Filipino workers through an
an agency’s authorized business address agency.
whereby applicants are oriented on employment
opportunities and benefits provided by foreign hh. Private Employment Agency – any person,
principals and employers. partnership or corporation engaged in the
recruitment and placement of workers for a fee
v. License – a document issued by the which is charged, directly or indirectly, from the
Secretary authorizing a person, partnership or workers or employees or both.
corporation to operate a private employment
agency or a manning agency. ii. Recruitment Agreement – the agreement
entered into by and between the foreign
w. Manning Agency – any person, partnership principal and the licensed private employment
or corporation duly licensed by the Secretary to agency defining the responsibilities of both
recruit seafarers for vessel plying international parties with respect to the employment of
waters and for related maritime activities. workers for their overseas projects.
/
jj. Recruitment and Placement – any act of In Phil. Ass. of Service Exporters, Inc. v. Drilon,
canvassing, enlisting, contracting, transporting, where DOLE Department Order No. 1, Series
utilizing, hiring or procuring workers and of 1998, the department order, a police power
includes referrals, contract services, promising measure, is constitutional.
or advertising for employment, locally or
abroad, whether for profit or not; provided, that As a general rule, official acts enjoy a
any person or entity which, in any manner, presumed validity. In the absence of clear and
offers or promises for a fee employment to two convincing evidence to the contrary, the
or more persons shall be deemed engaged in presumption logically stands. In this case,
recruitment and placement.
PASEI has shown no satisfactory reason why

kk. Regional Director – the head of the Regional the contested measure should be nullified.
Offices of the Department.
There is no question that Department Order
ll. Regional Extension Unit – the field offices of No. 1 applies only to "female contract
the Administration in designated regions in the workers," but it does not thereby make an
Philippines. undue discrimination between the sexes. It is
well-settled that "equality before the law"
mm. Regional labor Center (RLC) – the regional under the Constitution does not import a
field office of the Administration. perfect Identity of rights among all men and

women. It admits of classifications, provided
nn. Regional Offices – the regional office of the
Department of Labor and Employment. that (1) such classifications rest on
substantial distinctions; (2) they are germane
oo. Remittance – the amount or portion of the to the purposes of the law; (3) they are not
foreign exchange earnings sent by the worker to confined to existing conditions; and (4) they
the Philippines. apply equally to all members of the same
class.
pp. Secretary – the Secretary of Labor and
Employment. The Court is satisfied that the classification
made-the preference for female workers —
qq. Service Fee – the amount charged by a
rests on substantial distinctions. As a matter
licensee from its foreign employer-principal as
payment for actual services rendered in relation of judicial notice, the Court is well aware of
to the recruitment and employment of workers the unhappy plight that has befallen our
for said principal. female labor force abroad, especially
domestic servants, amid exploitative working
rr. Valid Employment Contract – a written conditions marked by, in not a few cases,
agreement entered into by and between the physical and personal abuse. The sordid tales
employer and/or the local agency and the of maltreatment suffered by migrant Filipina
overseas contract worker containing the terms workers, even rape and various forms of
and conditions of employment that are in
torture, confirmed by testimonies of returning
consonance with the master employment
workers, are compelling motives for urgent
contract as approved by the Administration.
Government action. As precisely the caretaker
ss. Verification – the action of labor attaché or of Constitutional rights, the Court is called
any other officer designated by the Secretary of upon to protect victims of exploitation. In
Labor and Employment in the Philippine fulfilling that duty, the Court sustains the
Embassy or Consulate, in reviewing Government's efforts.
employment documents of Filipino nationals
with the view to establish the existence of the Q: Is a recruitment agency is required to post
employing company, its ability to hire workers at an appeal bond as required in the POEA Rules
the prescribed rates, at desirable working
to perfect the appeal from the decision of
conditions consistent with the standards
POEA to NLRC?
prescribed by the Administration and terms and
conditions prevailing in the country of A: Yes. The POEA Rules are clear. A reading
employment. thereof readily shows that in addition to the
cash and surety bonds and the escrow money,
an appeal bond in an amount equivalent to the
monetary award is required to perfect an
/
appeal from a decision of the POEA. It is and regulate the relations between workers
intended to further insure the payment of the and employers. For the State assures the
monetary award in favor of the employee if it basic rights of all workers to self-organization,
is eventually affirmed on appeal to the collective bargaining, security of tenure, and
NLRC.146 just and humane conditions of work.

It is true that the cash and surety bonds and
the money placed in escrow are supposed to
B. RECRUITMENT AND PLACEMENT
guarantee the payment of all valid and legal
claims against the employer, but these claims
are not limited to monetary awards to DEFINITION; ILLEGAL RECRUITMENT;
employees whose contracts of employment PROHIBITED ACTS
have been violated. The POEA can go against
these bonds also for violations by the recruiter
of the conditions of its license, the provisions Arts. 13(b), 34-35, 38 and 39, Labor Code
of the Labor Code and its implementing rules, ART. 13. Definitions.
E.O. 247 (reorganizing the POEA) and the
POEA Rules, as well as the settlement of other X X X
liabilities the recruiter may incur.
(b) "Recruitment and placement" refers to any
Overseas recruiters are subject to more act of canvassing, enlisting, contracting,
stringent requirements because of the special transporting, utilizing, hiring or procuring
workers, and includes referrals, contract
risks to which our workers abroad are
services, promising or advertising for
subjected by their foreign employers, against employment, locally or abroad, whether for
whom there is usually no direct or effective profit or not: Provided, That any person or entity
recourse. The overseas recruiter is solidarily which, in any manner, offers or promises for a
liable with the foreign employer. The bonds fee, employment to two or more persons shall be
and the escrow money are intended to insure deemed engaged in recruitment and placement.
more care on the part of the local agent in its
choice of the foreign principal.
ART. 34. Prohibited Practices — It shall be
Q: Does the arbitration branch of NLRC have unlawful for any individual, entity, licensee, or
holder of authority:
jurisdiction over a case of a Filipino contract
(a) To charge or accept, directly or indirectly, any
worker employed in another country? amount greater than that specified in the
A: Yes. Based on the Section 217 of the Labor schedule of allowable fees prescribed by the
Code and Section 10 of RA 8042, labor Secretary of Labor, or to make a worker pay any
arbiters have original and exclusive amount greater than that actually received by
jurisdiction over claims arising from him as a loan or advance;
employer-employee relations , including (b) To furnish or publish any false notice or
termination disputes involving all workers , information or document in relation to
among whom are overseas Filipino workers recruitment or employment;
(OFW).147 (c) To give any false notice, testimony,
information or document or commit any act of

misrepresentation for the purpose of securing a
Whether employed locally or overseas, all license or authority under this Code;
Filipino workers enjoy the protective mantle of (d) To induce or attempt to induce a worker
Philippine labor and social legislation, already employed to quit his employment in
contract stipulations to the contrary order to offer him to another unless the transfer
notwithstanding . This pronouncement is in is designed to liberate the worker from
keeping with the basic public policy of the oppressive terms and conditions of employment;
State to afford protection to labor, promote (e) To influence or to attempt to in uence any
full employment, ensure equal work person or entity not to employ any worker who
opportunities regardless of sex, race or creed, has not applied for employment through his
agency;
146
See JMM Promotion and Management, Inc. v. (f) To engage in the recruitment or placement of
CA. workers in jobs harmful to public health or
147
See PNB v. Cabansag.
/
morality or to the dignity of the Republic of the any unlawful or illegal transaction, enterprise or
Philippines; scheme defined under the first paragraph
(g) To obstruct or attempt to obstruct inspection hereof. Illegal recruitment is deemed
by the Secretary of Labor or by his duly committed in large scale if committed against
authorized representatives; three (3) or more persons individually or as a
(h) To fail to file reports on the status of group.
employment, placement vacancies, remittance
of foreign exchange earnings, separation from (c) The Secretary of Labor and Employment or
jobs, departures and such other matters or his duly authorized representatives shall have
information as may be required by the Secretary the power to cause the arrest and detention of
of Labor; such non-licensee or non-holder of authority if
(i) To substitute or alter employment contracts after investigation it is determined that his
approved and verified by the Department of activities constitute a danger to national
Labor from the time of actual signing thereof by security and public order or will lead to further
the parties up to and including the periods of exploitation of job-seekers. The Secretary shall
expiration of the same without the approval of order the search of the office or premises and
the Secretary of Labor; seizure of documents, paraphernalia, properties
(j) To become an officer or member of the Board and other implements used in illegal
of any corporation engaged in travel agency or to recruitment activities and the closure of
be engaged directly or indirectly in the companies, establishments and entities found
management of a travel agency; and to be engaged in the recruitment of workers for
(k) To withhold or deny travel documents from overseas employment, without having been
applicant workers before departure for monetary licensed or authorized to do so.
or financial considerations other than those

authorized under this Code and its implementing
rules and regulations. ART. 39. Penalties. — (a) The penalty of life
imprisonment and a fine of One Hundred

Thousand Pesos (P100,000.00) shall be
ART. 35. Suspension and/or Cancellation of imposed if illegal recruitment constitutes
License or Authority. — The Minister of Labor economic sabotage as defined herein;
shall have the power to suspend or cancel any
license or authority to recruit employees for (b) Any licensee or holder of authority found
overseas employment for violation of rules and violating or causing another to violate any
regulations issued by the Ministry of Labor, the provision of this Title or its implementing rules
Overseas Employment Development Board, or and regulations shall, upon conviction thereof,
for violation of the provisions of this and other suffer the penalty of imprisonment of not less
applicable laws, General Orders and Letters of than two years nor more than five years or a fine
Instructions. of not less than P10,000 nor more than
P50,000, or both such imprisonment and fine, at

the discretion of the court;
ART. 38. Illegal Recruitment. — (a) Any
recruitment activities, including the prohibited (c) Any person who is neither a licensee nor a
practices enumerated under Article 34 of this holder of authority under this Title found
Code, to be undertaken by non-licensees or violating any provision thereof or its
non-holders of authority, shall be deemed illegal implementing rules and regulations shall, upon
and punishable under Article 39 of this Code. conviction thereof, suffer the penalty of
The Department of Labor and Employment or imprisonment of not less than four years nor
any law enforcement officer may initiate more than eight years or a fine of not less than
complaints under this Article. P20,000 nor more than P100,000 or both such
imprisonment and fine, at the discretion of the
(b) Illegal recruitment when committed by a court;
syndicate or in large scale shall be considered
an offense involving economic sabotage and (d) If the offender is a corporation, partnership,
shall be penalized in accordance with Article 39 association or entity, the penalty shall be
hereof. imposed upon the officer or officers of the
corporation, partnership, association or entity
Illegal recruitment is deemed committed by a responsible for violation; and if such officer is
syndicate if carried out by a group of three (3) an alien, he shall, in addition to the penalties
or more persons conspiring and/or herein prescribed, be deported without further
confederating with one another in carrying out proceedings;
/
(e) In every case, conviction shall cause and (f) To engage in the recruitment of placement of
carry the automatic revocation of the license or workers in jobs harmful to public health or
authority and all the permits and privileges morality or to dignity of the Republic of the
granted to such person or entity under this Title, Philippines;
and the forfeiture of the cash and surety bonds
in favor of the Overseas Employment (g) To obstruct or attempt to obstruct inspection
Development Board or the National Seamen by the Secretary of Labor and Employment or by
Board, as the case may be, both of which are his duly authorized representative;
authorized to use the same exclusively to
promote their objectives. (h) To fail to submit reports on the status of
employment, placement vacancies, remittances
of foreign exchange earnings, separations from
jobs, departures and such other matters or
RA 8042, Secs. 6-9 information as may be required by the Secretary
Sec. 6. DEFINITIONS. – For purposes of this of Labor and Employment;
Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, (i) To substitute or alter to the prejudice of the
utilizing, hiring, procuring workers and includes worker, employment contracts approved and
referring, contact services, promising or verified by the Department of Labor and
advertising for employment abroad, whether for Employment from the time of actual signing
profit or not, when undertaken by a non-license thereof by the parties up to and including the
or non-holder of authority contemplated under period of the expiration of the same without the
Article 13(f) of Presidential Decree No. 442, as approval of the Department of Labor and
amended, otherwise known as the Labor Code Employment;
of the Philippines. Provided, that such
non-license or non-holder, who, in any manner, (j) For an officer or agent of a recruitment or
offers or promises for a fee employment abroad placement agency to become an officer or
to two or more persons shall be deemed so member of the Board of any corporation
engaged. It shall likewise include the following engaged in travel agency or to be engaged
acts, whether committed by any persons, directly on indirectly in the management of a
whether a non-licensee, non-holder, licensee or travel agency;
holder of authority.
(k) To withhold or deny travel documents from
(a) To charge or accept directly or indirectly any applicant workers before departure for monetary
amount greater than the specified in the or financial considerations other than those
schedule of allowable fees prescribed by the authorized under the Labor Code and its
Secretary of Labor and Employment, or to make implementing rules and regulations;
a worker pay any amount greater than that
actually received by him as a loan or advance; (l) Failure to actually deploy without valid
reasons as determined by the Department of
(b) To furnish or publish any false notice or Labor and Employment; and
information or document in relation to
recruitment or employment; (m) Failure to reimburse expenses incurred by
the workers in connection with his
(c) To give any false notice, testimony, documentation and processing for purposes of
information or document or commit any act of deployment, in cases where the deployment
misrepresentation for the purpose of securing a does not actually take place without the worker’s
license or authority under the Labor Code; fault. Illegal recruitment when committed by a
syndicate or in large scale shall be considered as
(d) To induce or attempt to induce a worker offense involving economic sabotage.
already employed to quit his employment in
order to offer him another unless the transfer is Illegal recruitment is deemed committed by a
designed to liberate a worker from oppressive syndicate carried out by a group of three (3) or
terms and conditions of employment; more persons conspiring or confederating with
one another. It is deemed committed in large
(e) To influence or attempt to influence any scale if committed against three (3) or more
persons or entity not to employ any worker who persons individually or as a group.
has not applied for employment through his
agency; The persons criminally liable for the above
offenses are the principals, accomplices and
/
accessories. In case of juridical persons, the defined in this Act. The penalties shall be
officers having control, management or direction imposed upon them.
of their business shall be liable.

SEC. 9. VENUE. – A criminal action arising from
SEC. 7. PENALTIES. – illegal recruitment as defined herein shall be
filed with the Regional Trial Court of the
(a) Any person found guilty of illegal province or city where the offense was
recruitment shall suffer the penalty of committed or where the offended party actually
imprisonment of not less than twelve (12) years resides at the same time of the commission of
and one (1) day but not more than twenty (20) the offense: Provided, That the court where the
years and a fine of not less than one million criminal action is first filed shall acquire
pesos (Pl,000,000) not more than two million jurisdiction to the exclusion of other courts.
pesos (P2,000,000); Provided, however, That the aforestated
provisions shall also apply to those criminal
(b) The penalty of life imprisonment and a fine actions that have already been filed in court at
of not less than two million pesos (P2,000,000) the time of the effectivity of this Act.
nor rriore than Five million pesos (P5,000,000)
shall be imposed if illegal recruitment
constitutes economic sabotage as defined
therein. Omnibus Rules and Regulations Implementing
the Migrant Workers and Overseas Filipinos
Provided, however, that the maximum penalty Act of 1995 as Amended by RA 10022, Secs.
shall be imposed if the person illegally recruited 9-13
is less. than eighteen (18) years of age or
committed by·a non-licensee or non-holder of X X X
authority.

(c) Any person found guilty of any of the· Section 10. Crime Involving Economic
prohibited acts shall suffer the penalty of Sabotage. – Illegal recruitment when
imprisonment of not less than six (6) years and committed by a syndicate or in large scale shall
one (1) day but not more than twelve (12) years be considered an offense involving economic
and a fine of not less than five hundred sabotage. Illegal recruitment is deemed
thousand pesos (P500,000) nor more than one committed by a syndicate if carried out by a
million pesos (Pl,000,000). group of three (3) or more persons conspiring
or confederating with one another. it is deemed
If the offender is an alien, he or she shall, in committed in large scale if committed against
addition to the penalties herein prescribed, be three (3) or more persons individually or as a
deported without further proceedings. group.

In every case, conviction shall cause and carry
the automatic revocation of the license or Section 11. Persons Responsible. – The
registration of the recruitment/manning agency, persons criminally liable for the above offenses
lending institutions, training school or medical are the principals, accomplices and
clinic. accessories. In case of juridical persons, the
officer having control, management or direction
of their business shall be liable.
SEC. 8. PROHIBITION ON OFFICIALS AND
EMPLOYEES. – It shall be unlawful for any
official or employee of the Department of Labor Section 12. Independent Administrative Action.
and Employment, the Philippine Overseas – The institution of the criminal action is
Employment Administration, or the Overseas without prejudice to any administrative action
Workers Welfare Administration, or the against the licensee or holder of authority
Department of Foreign Affairs, or other cognizable by the POEA which could proceed
government agencies involved in the independently of the criminal action.
implementation of this Act, or their relatives
within the fourth civil degree of consanguinity
or affinity, to engage, directly or indirectly, in the
business of recruiting migrant workers as
/
Section 13. Disqualification. – The following dignity of the Republic of the
personnel shall be prohibited from engaging Philippines;
directly or indirectly in the business of (7) To obstruct or attempt to obstruct
recruitment of migrant workers; inspection by the Secretary of Labor or
(a) Any official or employee of the DOLE, POEA by his duly authorized representatives;
OWWA, DFA, DOJ and other government (8) To fail to file reports on the status of
agencies involved in the implementation of this employment, placement vacancies,
Act, regardless of the status of his/her
remittance of foreign exchange
employment; and
(b) Any of his/her relatives within the fourth civil earnings, separation from jobs,
degree of consanguinity or affinity. departures and such other matters or
information as may be required by the
Any government official or employee found to Secretary of Labor;
be violating this Section shall be charged (9) To substitute or alter employment
administratively, according to Civil Service Rules contracts approved and verified by the
and Regulations without prejudice to criminal Department of Labor from the time of
prosecution. actual signing thereof by the parties up

to and including the periods of
The government agency concerned shall
monitor and initiate, upon its initiative or upon expiration of the same without the
the petition of any private individual, action approval of the Secretary of Labor;
against erring officials and employees, and/or (10) To become an officer or member of
their relatives. the Board of any corporation engaged
in travel agency or to be engaged

directly or indirectly in the management
Q: What are the prohibited practices?
of a travel agency; and
A: The following are unlawful acts and
omissions: (11) To withhold or deny travel
(1) To charge or accept, directly or documents from applicant workers
before departure for monetary or
indirectly, any amount greater than that
financial considerations other than
specified in the schedule of allowable
those authorized under this Code and
fees prescribed by the Secretary of
its implementing rules and regulations.
Labor, or to make a worker pay any
amount greater than that actually

received by him as a loan or advance; Q: What is the consequence of recruitment
(2) To furnish or publish any false notice or violations?
A: Aside from criminal liability, the POEA rules
information or document in relation to
enumerate the recruitment violations that may
recruitment or employment;
cause the imposition of administrative
(3) To give any false notice, testimony,
sanctions, including suspension or
information or document or commit
cancellation of license.
any act of misrepresentation for the

purpose of securing a license or
The grounds for imposition of administrative
authority under this Code;
sanctions include:
(4) To induce or attempt to induce a ● Engaging in act/ s of
worker already employed to quit his misrepresentation for the purpose of
employment in order to offer him to securing a license or renewal thereof,
another unless the transfer is designed such as giving false testimonies or
to liberate the worker from oppressive falsified documents;
terms and conditions of employment; ● Engaging in the recruitment or
(5) To influence or to attempt to influence placement of workers in jobs harmful
any person or entity not to employ any to public health or morality or to the
worker who has not applied for dignity of the Republic of the
employment through his agency; Philippines;
(6) To engage in the recruitment or ● Charging of any fee before
placement of workers in jobs harmful employment is obtained for an
to public health or morality or to the applicant worker;
/
● Charging of any fee in amount· ● POEA Rules provide that before
exceeding the allowable rate; and recruiting any worker, the private
● Obstructing inspections by DOLE. employment agency shall submit an
undertaking that the agency can sue
Q: Who has jurisdiction to suspend or cancel and be sued jointly and solidarily with
a license? the principal or foreign-based
A: The DOLE Secretary and the POEA employer for any of the violations of
Administrator have concurrent jurisdiction to the recruitment agreement, and the
suspend or cancel a license.148 contracts of employment.
● Even if the recruitment agency and the
In Eastern Assurance and Surety Corp. v. principal had already severed their
Secretary of Labor, the Supreme Court agency agreement at the time the
explains that the penalties of suspension and worker was injured, the recruitment
cancellation of license or authority are agency may still be sued for violation
prescribed for violations of POEA rules, of the employment contract, if no
among other causes. The Secretary of Labor notice of the agency agreement's
has the power under Article 35 to apply these termination was given to the
sanctions. He also has the authority, under employee. This is pursuant to Article
Article 36, not only to 'restrict and regulate the 1921 of the Civil Code, which states
recruitment and placement activities of all that if the agency has been entrusted
agencies,' but also to 'promulgate rules and for the purpose of contracting with
regulations to carry out the objectives and specified persons, its revocation shall
implement the provisions' governing said not prejudice the latter if they were not
activities. Pursuant to this rule-making power, given notice thereof.
the Secretary of Labor authorized the POEA to ● The obligations covenanted in the
condμct the necessary proceedings for the recruitment agreement entered into by
suspension or cancellation of the license or and between the local agent and its
authority of any agency or entity for certain foreign principal are not coterminous
enumerated offenses x x x. with the term of such agreement if
either or both of the parties decide to
Implicit in these powers is the award of end the agreement, the responsibilities
appropriate relief to the victims of the of such parties towards the contracted
offenses committed by the respondent employees under the agreement do
agency or contractor, specially the refund or not at all end. It extends up to and until
reimbursement of such fees as may have the expiration of the employment
been fraudulently or otherwise illegally contracts of the employees recruited
collected, or such money, goods or services and employed pursuant to the said
imposed and accepted in excess of what is recruitment agreement. 150
licitly prescribed. It would be illogical and
absurd to limit the sanction on an offending EXCEPTIONS: The rule holding the agency
recruitment agency or contractor to solidarily liable admits of exceptions
suspension or cancellation of its license, depending on peculiar circumstances. In one
without the concomitant obligation to repair case where the workers themselves insisted
the injury caused to its victims. for the recruitment agency to send them back
to their foreign employer despite their
Q: What is the liability of a recruitment knowledge of its inability to pay their wages,
agency? the Court absolved the agency from liability.
A: GENERAL RULE: A recruitment agency is
solidarily liable for the unpaid salaries of a Recall: A recruitment agency is obligated to
worker it recruited for employment with a protect and tend to the welfare of its recruits.
foreign principal.149

148
See Trans Action Overseas Corp v. Secretary of
Labor
149
See Royal Crown v. NLRC. 150
See Catan v. NLRC.
/
Q: Who is an illegal recruiter?
(7) Obstructing inspection; and
A: There are two kinds of illegal recruiter: first,
(8) Contract substitution.
a licensee; or second, a non-licensee (or a
Those relating to overseas employment (The
holder or non-holder of an authority to recruit).
8 acts listed above also apply for overseas

employment.) - Aside than those 8, other
Q: How is illegal recruitment committed?
acts include:
A: The law distinguishes between illegal
(9) Misrepresentation in
recruitment by a non-licensee and other illegal
documentation;
recruitment acts by either a non-licensee or a
(10) Nonsubmission of reports;
licensee as well as illegal recruitment as
(11) Involvement in travel agency;
economic sabotage.
(12) Withholding of documents;
ILLEGAL RECRUITMENT BY A (13) Failure to deploy;
NON-LICENSEE (14) Failure to reimburse;
(15) Non-Filipino manager;
Illegal recruitment by a non-licensee is (16) Excessive interest;
committed in cases of: (17) Specifying a loan entity;
(18) Non-negotiation of loan;
Any recruitment activity, done either for local (19) Specifying a medical entity;
or overseas employment, whether for profit (20) Specifying a training entity;
or not, by any individual or entity without the (21) Violation of suspension; and
required license from the BLE or the (22) Collection of insurance premiums.
POEA.151
TWO ELEMENTS: ILLEGAL RECRUITMENT AS ECONOMIC
(1) The offender has no valid license or SABOTAGE
authority required by law to enable one to
lawfully engage in recruitment and Illegal recruitment shall be considered an
placement of workers; and offense involving economic sabotage if any
2) The offender undertakes either any of the qualifying circumstances exists,
activity within the meaning of recruitment namely:
and placement defined under Art. 13(b), or (1) When illegal recruitment is committed by
any prohibited practices under Article 34. a syndicate, i.e., if it is carried out by a group
of three or more persons conspiring and/ or
The activities considered as "recruitment confederating with one another; or
and placement are: canvassing, enlisting, (2) When illegal recruitment is committed in
contracting, transporting, utilizing, hiring or large scale, i.e., if it is committed against
procuring workers, and includes referral, three or more persons individually or as a
contract services, promising or advertising group.153
for employment locally or abroad, whether
for profit or not.”152 Note: Illegal recruitment in large scale and
illegal recruitment by a syndicate are
OTHER ILLEGAL RECRUITMENT ACTS BY separate or independent categories. They
EITHER A NON-LICENSEE OR A LICENSEE need not coincide within the same case.
These other illegal recruitment acts include:

Note: A worker who suffers pecuniary
Those relating to a local employment damage, regardless of the amount, as a result
(1) Overcharging; of a previous or simultaneous false pretense
(2) False notice; resorted to by a nonlicensee or rionholder of
(3) Misrepresentation to secure license; authority, may complain of estafa under
(4) Inducing worker to quit; Article 315, paragraph 2(a) of the Revised
(5) Inducement not to employ; Penal Code, aside from illegal recruitment.
(6) Recruitment for harmful jobs; ● The elements of the crime are:
151
See Art. 38, Labor Code. See Art. 13, Labor Code; See also People v. Diaz;
153
152
See Art. 13, Labor Code. People v. Saulo.
/
(1) that the accused defrauded order to induce the latter to tender payment of
another by abuse of confidence or by fees.154
means of deceit, and
(2) that damage or prejudice capable Where such act or representation is not
of pecuniary estimation is caused to proven, there is no recruitment activity and
the offended party or third person. conviction for illegal recruitment has no basis.

In People v. Yabut, the Court ruled a person In People v. Goce, the Court ruled that making
may be convicted separately of illegal referrals to the agency is engaging in
recruitment and estafa. The offense of illegal recruitment activity. By this, there is illegal
recruitment is malum prohibitum where the recruitment when one gives the impression of
criminal intent of the accused is not having the ability to send a worker abroad.
necessary for conviction, while estafa is
malum in se where the criminal intent is In Darvin v. CA, the Court ruled that procuring
crucial for conviction. Conviction for offenses a passport, airline tickets and foreign visa for
under the Labor Code does not bar a another individual, without more, can hardly
conviction for offenses punishable by other qualify as recruitment activities.
laws. Conversely, conviction for estafa under
par. 2 (a) of Art. 315 of the Revised Penal Q: Is the number of persons dealt with an
Code does not bar a conviction for illegal essential ingredient of the act of
recruitment under the Labor Code. It follows recruitment?
that one's acquittal of the crime of estafa will A: No. Any of the acts mentioned in the basic
not necessarily result in his acquittal of the rule in Article 13 (b), done without license, will
crime of illegal recruitment in large scale, and constitute recruitment and placement even if
vice versa. only one prospective worker is involved. The
proviso merely lays down a rule of evidence
Q: What is simple illegal recruitment? that where a fee is collected in consideration
A: Where illegal recruitment is proved, but the of a promise or offer of employment to two or
elements of "large scale or "syndicate" are more prospective workers, the individual. or
absent, the accused can be convicted only of entity dealing with them shall be deemed to
"simple" illegal recruitment. be engaged in the act of recruitment and
placement. The words 'shall be deemed'
Q: What is the essential element of simple create that presumption.155
illegal recruitment?
A: Illegal recruitment as a criminal offense Q: Can the fact of lack of receipts absolve a
presupposes deceit or misrepresentation. It recruiter?
must be shown that the accused, without A: No, the absence of receipts cannot defeat a
being duly authorized by law, gave the criminal prosecution for illegal recruitment. As
complainants the distinct impression that long as the witnesses can positively show
s/he had the power or ability to send them through their testimonies that the accused is
abroad for work, such that the latter were the one involved in prohibited recruitment,
convinced to part with their money in order to s/he may be convicted of the offense, despite
be employed. It is important that there must the absence of receipts.
at least be a promise or offer of an
employment from the person posing as a As a rule, presentation of receipts
recruiter, whether locally or abroad. acknowledging payment is not necessary for
successful prosecutions of illegal recruitment
Illegal recruiters need not even expressly charge. Credible testimonial evidence may
represent themselves to the victims as suffice.
persons who have the ability to send workers
abroad. It is enough that these recruiters give Q: Does the receipt of payments, after the
the impression that they have the ability to expiration of the license, for services
enlist workers for job placement abroad in
154
See People v. Delos Reyes.
155
See People v. Panis.
/
rendered before the expiration date A person who has committed any act that
constitute illegal recruitment? constitutes illegal recruitment may be
A: No. While the payments for services arrested by virtue of a warrant issued by a
rendered are necessary consequences of the Judge of a Regional Trial Court where the
applications for overseas employment, it is criminal information was filed after
asking too much to expect a licensed agency preliminary investigation. Or the arrest may be
to absolutely at the stroke of midnight stop all done by virtue of a warrant issued by a
transactions on the day its license expires and municipal trial judge conducting the
refuse to accept carry-over payments after the preliminary investigation if the judge is
agency is closed. In any business, there has to satisfied, after an examination in writing and
be a winding-up after it ceases operations. under oath of the complainant and his
witnesses, that a probable cause exists and
The collection of unpaid accounts should not that there is need to place the respondent
be the basis of a criminal prosecution. It is under immediate custody in order to serve the
not the issuance or signing of receipts for the ends of justice.
placement fees that makes a case for illegal
recruitment, but rather the undertaking of Further, an illegal recruiter may be lawfully
recruitment activities without the necessary arrested without warrant under the provisions
license or authority. Recruitment refers to the of Section 5, Rule 113 of the Rules on Criminal
ordering of inducements to qualified Procedure as amended.
personnel to enter a particular job or
employment.156 Q: What are the penalties for illegal
recruitment?
Q: Who are persons liable for illegal A: The penalties provided under this Article 39
recruitment? originally apply to both local and overseas
A: The persons criminally liable for illegal employment But illegal recruitment for
recruitment and other offenses are the overseas employment is now penalized under
principals, accomplices and accessories. Section 7 of RA No. 8042; hence, Article 39
● In case of juridical persons, the now applies only to cases involving local
officers having control, management employment.
or direction of their business who are
PENALTIES FOR LOCAL EMPLOYMENT
responsible for the commission of the
(Art. 39, Labor Code)
offense and the responsible
employees/agents shall be liable. (a) The penalty of life imprisonment and a
fine of One Hundred Thousand Pesos
Q: May the POEA Administrator (or the (P100,000.00) shall be imposed if illegal
Secretary of Labor) validly issue warrants of recruitment constitutes economic sabotage
searches and seizure (or arrest) under Art. 38 as defined herein;
of the Labor Code?
A: No. Under the Constitution, only a judge (b) Any licensee or holder of authority found
may issue warrants of search and arrest. violating or causing another to violate any
Article 38, paragraph (c), of the Labor Code, provision of this Title or its implementing
as now written, was entered as an rules and regulations shall, upon conviction
amendment by P.O. Nos. 1920 and 2018 of thereof, suffer the penalty of imprisonment
the late President Marcos. The Secretary of of not less than two years nor more than five
Labor, not being a judge, may no longer issue years or a fine of not less than P10,000 nor
search or arrest warrants. Hence, the more than P50,000, or both such
authorities must go through the judicial imprisonment and fine, at the discretion of
process. To that extent, Article 38, paragraph the court;
(c); of the Labor Code, is unconstitutional and
of no force and effect.157 (c) Any person who is neither a licensee nor
a holder of authority under this Title found
violating any provision thereof or its
156
See Aquino v. CA; People v. Senoron; Rodolfo v.
People.
implementing rules and regulations shall,
157
See Salazar v. Achacoso.
/
upon conviction thereof, suffer the penalty of (c) Any person found guilty of any of the·
imprisonment of not less than four years nor prohibited acts shall suffer the penalty of
more than eight years or a fine of not less imprisonment of not less than six (6) years
than P20,000 nor more than P100,000 or and one (1) day but not more than twelve
both such imprisonment and fine, at the (12) years and a fine of not less than five
discretion of the court; hundred thousand pesos (P500,000) nor
more than one million pesos (Pl,000,000).
(d) If the offender is a corporation,
partnership, association or entity, the penalty If the offender is an alien, he or she shall, in
shall be imposed upon the officer or officers addition to the penalties herein prescribed,
of the corporation, partnership, association be deported without further proceedings.
or entity responsible for violation; and if
such officer is an alien, he shall, in addition In every case, conviction shall cause and
to the penalties herein prescribed, be carry the automatic revocation of the
deported without further proceedings; license or registration of the
(e) In every case, conviction shall cause and recruitment/manning agency, lending
carry the automatic revocation of the license institutions, training school or medical
or authority and all the permits and clinic.
privileges granted to such person or entity

under this Title, and the forfeiture of the
Q: When do actions for illegal recruitment
cash and surety bonds in favor of the
cases prescribe?
Overseas Employment Development Board
A: Illegal recruitment cases under this Act
or the National Seamen Board, as the case
shall prescribe in five years; Provided,
may be, both of which are authorized to use
however; That illegal recruitment ·cases
the same exclusively to promote their
involving economic sabotage as defined
objectives.
herein shall prescribe in 20 years.
PENALTIES FOR OVERSEAS EMPLOYMENT
(Sec. 7 of RA 8042)
REGULATION OF RECRUITMENT AND
It states: PLACEMENT ACTIVITIES

(a) Any person found guilty of illegal
recruitment shall suffer the penalty of Arts. 16, 18, 25-33, and 35-37, Labor Code
imprisonment of not less than twelve (12) ART. 16. Private Recruitment. — Except as
years and one (1) day but not more than provided in Chapter II of this Title, no person or
twenty (20) years and a fine of not less than entity other than the public employment offices,
one million pesos (Pl,000,000) not more shall engage in the recruitment and placement
than two million pesos (P2,000,000); of workers.

(b) The penalty of life imprisonment and a ART. 18. Ban on Direct-Hiring. — No employer
fine of not less than two million pesos may hire a Filipino worker for overseas
(P2,000,000) nor rriore than Five million employment except through the Boards and
pesos (P5,000,000) shall be imposed if entities authorized by the Secretary of Labor.
illegal recruitment constitutes economic Direct-hiring by members of the diplomatic
sabotage as defined therein. corps, international organizations and such
other employers as may be allowed by the
Provided, however, that the maximum Secretary of Labor is exempted from this
penalty shall be imposed if the person provision.
illegally recruited is less. than eighteen (18)
years of age or committed by·a
non-licensee or non-holder of authority.

/
ART. 25. Private Sector Participation in the ART. 31. Bonds. — All applicants for license or
Recruitment and Placement of Workers. — authority shall post such cash and surety bonds
Pursuant to national development objectives as determined by the Secretary of Labor to
and in order to harness and maximize the use guarantee compliance with prescribed
of private sector resources and initiative in the recruitment procedures, rules and regulations,
development and implementation of a and terms and conditions of employment as
comprehensive employment program, the may be appropriate.
private employment sector shall participate in

the recruitment and placement of workers,
locally and overseas, under such guidelines, ART. 32. Fees to be Paid by Workers. — Any
rules and regulations as may be issued by the person applying with a private fee-charging
Secretary of Labor. employment agency for employment
assistance shall not be charged any fee until he

has obtained employment through its efforts or
ART. 26. Travel Agencies Prohibited to Recruit. has actually commenced employment. Such fee
26 — Travel agencies and sales agencies of shall be always covered with the appropriate
airline companies are prohibited from engaging receipt clearly showing the amount paid. The
in the business of recruitment and placement of Secretary of Labor shall promulgate a schedule
workers for overseas employment whether for of allowable fees.
profit or not.

ART. 33. Reports on Employment Status. —
ART. 27. Citizenship Requirement. — Only Whenever the public interest requires, the
Filipino citizens or corporations, partnerships or Secretary of Labor may direct all persons or
entities at least seventy-five percent (75%) of entities within the coverage of this Title to
the authorized and voting capital stock of which submit a report on the status of employment,
is owned and controlled by Filipino citizens including job vacancies, details of job
shall be permitted to participate in the requisitions, separation from jobs, wages, other
recruitment and placement of workers, locally terms and conditions and other employment
or overseas. data.

ART. 28. Capitalization. — All applicants for Recall:
authority to hire or renewal of license to recruit ART. 35. Suspension and/or Cancellation of
are required to have such substantial License or Authority. — The Minister of Labor
capitalization as determined by the Secretary of shall have the power to suspend or cancel any
Labor. license or authority to recruit employees for
overseas employment for violation of rules and
regulations issued by the Ministry of Labor, the
ART. 29. Non-transferability of License or Overseas Employment Development Board, or
Authority. — No license or authority shall be for violation of the provisions of this and other
used directly or indirectly by any person other applicable laws, General Orders and Letters of
than the one in whose favor it was issued or at Instructions.
any place other than that stated in the license or
authority be transferred, conveyed or assigned
to any other person or entity. Any transfer of ART. 36. Regulatory Power. — The Secretary of
business address, appointment or designation Labor shall have the power to restrict and
of any agent or representative including the regulate the recruitment and placement
establishment of additional offices anywhere activities of all agencies within the coverage of
shall be subject to the prior approval of the this Title and is hereby authorized to issue
Department of Labor. orders and promulgate rules and regulations to
carry out the objectives and implement the
provisions of this Title.
ART. 30. Registration Fees. — The Secretary of
Labor shall promulgate a schedule of fees for
the registration of all applicants for license or
ART. 37. Visitorial Power. — The Secretary of
authority.
Labor or his duly authorized representatives
may, at any time, inspect the premises, books of
accounts and records of any person or entity
/
covered by this Title, require it to submit reports Q: Who are prohibited to recruit?
regularly on prescribed forms, and act on A: The following are not qualified to engage in
violation of any provisions of this Title. the business of recruitment and placement:
LOCAL EMPLOYMENT

RA 8042, Secs. 29-30 (1) Those who are convicted of illegal
recruitment, trafficking in persons, anti-child
SEC. 29. COMPREHENSIVE DEREGULATION labor violation, or crimes involving moral
PLAN ON RECRUITMENT ACTIVITIES. –
turpitude.
Pursuant to a progressive policy of deregulation

whereby the migration of workers becomes
strictly a matter between the worker and his (2) Those against whom probable cause or
foreign employer, the DOLE within one (1) year prima facie finding of guilt for illegal
from the effectivity of this Act, is hereby recruitment or other related cases exist
mandated to formulate a five-year particularly to owners or directors of
comprehensive deregulation plan on agencies who have committed illegal
recruitment activities taking into account labor recruitment or other related cases.
market trends, economic conditions of the
country and emergency circumstances which (3) Those agencies whose licenses have
may affect the welfare of migrant workers.
been previously revoked or cancelled by the
Department under Section 54 of these
SEC. 30. GRADUAL PHASE-OUT OF rules.
REGULATORY FUNCTIONS. – Within a period of
five (5) years from the effectivity of this Act, the (4) Cooperatives whether registered or not
DOLE shall phase out the regulatory functions under the Cooperative Act of the
of the POEA pursuant to the objectives of Philippines.
deregulation.
(5) Law enforcers and any official and
Q: Who are authorized to engage in employee of the Department of Labor and
recruitment and placement of workers? Employment (DOLE).
A: GENERAL RULE: Only public employment
offices shall engaged in recruitment and (6) Sole proprietors of duly licensed
placement of workers.158 agencies are prohibited from securing
EXCEPTION: The private employment sector another license to engage in recruitment
shall participate in the recruitment and and placement.
placement of workers, locally and overseas.159
(7) Sole proprietors, partnerships or
The following entities are authorized to recruit corporations licensed to engage in private
and place workers for local or overseas recruitment and placement for local
employment: employment are prohibited from engaging
(1) Public employment offices (PESO); in job contracting or subcontracting
(2) Private employment agencies; activities.
(3) Shipping or manning agents or
OVERSEAS EMPLOYMENT160
representatives;
(4) POEA; (1) Travel agencies and sales agencies of
(5) Construction contractors if authorized airline companies.
to operate by DOLE and the
Construction Industry Authority; (2) Officers or members of the Board of any
(6) Members of the diplomatic corps corporation or partners in a partnership
although hirings done by them have to engaged in the business of a travel agency;
be processed through the POEA; and
(7) Other persons or entities as may be (3) Corporation and partnerships, where any
authorized by the DOLE secretary. of its officers, members of the board or
158
159
See Art. 25, Labor Code. 160
See Republic v. Human Link Manpower.
/
A: It depends if it’s a private employment
partners i3 also an officer, member of the
agency for local or overseas employment.
board or partner of a corporation or
partnership engaged in the business of a LOCAL OVERSEAS
travel agency; EMPLOYMENT EMPLOYMENT

(4) Individuals, partners, officers or It should have a It should have a
directors of an insurance company who minimum net worth minimum
make, propose or provide an insurance of Pl,000,000 in the capitalization of
contract under the compulsory insurance case of single P5,000,000 for
coverage for agency-hired Overseas Filipino proprietorship and single proprietorship
Workers; partnership or a or partnership, and a
minimum paid-up minimum paid-up
(5) Sole proprietors, partners or officers and capital of Pl capital of
members of the board with derogatory ,000,000 in the case P5,000,000 for
records; such as, but not limited to the of a corporation. corporation.
following:
1. Those. convicted, or against whom Q: May fees be collected by recruitment
probable cause or prima facie agencies?
finding of guilt is determined by a A:
competent authority, for illegal As a rule, no fees whatsoever shall be
recruitment, or for other related collected neither deducted from the salaries
crimes or offenses committed in the or wages of the workers.
course of, related to, or resulting
from, illegal recruitment, or for In local employment, an agency may charge
crimes involving moral turpitude; the following:
2. Those agencies whose licenses (1) Service fee: An agency may charge the
have been revoked for violation employers a service fee as may be agreed
ofR.A. No. 8042 (Migrant Workers upon by the agency and the employer.
and Overseas Filipinos Act of 1995), (2) Transportation expenses: The
as amended, P .D. No. 442 (Labor transportation expenses for the transfer of the
Code of the Philippines), as worker from the place of residence to the
amended, and R.A. No. 9208 place of work shall be charged to the
(Trafficking in Persons Act of 2003), employer.
as amended, and their implementing
rules and regulations; and All payments or fees made to or collected by
3. Those agencies whose licenses an agency shall be evidenced by an official
have been cancelled, or those who, receipt indicating the amount paid and the
pursuant to the Order of the purpose of such payment.
Administrator, were included in the
list of persons with derogatory On the other hand, in overseas employment,
record for violation of recruitment unless otherwise provided, the principal shall
laws and regulations. be responsible for the payment of the
(6) Any official or employee of the DOLE, following:
POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, (1) visa, including the stamping fee;
TESDA, CFO, NBI, PNP, Civil Aviation (2) Work permit and residence permit;
Authority of the Philippines (CAAP), (3) round trip airfare;
international airport authorities, and other (4) POEA processing fee;
government agencies directly involved in (5) OWWA membership fee;
the implementation of RA. No. 8042, as (6) transportation from airport to jobsite;
amended, and/ or any of his/her relatives and
within the fourth civil degree of (7) additional trade test or assessment if
consanguinity or affinity. required by the principal/employer.

Q: What are the rules for capitalization?
/
POEA has the power to order refund of judgment creditor simply because it is not one
illegally collected fees. Implicit in its power to of those enumerated in Rule 39, sec. 12 of the
regulate the recruitment and placement Rules of Court. To accede to such an
activities of all agencies is the award of argument would be tantamount to turning a
appropriate relief to the victims of the blind eye to the clear intent of the law.
offenses committed by the respondent
agency or contractor. Such relief includes the In Capricorn Travel and Tours v. CA, the Court
refund or reimbursement of such fees as may ruled that while the liability may have been
have been fraudulently or otherwise legally incurred in connection with the business of
collected, or such money, goods or services recruiting or placing overseas workers, i.e., the
imposed and accepted in excess of what is purchase and sale of airline tickets, it is
licitly prescribed. It would be illogical and definitely not one arising from violations of
absurd to limit the sanction on an offending the conditions for the grant and use of the
recruitment agency or contractor to license or authority and contracts of
suspension or cancellation of its license, employment. Nor is it one arising from the
without the concomitant obligation to repair violation of labor laws. Thus, it cannot be said
the injury caused to its victims. that the Court of Appeals erred when it
annulled the assailed orders of respondent
Q: Is a cash bond exempt from execution by a judge, enjoined the agency from garnishing
judgement creditor? the cash bond, and ordered it to return the
A: No. The cash bond is a requisite for the amount of the bond to the POEA if it had not
issuance and renewal of a license or authority yet done.
to engage in the business of recruitment and
overseas placement. It is to answer for the In Stronghold Insurance v. CA, the Court ruled
liabilities of the agency arising from violations that the surety bond required of recruitment
of the conditions for the grant or use of the agencies is intended for the protection of our
license or authority or the contracts of citizens who are engaged for overseas
employment, the Labor Code, the POEA rules employment by foreign companies. The
and Labor Department issuances and all purpose is to insure that if the rights of these
liabilities that the POEA may impose. overseas workers are violated by their
employers, recourse would still be available to
It must also be added that the requirement for them against the local companies that
the posting of a cash bond is also an recruited them for the foreign principal. The
indispensable adjunct to the requirement that foreign principal is outside the jurisdiction of
the agency undertakes to assume joint and our courts and would probably have no
solidary liability with the employer for all properties in this country against which an
claims and liabilities which may arise in adverse judgment can be enforced. This
connection with the implementation of the difficulty is corrected by the bond, which can
contract of overseas employment and to be proceeded against to satisfy that
guarantee compliance with existing labor and judgment.
social legislation of the Philippines and the
country of employment.

CONTRACTS
On a broader scale, the undertaking to
assume joint and solidary liability and to
guarantee compliance with labor laws, and 1991 POEA Rules: Book V, Rule II
the consequent posting of cash and surety RULE II
bonds, may be traced all the way back to the FORMULATION OF EMPLOYMENT
constitutional mandate for the State to "afford STANDARDS
full protection to labor, local and overseas.”
Section 1. Employment Standards. - The
Considering the rationale for requiring the Administration shall determine, formulate
posting of a cash bond and its nature, it and review employment standards in
cannot therefore be argued that the cash accordance with the market development
bond is not exempt from execution by a
/
and welfare objectives of the overseas terms and conditions of employment over
employment program and the prevailing and above the minimum standards of the
market conditions. Administration.

Section 2. Minimum Provisions for
Contract. - The following shall be Arts. 34-35, Labor Code
considered the minimum requirements for Recall:
contracts of employment: ART. 34. Prohibited Practices — It shall be
a. Guaranteed wages, for regular working unlawful for any individual, entity, licensee, or
hours and overtime pay for services holder of authority:
rendered beyond regular work hours in (a) To charge or accept, directly or indirectly, any
amount greater than that specified in the
accordance with the standards established
schedule of allowable fees prescribed by the
by the Administration; Secretary of Labor, or to make a worker pay any
b. Free transportation from point of hire to amount greater than that actually received by
site of employment and return; him as a loan or advance;
c. Free emergency medical and dental (b) To furnish or publish any false notice or
treatment and facilities; information or document in relation to
d. Just causes for the termination of the recruitment or employment;
contract or of the services of the workers; (c) To give any false notice, testimony,
e. Workmen’s compensation benefits and information or document or commit any act of
war hazard protection; misrepresentation for the purpose of securing a
license or authority under this Code;
f. Repatriation of workers remains and
(d) To induce or attempt to induce a worker
properties in case of death to the point of already employed to quit his employment in
hire, or if this is not possible under the order to offer him to another unless the transfer
circumstances, the proper disposition is designed to liberate the worker from
thereof, upon prior arrangement with the oppressive terms and conditions of employment;
worker’s next-of-kin and the nearest (e) To influence or to attempt to influence any
Embassy or Consulate through the Office of person or entity not to employ any worker who
the Labor Attache; has not applied for employment through his
g. Assistance in the remittance of worker’s agency;
salaries, allowances or allotments to his (f) To engage in the recruitment or placement of
workers in jobs harmful to public health or
beneficiaries; and
morality or to the dignity of the Republic of the
h. Free and adequate lodging facilities or Philippines;
compensatory food allowance at prevailing (g) To obstruct or attempt to obstruct inspection
cost of living standards at the jobsite. by the Secretary of Labor or by his duly
authorized representatives;
Section 3. Standard Employment Contract. (h) To fail to file reports on the status of
- The Administration shall undertake employment, placement vacancies, remittance
development and/or periodic review of of foreign exchange earnings, separation from
region, country and skills specific jobs, departures and such other matters or
employment contracts for landbased information as may be required by the Secretary
of Labor;
workers and conduct regular review of
(i) To substitute or alter employment contracts
standard employment contracts (SEC) for approved and verified by the Department of
seafarers. These contracts shall provide Labor from the time of actual signing thereof by
for minimum employment standards herein the parties up to and including the periods of
enumerated under Section 2 of this Rule expiration of the same without the approval of
and shall recognize the prevailing labor and the Secretary of Labor;
social legislations at the site of (j) To become an officer or member of the Board
employment and international conventions. of any corporation engaged in travel agency or to
The SEC shall set the minimum terms and be engaged directly or indirectly in the
conditions of employment. All employers management of a travel agency; and
(k) To withhold or deny travel documents from
and principals shall adopt the SEC in
applicant workers before departure for monetary
connection with the hiring of workers or financial considerations other than those
without prejudice to their adoption of other
/
authorized under this Code and its implementing Q: Would seamen petitioning their employer
rules and regulations. for an increase in salaries violate their
contract of employment?
A: No. The form contracts approved by the
ART. 35. Suspension and/or Cancellation of National Seamen Board are designed to
License or Authority. — The Minister of Labor protect Filipino seamen, not foreign
shall have the power to suspend or cancel any shipowners, who can take care of themselves.
license or authority to recruit employees for The standard forms embody the basic
overseas employment for violation of rules and minimums which must be incorporated as
regulations issued by the Ministry of Labor, the parts of the employment contract. They are
Overseas Employment Development Board, or
NOT collective bargaining agreements or
for violation of the provisions of this and other
applicable laws, General Orders and Letters of
immutable contracts which the parties cannot
Instructions. improve upon or modify in the course of the
agreed period of time.162

Q: What laws apply to overseas employment? In Virjen Shipping v. NLRC, the Court ruled that
A: GENERAL RULE: Philippine laws apply even to state that the affected seamen cannot
to overseas employment contracts. petition their employer for higher salaries
● This rule is rooted in the constitutional during the 12 months duration of the contract
provision ofSection 3, Article XIII that runs counter to established principles of labor
the State shall afford full protection to legislation. In fact, in this case, the facts show
labor, whether local or overseas. that Vir-jen initiated the discussions which led
Hence, even if the OFW has his to the demand for increased wages. The
employment abroad, it does not strip seamen made a proposal and the petitioner
him of his rights to security of tenure, answered with a counter-proposal. There was
humane conditions of work and a absolutely no mention of any strike, much less
living wage under our Constitution. a threat to strike. The seamen had done no
EXCEPTION: The parties may agree that a act which under Philippine law or any other
foreign law shall govern the employment civilized law would be termed illegal,
contract.161 oppressive, or malicious. Whatever pressure
● A synthesis of the existing laws and existed, it was mild compared to accepted
jurisprudence reveals that this and valid modes of labor activity. They were
exception is subject to the following only acting in the exercise of their rights, and
requisites: to deprive them of their freedom of
○ It is expressly stipulated in the expression is contrary to law and public
overseas employment contract that policy.
a specific foreign law shall govern;
○ The foreign law invoked must be Q: Is a second contract of employment valid
proven before the courts pursuant sans any verification or approval by the
to the Philippine rules on evidence; National Seamen Board?
○ The foreign law stipulated in the A: No. The intention of the law when Art. 34 of
overseas employment contract the Labor Code was enacted is to provide for
must not be contrary to law, morals, the prohibited and unlawful practices relative
good customs, public order, or to recruitment and placement. The purpose of
public policy of the Philippines; and having overseas contracts of employment
○ The overseas employment contract approved by the NSB (POEA) is whether or not
must be processed through the such contracts conform to the minimum
POEA. terms and conditions prescribed by the NSB
(POEA). Under Section 2, Rule 1, Book V of the
Rules and Regulations of the POEA “(t)he
standard format of employment contracts
shall set the minimum standards of the terms
and conditions of employment. All employers
See Industrial Personnel & Management

161
Services, Inc. v. De Vera. 162

See Suzara v. Benipayo.
/
and principals shall adopt the model contract voluntary act on his part. In light of Pineda’s
in connection with the hiring of workers mental condition, Interorient "should have
without prejudice to their adopting other observed some precautionary measures and
terms and conditions of employment over and should not have allowed said seaman to travel
above the minimum standards of the home alone", and their failure to do so
Administration.” The law did not at all prohibit rendered them liable for the death of Pineda.
any alteration which provided for increases in
wages or other benefits voluntarily granted by Q: Is the act of the foreigner-principal in
the employer.163 renewing the contract of an employee
In Chavez v. Bonto-Perez, where a managerial attributable to the domestic corporation,
commission agreement was executed acting as an agent?
authorizing the employer to deduct from the A: No. As agent of its foreign principal, the
monthly salary, the Court held that the domestic corporation cannot profess
agreement is void because it is against our ignorance of such an extension as obviously,
existing laws, morals and public policy.164 It the act of its principal extending the
cannot supersede the standard employment employee’s employment contract necessarily
contract approved by the POEA with the bound it, it too is a misapplication, a
stipulation: “ Any alterations or changes made misapplication of the theory of imputed
in any part of this contract without prior knowledge. The theory of imputed knowledge
approval by the POEA shall be null and ascribes the knowledge of the agent to the
void.”165 principal, not the other way around. The
knowledge of the principal-foreign employer
Q: Can a company be held liable for the death cannot, therefore, be imputed to its agent. In
of an employee? this case, there being no substantial proof
A: YES. In Interorient Marine Enterprises v. that the agent knew of and consented to be
NLRC, while there is lack or absence of direct bound under the 2-year employment contract
evidence showing his mental state, the extension, it cannot be said to be privy
circumstances prior and surrounding his thereto. As such, it and its "owner" cannot be
death provide substantial evidence of the held solidarily liable for any of employee’s
existence of such mental defect and disorder: claims arising from the 2-year employment
● He failed to join his connecting flight extension. Contracts take effect only between
and wandered out of the Bangkok the parties, their assigns, and heirs, except in
airport's immigration area on his own, case where the rights and obligations arising
despite being presumably unfamiliar from the contract are not transmissible by
with its native tongue, and with their nature, or by stipulation or by provision
nothing to do and no source of of law.
income; and
● He wielded a knife, scared away Furthermore, there was an implied revocation
passersby, and even attempted to stab of its agency relationship with its foreign
an armed policeman. principal when, after the termination of the
original employment contract, the foreign
Since Pineda attacked the Thai policeman principal directly negotiated with employee
when he was no longer in complete control of and entered into a new and separate
his mental faculties, Par. 6, Section C, Part II employment contract. Article 1924 of the Civil
of the POEA’s Standard Format Contract of Code reading: The agency is revoked if the
Employment exempting the employer from principal directly manages the business
liability should not apply in the instant case. entrusted to the agent, dealing directly with
The fact that the deceased suffered from third persons.
mental disorder at the time of his repatriation
means is attack on the policeman cannot be Q: Can damages be awarded despite the lack
characterized as a deliberate, willful or of employer-employee relationship?
A: Yes. There has to be a distinction between
163
See Seagull Maritime v. Balatongan. the perfection of the employment contract
164
See Dagasdas v. Grand Placement and General and the commencement of the
Services Corporation. employer-employee relationship. Thus, even
165
See Placewell International Services v. Camote.
/
before the start of any employer-employee and such other employers as may be allowed by
relationship, contemporaneous with the the Secretary of Labor is exempted from this
perfection of the employment contract was provision.
the birth of certain rights and obligations, the

breach of which would constitute a cause of
X X X
action against the erring party.166

ARTICLE 20. National Seamen Board. — (a) A
National Seamen Board is hereby created which
GOVERNMENT MACHINERY shall develop and maintain a comprehensive
program for Filipino seamen employed
overseas. It shall have the power and duty:
Arts. 14-21, and 24, Labor Code
1. To provide free placement services for
(*Note: Arts. 15, 17, and 19 have been seamen;
repealed.) 2. To regulate and supervise the activities of
ARTICLE 14. Employment Promotion. — The agents or representatives of shipping
Secretary of Labor shall have the power and companies in the hiring
authority: of seamen for overseas employment and
(a) To organize and establish new employment secure the best possible terms of employment
offices in addition to the existing employment for contract
offices under the Department of Labor as the seamen workers and secure compliance
need arises; therewith; SDAaTC
(b) To organize and establish a nationwide job 3. To maintain a complete registry of all Filipino
clearance and information system to inform seamen.
applicants registering with a particular
employment office of job opportunities in other (b) The Board shall have original and exclusive
parts of the country as well as job opportunities jurisdiction over all matters or cases including
abroad; money claims, involving employer-employee
(c) To develop and organize a program that will relations, arising out of or by virtue of any law or
facilitate occupational, industrial and contracts involving Filipino seamen for
geographical mobility of labor and provide overseas employment. The decisions of the
assistance in the relocation of workers from Board shall be appealable to the National Labor
one area to another; and Relations Commission upon the same grounds
(d) To require any person, establishment, provided in Article 223 20 hereof. The decisions
organization or institution to submit such of the National Labor Relations Commission
employment information as may be prescribed shall be final and unappealable.
by the Secretary of Labor.
ARTICLE 21. Foreign Service Role and
X X X Participation. — To provide ample protection to
Filipino workers abroad, the labor attachés, the
Recall: labor reporting officers duly designated by the
ARTICLE 16. Private Recruitment. — Except as Secretary of Labor and the Philippine diplomatic
provided in Chapter II of this Title, no person or or consular officials concerned shall, even
entity other than the public employment offices, without prior instruction or advice from the
shall engage in the recruitment and placement home office, exercise the power and duty:
of workers. (a) To provide all Filipino workers within their
jurisdiction assistance on all matters arising out
of employment;
X X X (b) To insure that Filipino workers are not
exploited or discriminated against;
(c) To verify and certify as requisite to
ARTICLE 18. Ban on Direct-Hiring. — No
authentication that the terms and conditions of
employer may hire a Filipino worker for
employment in contracts involving Filipino
overseas employment except through the
workers are in accordance with the Labor Code
Boards and entities authorized by the Secretary
and rules and regulations of the Overseas
of Labor. Direct-hiring by members of the
Employment Development Board and National
diplomatic corps, international organizations
Seamen Board;
166
See Santiago v. CF Sharp.
/
(d) To make continuing studies or researches efficient manpower delivery system.
and recommendations on the various aspects
of the employment market within their NOW, THEREFORE, I, CORAZON C. AQUINO,
jurisdiction; President of the Philippines, by virtue of the
(e) To gather and analyze information on the powers vested in me by the sovereign will of the
employment situation and its probable trends, Filipino people and the Constitution, do hereby
and to make such information available; and order:
(f) To perform such other duties as may be
required of them from time to time. Section 1. Title. - This Executive Order shall
otherwise be known as the Reorganization Act
of the Philippines Overseas Employment
ARTICLE 24. Boards to Issue Rules and Collect Administration.
Fees. — The Boards shall issue appropriate
rules and regulations to carry out their Sec. 2. Reorganization. - The Philippine
functions. They shall have the power to impose Overseas Employment Administration
and collect fees from employers concerned, hereinafter referred to as the Administration is
which shall be deposited in the respective hereby reorganized, structurally and functionally
accounts of said Boards and be used by them in accordance with the provisions of the
exclusively to promote their objectives. Executive Order.

Sec. 3. Powers and Functions. - In the pursuit of
its mandate, the Administration shall have the
EO 247 (POEA Organization) following powers and functions:
REORGANIZING THE PHILIPPINE OVERSEAS (a) Regulate private sector participation in the
EMPLOYMENT ADMINISTRATION AND FOR recruitment and overseas placement of workers
OTHER PURPOSES by setting up a licensing and registration
system;
WHEREAS, Executive Order No. 5 (1986), (b) Formulate and implement, in coordination
provides that the necessary and proper changes with appropriate entities concerned, when
in the organizational and functional structures necessary, a system for promoting and
of the government, its agencies and monitoring the overseas employment of Filipino
instrumentalities need to be effected to promote workers taking into consideration their welfare
efficiency and effectiveness in the delivery of and the domestic manpower requirements;
public services; (c) Protect the rights of Filipino workers for
overseas employment to fair and equitable
WHEREAS, it has become necessary to institute recruitment and employment practices and
changes in the functional structure of the ensure their welfare;
Philippine Overseas Employment Administration (d) Exercise original and exclusive jurisdiction to
in order to enhance its effectiveness in hear and decide all claims arising out of an
responding to changing market and economic employer-employee relationship or by virtue of
conditions and to the call of the national any law or contract involving Filipino workers for
development plan for the strengthening of the overseas employment including the disciplinary
worker protection and regulation components of cases; and all preemployment cases which are
the overseas employment program; and, administrative in character involving or arising
out of violation or requirement laws, rules and
WHEREAS, the Philippine Overseas Employment regulations including money claims arising
Administration has to systematize its operations therefrom, or violation of the conditions for
by rationalizing its functions, structure and issuance of license or authority to recruit
organization to make it more efficient in workers. All prohibited recruitment activities and
undertaking its principal function of formulating practices which are penal in character as
and implementing a systematic program for enumerated and defined under and by virtue of
promoting and monitoring the overseas existing laws, shall be prosecuted in the regular
employment of Filipino workers and for courts in close coordination with the
protecting their rights to fair and equitable appropriate Departments and agencies
employment practices, and in order that it may concerned;
respond more effectively to the new demands (e) Maintain a registry of skills for overseas
for more meaningful welfare services to placement;
workers, better protection of their rights, more (f) Recruit and place workers to service the
efficient adjudication of cases and more requirements for trained and competent Filipino
workers by foreign governments and their
/
instrumentalities and such other employers as Each of the principal substantive subdivisions of
public interest may require; the Administration shall be headed by a Director
(g) Promote the development of skills and and shall have such departments and units as
careful selection of Filipino workers; may be necessary.
(h) Undertake overseas market development
activities for placement of Filipino workers; Sec. 5. Regional Extension Units. - The
(i) Secure the best terms and conditions of Administration is hereby authorized to set up
employment of Filipino contract workers and regional extension units in such regions as the
ensure compliance therewith; Governing Board may determine to be
(j) Promote and protect the well-being of Filipino necessary to promote efficient and economic
workers overseas; delivery of its services. The Regional extension
(k) Develop and implement programs for the units shall be under the Administrator’s
effective monitoring of returning contract supervision of the Labor Regional Director. It
workers, promoting their re-training and shall have, among others, the following
re-employment or their smooth re-integration functions:
into the mainstream of national economy in 1. Executes the policies, plans and programs of
coordination with other government agencies; the Administration in the regions outside of the
(l) Institute a system for ensuring fair and Metro Manila area;
speedy disposition of cases involving violation 2. Coordinates with local government officials
or recruitment rules and regulations as well as on the matter of implementation of the
violation of terms and conditions of overseas Administration’s program on overseas
employment; employment;
(m) Establish a system for speedy and efficient 3. Advises the central office on the needs of the
enforcement of decisions laid down through the region for particular welfare and regulatory
exercise of its adjudicatory function; programs;
(n) Establish and maintain close relationship 4. Establishes linkages with other allied
and enter into joint projects with the Department government agencies in the pursuance of the
of Foreign Affairs, Philippine Tourism Authority, objectives of the overseas employment
Manila International Airport Authority, programs;
Department of Justice, Department of Budget 5. Coordinates the anti-illegal recruitment
and Management and other relevant campaign in the regions;
government entities, in the pursuit of its 6. Performs other functions as the
objectives. The Administration shall also Administration may deem necessary.
establish and maintain joint projects with
private organizations, domestic or foreign, in the Sec. 6. New Structure and Pattern. - Upon
furtherance of its objectives. approval of this Executive Order, the officers and
employees of the Philippine Overseas
Sec. 4. Structural Organization. - The Employment Administration shall, in a holdover
Administration shall consist of the Governing capacity, continue to perform their respective
Board, the Office of the Administrator, the duties and responsibilities and receive the
Offices of such number of Deputy corresponding salaries and benefits unless in
Administrators as may be necessary, Office of the meantime they are separated from the
the Director for each of the principal service. The new structure and staffing pattern
subdivisions of its internal structure. for the Philippine Overseas Employment
(a) The Governing Board shall be composed of Administration shall be approved and prescribed
the Secretary of Labor and Employment as by the Secretary of the Department of Labor and
Chairman, the Administrator and a third Employment, within one hundred twenty (120)
member, considered well-versed in the field of days from the approval of this Executive Order
overseas employment who shall be appointed and the authorized position created thereunder
by the President to serve for a term of two (2) shall be filled with regular appointments by the
years; Secretary of the Department of Labor and
(b) The Administrator and such Deputy Employment of the President as the case may
Administrator and Directors as may be be. Those incumbents whose positions are not
necessary shall be appointed by the President included therein or who are not reappointed
upon recommendation of the Secretary; shall be deemed separated from the service.
(c) The functional structure of the Those separated from the service shall receive
Administration shall be established along the the retirement benefits to which they may be
areas of: market development, employment, entitled under existing laws, rules and
welfare, licensing, regulation and adjudication. regulations. Otherwise, they shall be paid the
equivalent of one-month salary for every year of
/
service, or fraction thereof, computed on the be published in a newspaper of general
basis of the highest salary received, but in no circulation at least three (3) times in every
case shall such payment exceed the equivalent quarter.
of twelve (12) months salary.

Sec. 7. Prohibition Against the Organizational SECTION 15. Repatriation of Workers;
Changes. - No change in the reorganization Emergency Repatriation Fund. — The
herein prescribed shall be valid except upon repatriation of the worker and the transport of
approval of the President for the purpose of his personal belongings shall be the primary
promoting efficiency and effectiveness in the responsibility of the agency which recruited or
delivery of public service. deployed the worker overseas. All costs
attendant to repatriation shall be borne by or
Sec. 8. Funding. - Funds needed to carry out the charged to the agency concerned and/or its
provisions of this Executive Order shall be taken principal. Likewise, the repatriation of remains
from funds available in the Administration. and transport of the personal belongings of a
deceased worker and all costs attendant thereto
Sec. 9. Implementing Authority of Secretary. - shall be borne by the principal and/or the local
The Secretary shall issue such rules, regulations agency. However, in cases where the
and other issuances as may be necessary to termination of employment is due solely to the
ensure the effective implementation of the fault of the worker, the principal/employer or
provisions of this Executive Order agency shall not in any manner be responsible
for the repatriation of the former and/or his
belongings.

RA 8042, Sections 13-30, and 32-34 The Overseas Workers Welfare Administration
SECTION 13. Free Legal Assistance; (OWWA), in coordination with appropriate
Preferential Entitlement Under the Witness international agencies, shall undertake the
Protection Program. — A mechanism for free repatriation of workers in cases of war,
legal assistance for victims of illegal epidemic, disaster or calamities, natural or
recruitment shall be established within the man-made, and other similar events without
Department of Labor and Employment including prejudice to reimbursement by the responsible
its regional offices. Such mechanism must principal or agency. However, in cases where the
include coordination and cooperation with the principal or recruitment agency cannot be
Department of Justice, the Integrated Bar of the identified, all costs attendant to repatriation
Philippines, and other non-governmental shall be borne by the OWWA.
organizations and volunteer groups. The
provisions of Republic Act No. 6981 to the For this purpose, there is hereby created and
contrary notwithstanding, any person who is a established an emergency repatriation fund
victim of illegal recruitment shall be entitled to under the administration, control and
the Witness Protection Program provided supervision of the OWWA, initially to consist of
thereunder. One hundred million pesos (P100,000,000.00),
which shall be taken from the existing fund
controlled and administered by the OWWA.
SECTION 14. Travel Advisory/Information Thereafter, such fund shall be provided for in the
Dissemination. — To give utmost priority to the General Appropriations Act from year to year:
establishment of programs and services to Provided, That the amount appropriated shall in
prevent illegal recruitment, fraud and no case be less than One hundred million pesos
exploitation or abuse of Filipino migrant (P100,000,000.00), inclusive of outstanding
workers, all embassies and consular offices, balances.
through the Philippine Overseas Employment
Administration (POEA), shall issue travel
advisories or disseminate information on labor SECTION 16. Mandatory Repatriation of
and employment conditions, migration realities Underage Migrant Workers. — Upon discovery or
and other facts; and adherence of particular being informed of the presence of migrant
countries to international standards on human workers whose actual ages fall below the
and workers’ rights which will adequately minimum age requirement for overseas
prepare individuals into making informed and deployment, the responsible officers in the
intelligent decisions about overseas foreign service shall without delay repatriate
employment. Such advisory or information shall said workers and advise the Department of
Foreign Affairs through the fastest means of
/
communication available of such discovery and Filipino migrant workers.
other relevant information.

SECTION 19. Establishment of a Migrant
SECTION 17. Establishment of Re-placement Workers and other Overseas Filipinos Resource
and Monitoring Center. — A re-placement and Center. — Within the premises and under the
monitoring center is hereby created in the administrative jurisdiction of the Philippine
Department of Labor and Employment for Embassy in countries where there are large
returning Filipino migrant workers which shall concentrations of Filipino migrant workers, there
provide a mechanism for their reintegration into shall be established a Migrant Workers and
the Philippine society, serve as a promotion Other Overseas Filipinos Resource Center with
house for their local employment, and tap their the following services:
skills and potentials for national development. (a) Counselling and legal services;
(b) Welfare assistance including the procurement
The Department of Labor and Employment, the of medical and hospitalization services;
Overseas Workers Welfare Administration, and (c) Information, advisory and programs to
the Philippine Overseas Employment promote social integration such as post-arrival
Administration shall, within ninety (90) days orientation, settlement and community
from the effectivity of this Act, formulate a networking services and activities for social
program that would motivate migrant workers to interaction;
plan for productive options such as entry into (d) Institute a scheme of registration of
highly technical jobs or undertakings, livelihood undocumented workers to bring them within the
and entrepreneurial development, better wage purview of this Act. For this purpose, the Center
employment, and investment of savings. is enjoined to compel existing undocumented
workers to register with it within six (6) months
For this purpose, the Technical Education and from the effectivity of this Act, under pain of
Skills Development Authority (TESDA), the having his/her passport cancelled;
Technology Livelihood Resource Center (TLRC), (e) Human resource development, such as
and other government agencies involved in training and skills upgrading;
training and livelihood development shall give (f) Gender sensitive program and activities to
priority to returnees who had been employed as assist particular needs of women migrant
domestic helpers and entertainers. workers;
(g) Orientation program for returning worker and

other migrants; and
SECTION 18. Functions of the Re-placement (h) Monitoring of daily situations, circumstances
and Monitoring Center. — The Center shall and activities affecting migrant workers and
provide the following services: other overseas Filipinos.

(a) Develop livelihood programs and projects for The establishment and operations of the Center
returning Filipino migrant workers in shall be a joint undertaking of the various
coordination with the private sector; government agencies. The Center shall be open
for twenty-four (24) hours daily including
(b) Coordinate with appropriate private and Saturdays, Sundays and holidays, and shall be
government agencies in the promotion, staffed by Foreign Service personnel, service
development, re-placement and the full attaches or officers who represent other
utilization of their potentials; Philippine government agencies abroad and, if
available, individual volunteers and bona fide
(c) Institute, in cooperation with other non-government organizations from the host
government agencies concerned, a countries. In countries categorized as highly
computer-based information system on skilled problematic by the Department of Foreign
Filipino migrant workers which shall be Affairs and the Department of Labor and
accessible to all local recruitment agencies and Employment and where there is a concentration
employers, both public and private; of Filipino migrant workers, the government
must provide a lawyer and a social worker for
(d) Provide a periodic study and assessment of the Center. The Labor Attaché shall coordinate
job opportunities for returning Filipino migrant the operation of the Center and shall keep the
workers; and Chief of Mission informed and updated on all
matters affecting it.
(e) Develop and implement other appropriate
programs to promote the welfare of returning The Center shall have a counterpart 24-hour
/
information and assistance center at the SECTION 21. Migrant Workers Loan Guarantee
Department of Foreign Affairs to ensure a Fund. — In order to further prevent unscrupulous
continuous network and coordinative illegal recruiters from taking advantage of
mechanism at the home office. workers seeking employment abroad, the
OWWA, in coordination with government

financial institutions, shall institute financing
SECTION 20. Establishment of a Shared schemes that will expand the grant of
Government Information System for Migration. pre-departure loan and family assistance loan.
— An inter-agency committee composed of the For this purpose, a Migrant Workers Loan
Department of Foreign Affairs and its attached Guarantee Fund is hereby created and the
agency, the Commission on Filipinos Overseas, revolving amount of One hundred million pesos
the Department of Labor and Employment, the (P100,000,000.00) from the OWWA is set aside
Philippine Overseas Employment as a guarantee fund in favor of participating
Administration, the Overseas Workers Welfare government financial institutions.
Administration, the Department of Tourism, the

Department of Justice, the Bureau of
Immigration, the National Bureau of SECTION 22. Rights and Enforcement
Investigation, and the National Statistics Office Mechanism Under International and Regional
shall be established to implement a shared Human Rights Systems. — The Department of
government information system for migration. Foreign Affairs is mandated to undertake the
The inter-agency committee shall initially make necessary initiative such as promotions,
available to itself the information contained in acceptance or adherence of countries receiving
existing data bases/files. The second phase Filipino workers to multilateral convention,
shall involve linking of computer facilities in declaration or resolutions pertaining to the
order to allow free flow data exchanges and protection of migrant workers’ rights. The
sharing among concerned agencies. Department of Foreign Affairs is also mandated
to make an assessment of rights and avenues
The inter-agency committee shall convene to of redress under international and regional
identify existing data bases which shall be human rights systems that are available to
declassified and shared among member Filipino migrant workers who are victims of
agencies. These shared data bases shall initially abuse and violation and, as far as practicable
include, but not be limited to, the following and through the Legal Assistant for Migrant
information: Workers Affairs created under this Act, pursue
(a) Masterlists of Filipino migrant the same on behalf of the victim if it is legally
workers/overseas Filipinos classified according impossible to file individual complaints. If a
to occupation/job category, civil status, by complaints machinery is available under
country/state of destination including visa international or regional systems, the
classification; ( Department of Foreign Affairs shall fully apprise
b) Inventory of pending legal cases involving the Filipino migrant workers of the existence
Filipino migrant workers and other Filipino and effectiveness of such legal options.
nationals, including those serving prison terms;

(c) Masterlist of departing/arriving Filipinos;
(d) Statistical profile on Filipino migrant SECTION 23. Role of Government Agencies. —
workers/overseas Filipinos/tourists; The following government agencies shall
(e) Blacklisted foreigners/undesirable aliens; perform the following to promote the welfare
(f) Basic data on legal systems, immigration and protect the rights of migrant workers and,
policies, marriage laws and civil and criminal as far as applicable, all overseas Filipinos:
codes in receiving countries particularly those
with large numbers of Filipinos; (a) Department of Foreign Affairs — The
(g) List of labor and other human rights Department, through its home office or foreign
instruments where receiving countries are posts, shall take priority action or make
signatories; representation with the foreign authority
(h) A tracking system of past and present gender concerned to protect the rights of migrant
disaggregated cases involving male and female workers and other overseas Filipinos and extend
migrant workers; and immediate assistance including the repatriation
(i) Listing of overseas posts which may render of distressed or beleaguered migrant workers
assistance to overseas Filipinos, in general, and and other overseas Filipinos;
migrant workers, in particular.
(b) Department of Labor and Employment — The

Department of Labor and Employment shall see
/
to it that labor and social welfare laws in the POEA, the OWWA and other government
foreign countries are fairly applied to migrant agencies concerned, as well as with
workers and whenever applicable, to other non-governmental organizations assisting
overseas Filipinos including the grant of legal migrant workers, to ensure effective
assistance and the referral to proper medical coordination and cooperation in the provision of
centers or hospitals: legal assistance to migrant workers;
(b.1) Philippine Overseas Employment (c) To tap the assistance of reputable law firms
Administration — Subject to deregulation and and the Integrated Bar of the Philippines and
phase-out as provided under Sections 29 and 30 other bar associations to complement the
herein, the Administration shall regulate private government’s efforts to provide legal assistance
sector participation in the recruitment and to our migrant workers;
overseas placement of workers by setting up a (d) To administer the legal assistance fund for
licensing and registration system. It shall also migrant workers established under Section 25
formulate and implement, in coordination with thereof and to authorize disbursements
appropriate entities concerned, when necessary, therefrom in accordance with the purposes for
a system for promoting and monitoring the which the fund was set up; and
overseas employment of Filipino workers taking (e) To keep and maintain the information
into consideration their welfare and the system as provided in Section 20.
domestic manpower requirements.
(b.2) Overseas Workers Welfare Administration The Legal Assistant for Migrant Workers Affairs
— The Welfare officer or in his absence, the shall have authority to hire private lawyers,
coordinating officer shall provide the Filipino domestic or foreign, in order to assist him in the
migrant worker and his family all the assistance effective discharge of the above functions.
they may need in the enforcement of

contractual obligations by agencies or entities
and/or by their principals. In the performance of SECTION 25. Legal Assistance Fund. — There is
this function, he shall make representation and hereby established a legal assistance fund for
may call on the agencies or entities concerned migrant workers, hereinafter referred to as the
to conferences or conciliation meetings for the Legal Assistance Fund, in the amount of One
purpose of settling the complaints or problems hundred million pesos (P100,000,000.00) to be
brought to his attention. constituted from the following sources:

Fifty million pesos (P50,000,000.00) from the
SECTION 24. Legal Assistant for Migrant Contingency Fund of the President;
Workers Affairs. — There is hereby created the
position of Legal Assistant for Migrant Workers Thirty million pesos (P30,000,000.00) from the
Affairs under the Department of Foreign Affairs Presidential Social Fund; and .
who shall be primarily responsible for the
provision and overall coordination of all legal Twenty million pesos (P20,000,000.00) from the
assistance services to be provided to Filipino Welfare Fund for Overseas Workers established
migrant workers as well as overseas Filipinos in under Letter of Instruction No. 537, as amended
distress. He shall have the rank, salary and by Presidential Decree Nos. 1694 and 1809.
privileges equal to that of an undersecretary of
said Department. Any balances of existing funds which have been
set aside by the government specifically as legal
The said Legal Assistant for Migrant Workers assistance or defense fund to help migrant
Affairs, shall be appointed by the President and workers shall, upon effectivity of this Act, be
must be of proven competence in the field of turned over to, and form part of, the Fund
law with at least ten (10) years of experience as created under this Act.
a legal practitioner and must not have been a

candidate to an elective office in the last local or
national elections. SECTION 26. Uses of the Legal Assistance
Fund. — The Legal Assistance Fund created
Among the functions and responsibilities of the under the preceding section shall be used
aforesaid Legal Assistant are: exclusively to provide legal services to migrant
(a) To issue the guidelines, procedures and workers and overseas Filipinos in distress in
criteria for the provision of legal assistance accordance with the guidelines, criteria and
services to Filipino migrant workers; procedures promulgated in accordance with
(b) To establish close linkages with the Section 24(a) hereof. The expenditures to be
Department of Labor and Employment, the charged against the Fund shall include the fees
/

for the foreign lawyers to be hired by the Legal
Assistant for Migrant Workers Affairs to SECTION 29. Comprehensive Deregulation Plan
represent migrant workers facing charges on Recruitment Activities. — Pursuant to a
abroad, bail bonds to secure the temporary progressive policy of deregulation whereby the
release of workers under detention, court fees migration of workers becomes strictly a matter
and charges and other litigation expenses. between the worker and his foreign employer,
the DOLE, within one (1) year from the effectivity

of this Act, is hereby mandated to formulate a
SECTION 27. Priority Concerns of Philippine five-year comprehensive deregulation plan on
Foreign Service Posts. — The country-team recruitment activities taking into account labor
approach, as enunciated under Executive Order market trends, economic conditions of the
No. 74, series of 1993, shall be the mode under country and emerging circumstances which
which Philippine embassies or their personnel may affect the welfare of migrant workers.
will operate in the protection of the Filipino

migrant workers as well as in the promotion of
their welfare. The protection of the Filipino SECTION 30. Gradual Phase-out of Regulatory
migrant workers and the promotion of their Functions. — Within a period of five (5) years
welfare, in particular, and the protection of the from the effectivity of this Act, the DOLE shall
dignity and fundamental rights and freedoms of phase-out the regulatory functions of the POEA
the Filipino citizen abroad, in general, shall be pursuant to the objectives of deregulation. .
the highest priority concerns of the Secretary of

Foreign Affairs and the Philippine Foreign
Service Posts. SECTION 32. POEA and OWWA Board;
Additional Memberships. — Notwithstanding

any provision of law to the contrary, the
SECTION 28. Country -Team Approach. — Under respective Boards of the POEA and the OWWA
the countryteam approach, all officers, shall, in addition to their present composition,
representatives and personnel of the Philippine have three (3) members each who shall come
government posted abroad regardless of their from the women, sea-based and land-based
mother agencies shall, on a per country basis, sectors respectively, to be appointed by the
act as one country-team with a mission under President in the same manner as the other
the leadership of the ambassador. In this regard members.
the ambassador may recommend to the

Secretary of the Department of Foreign Affairs
the recall of officers, representatives and SECTION 33. Report to Congress. — In order to
personnel of the Philippine government posted inform the Philippine Congress on the
abroad for acts inimical to the national interest implementation of the policy enunciated in
such as, but not limited to, failure to provide the Section 4 hereof, the Department of Foreign
necessary services to protect the rights of Affairs and the Department of Labor and
overseas Filipinos. Employment shall submit to the said body a
semi-annual report of Philippine foreign posts
Upon receipt of the recommendation of the located in countries hosting Filipino migrant
ambassador, the Secretary of the Department of workers. The report shall include, but shall not
Foreign Affairs shall, in the case of officers, be limited to, the following information:
representatives and personnel of other
departments, endorse such recommendation to (a) Masterlist of Filipino migrant workers, and
the department secretary concerned for inventory of pending legal cases involving them
appropriate action. Pending investigation by an and other Filipino nationals including those
appropriate body in the Philippines, the person serving prison terms;
recommended for recall may be placed under
preventive suspension by the ambassador. (b) Working conditions of Filipino migrant
workers;
In host countries where there are Philippine
consulates, such consulates shall also (c) Problems encountered by the migrant
constitute part of the country-team under the workers, specifically violations of their rights;
leadership of the ambassador.
d) Initiatives/actions taken by the Philippine
In the implementation of the country-team foreign posts to address the problems of
approach, visiting Philippine delegations shall Filipino migrant workers;
be provided full support and information.
/
(e) Changes in the laws and policies of host WHEREAS, it is deemed that the objectives and
countries; and purposes of the Fund as set forth in LOI No. 537
can best be served by now formalizing
(f) Status of negotiations on bilateral labor operations into a comprehensive Welfare Fund.
agreements between the Philippines and the
host country. Any officer of the government who NOW, THEREFORE, I, FERDINAND E. MARCOS,
fails to report as stated in the preceding section President of the Philippines, by virtue of the
shall be subject to administrative penalty. powers vested in me by the Constitution, do
hereby Order and Decree:

Section 1. Welfare Fund for Overseas Workers.
SECTION 34. Representation in Congress. — There is hereby created a "Welfare Fund for
Pursuant to Section 5(2), Article VI of the Overseas Workers," hereinafter referred to as
Constitution and in line with the objective of The Welfund which shall be used for the
empowering overseas Filipinos to participate in purpose of providing social and welfare services
the policy making process to address Filipino to Filipino overseas workers, including insurance
migrant concerns, two (2) sectoral coverage, legal assistance, placement
representatives for migrant workers in the assistance, and remittance services.
House of Representatives shall be appointed by
the President from the ranks of migrant Section 2. Fund Source. All contributions to the
workers: Provided, That at least one (1) of the Welfare and Training Fund collected pursuant to
two (2) sectoral representatives shall come Letter of Instructions No. 537 issued on May 1,
from the women migrant workers sector: 1977 shall be transferred to the Welfund. Fees
Provided, further, That all nominees must have and other charges may be imposed by the
at least two (2) years experience as a migrant Overseas Employment Development Board, the
worker. Bureau of Employment Services, and the
National Seamen Board, subject to the approval
of the Minister of Finance. Such fees, charges
and other collections shall accrue to the Welfare
PD 1694 (OWWA) and Training Fund.
ORGANIZATION AND ADMINISTRATION OF
THE WELFARE FUND FOR OVERSEAS Section 3. Administration. The Welfund shall be
WORKERS administered by a Board of Trustees consisting
of the Minister of Labor as Chairman, the
WHEREAS, the overseas employment Deputy Minister of Labor as Vice-Chairman, and
development of the Government undertaken the Executive Director of the Overseas
through the Ministry of Labor has generated an Employment Development Board, the Executive
explosion of the presence abroad of Filipino Director of the National Seamen Board, the
workers, now estimated to be around 1.7 million Director of the Bureau of Employment Services,
in 107 centries of the world; the Administrator of the Welfund, and one
representative each from the management and
WHEREAS, there is every indication that the labor sectors who shall be appointed by the
overseas demand for Filipino workers would President, as members.
continue to increase in the coming years;
An Administrator shall be appointed by the
WHEREAS, because of the volatile situation in President upon recommendation of the Minister
many countries hosting this labor force, the of Labor, who shall have the qualifications, rank
Government is continually under stress in and compensation of a Bureau Director.
efforts to provide overseas Filipino workers
adequate protection; Section 4. Responsibility and Powers. The
Board of Trustees of the Welfund shall have the
WHEREAS, in response to the distressed following responsibilities and powers:
conditions of many of these workers, the 1. To formulate and implement measures
Government, under Letter of Instructions No. and programs to attain the fund's
537 issued on May 1, 1977, authorized the objectives and purposes;
creation in the Ministry of Labor of a Welfare 2. To enter into agreements and contracts
and Training fund for Overseas Workers to be in connection with its operations and
funded with the contributions from overseas objectives;
employers of Filipino workers; 3. To manage Fund resources subject to
the provisions of Sec. 5 hereof; and
/
4. To issue rules and regulations to carry awaiting naturalization, recognition, or
out the objectives and purposes of the admission, and their descendants.
Welfund and the provisions of this
Decree Sec. 3. Powers and Functions. — The
Commission shall have the following powers
Section 5. Fund Management. The Welfund shall and functions:
be recorded as Special Account in the General a. Provide advice and assistance to the
Fund and transactions in it shall be subject to President (Prime Minister) of the Philippines
such rules and regulations as may be and the Batasang Pambansa in the formulation
formulated by the Minister of Finance, who shall of policies and measures affecting Filipinos
act in consultation with the Minister of Labor overseas;
and the Minister of the Budget. A maximum of b. Formulate, in coordination with agencies
five per cent (5%) of any investment income concerned, an integrated program for the
earned by the Fund may be utilized for promotion of the welfare of Filipinos overseas
operational expenses, except as may be for implementation by suitable existing
approved by the President. Such operational agencies;
expenses shall be subject to the usual c. Coordinate and monitor the implementation
budgetary process established by Sec. 40 of P.D. of such an integrated program;
No. 1177 and to the rules on organization, d. Initiate and directly undertake the
compensation and honoraria determined for implementation of special projects and
agencies of the government under P.D. No. 985. programs, whenever necessary, to promote the
welfare of Filipinos overseas with respect to
A fund staff shall be formed within the Office of their interests and activities in the Philippines;
the Minister of Labor, whose compensation and e. Serve as a forum for preserving and
operating expenses shall be charged to fund enhancing the social, economic and cultural ties
income, subject to the limits provided under this of Filipinos overseas with their motherland;
Section. f. Provide liaison services to Filipinos overseas
with appropriate government and private

agencies in the transaction of business and
similar ventures in the Philippines;
BP 79 (Commission on Filipinos Overseas) g. Promulgate rules and regulations to carry out
AN ACT CREATING THE COMMISSION ON the objectives of this Act;
FILIPINOS OVERSEAS AND FOR OTHER h. Call upon any agency of the Government,
PURPOSES. including government-owned or controlled
corporations, to render whatever assistance is
Section 1. Creation and Composition. — There is needed in the pursuance of the objectives of
hereby created a Commission on Filipinos this Act; and
Overseas, hereinafter referred to as the i. Perform such other related functions as may
Commission, under the Office of the President. be directed by the President (Prime Minister) or
assigned by law.
The Commission shall be composed of five (5)
members to be appointed by the President Sec. 4. Organization. — The Commission shall
(Prime Minister) of the Philippines, one of whom be assisted by a Secretariat which shall be
shall be the Minister of Foreign Affairs, as organized and staffed in accordance with the
ex-officio member: Provided, That the President provisions of Presidential Decree Numbered
(Prime Minister) may appoint other ministries as Eleven hundred and seventy-seven. The
ex-officio members: Provided, further, That in Commission is authorized, whenever necessary
the absence of any ex-officio member, said and subject to the approval of the President
member may designate his deputy to act in his (Prime Minister), to establish offices in suitable
stead. The President (PrimeMinister) shall places abroad, or to appoint service attaches in
designate the chairman and the vice-chairman the Philippines Embassy or consulate located
of the Commission from among its members. thereat, or to designate representatives from
among resident Filipinos staying in these
Sec. 2. Definition of "Filipinos Overseas". — For places.
purposes of this Act, the term "Filipinos
Overseas" shall mean Filipinos who are Sec. 5. Compensation. — The ex-officio
permanent residents abroad, including Filipino members if the Commission shall be entitled to
emigrants who are either already citizens of per diems for meetings attended, not exceeding
foreign countries or are still Filipino citizens two hundred fifty pesos per meeting and not
exceeding on thousand pesos a month. The
/
other members of the Commission and the ● [T]he first law passed by the Philippine
officials and employees of the Commission Legislature in 1915 related to overseas
shall be compensated pursuant to the employment.
provisions of Presidential Decree Numbered ● This law provided for license issuance
Nine hundred eighty-five and Presidential Decree and license fee and welfare
Numbered Twelve hundred and eighty-five, as regulations, such as prohibiting minors
the case may be. (under 15 years) to work abroad
without the parent's written consent,
Sec. 6. Abolition of Office of Emigrant Affairs. — prohibiting recruitment of
The Office of Emigrants Affairs in the Ministry of
non-Chri~tians for exhibition or display
Labor and Employment is abolished and its
pertinent functions are transferred to the and provision of transportation for
Commission, including applicable funds, returning workers who are physically
records, property and equipment and the unfit or have finished serving the
necessary personnel that have been allotted and contract.
assigned to the Office of Emigrant Affairs from (2) PD No. 442 (Labor Code)
the Ministry of Labor and Employment and/or ● [T]his paved the way for a stricter
other entities. government regulation of the overSeas
employment industry.
Sec. 7. Appropriations. — The appropriations ● The Overseas Employment
authorized under Batas Pambansa Blg. 40 for
Development Board (OEDB) and the
the Office of Emigrant Affairs shall be used for
the operational expenses of the Commission for National Seamen Board (NSB) were
the current year, to be augmented as may be created to implement a more
necessary from the fund for organizational systematic deployment of land-based
changes provided in Batas Pambansa Blg. 40. and sea-based workers to other
Subsequently, its appropriation shall be included countries.
in the annual General Appropriations Act. (3) PD No. 1412
● [T]o cope with the great demand for
DOLE workers in the Middle East, the
● The Department of Labor and government had to revive private
Employment is "the primary sector participation in the recruitment
policy-making, programming, arid placement of Filipino workers.
coordinating, and administrative entity ● The government's recruitment role
of the Executive Branch of the was thus limited to
government in the field of labor and government-to-government
employment.” The DOLE has the arrangements.
primary responsibility for: (4) EO No. 797
○ The promotion of gainful ● This aimed at streamlining operations
employment opportunities and the in the overseas employment program.
optimization of the development ● The OEDB, NSB, and the overseas
and utilization of the country’s employment program of the Bureau of
manpower resources; Employment Services were united in a
○ The advancement of worker's single structure. - the Philippine
welfare by providing for just and Overseas Employment Administration
humane working conditions and (POEA)
terms of employment; and (5) EO No. 247 (Reorganization Act of POEA)
○ The maintenance of industrial ● One of the more important provisions
peace by promoting harmonious, of this Order is the strengthening of
equitable and stable employment the worker's protection and welfare
relations that assure protection for and a tighter regulation of the private
the rights of all concerned parties. sector's recruitment activities.
(6) RA No. 8042 (Migrant Workers and
LEGISLATIVE BACKGROUND OF OVERSEAS Overseas Filipinos Act)
EMPLOYMENT ● This law institutes the policies on
(1) Act No. 2486 overseas employment and establishes
a higher standard of protection and
/
promotion of the welfare of migrant issued by the Philippine Overseas
workers, their families, and of Employment Administration (POEA).
overseas Filipinos in distress.
(7) RA No. 10022 Q: What is POEA?
● This improves the standard of A: POEA took over the functions of OCDB and
protection and promotion of welfare. the NSB. POEA is the protector of overseas
workers' rights to fair and equitable
OFWS. - OFWs are classified by DOLE as employment practices. The principal
either land-based or sea-based. functions of the POEA. include the
formulation, implementation, and monitoring
LAND-BASED SEA-BASED
of policies and programs on overseas
Contract workers [T]hose employed rn employment of Filipino workers. An additional
other than a seaman a vessel engaged in function of POEA is the deployment of Filipino
including workers maritime navigation. workers through government-to-government
engaged in offshore hiring. POEA has extended its services
activities whose Pertains to ship nationally through its regional extension units
occupation requires operations like to process vacationing workers, register
that majority of his navigation, sea-based workers, and participate in
working/gainful engineering, government hiring through manpower pooling.
hours are spent on maintenance, POEA performs administrative, regulatory and
land. including a variety of enforcement, as well as limited adjudicatory
occupations from functions.
kitchen staff to
on-board Q: Who has jurisdiction over
entertainment in employer-employee relations cases?
large vessel ships. A: POEA. The POEA retains original and
exclusive jurisdiction to hear and decide:
(1) all cases which are administrative in
The dictatorial Marcos government did not character, involving or arising out of
bother to say what places the OFWs could violations of rules and regulations
safely go to. R.A. No. 8042, in stark contrast, relating to licensing and registration of
requires certain guarantee of protection in recruitment and employment agencies
country destinations of OFWs. or entities; and
(2) disciplinary action cases and other
For this purpose, the government recognizes special case which are administrative
any of the following as a guarantee of the in character, involving employers,
receiving country for the protection of principals, contracting partners and
overseas Filipino workers: Ftlipino migrant workers.
● It has existing labor and social laws
protecting the rights of workers, POEA decisions on cases within its
including migrant workers; jurisdiction are appeal.able not to the NLRC
● It is a signatory to and/ or a ratifier of nor directly to the Court of Appeals but to the
multilateral conventions, declarations Secretary of Labor. As specifically provided in
or resolutions relating to the protection the POEA Rules and Regulations of 2016: "The
of workers, including migrant workers; Office of the DOLE Secretary shall have
and exclusive jurisdiction to act on appeals cases
● It has concluded a bilateral agreement decided by the Administration [POEA]."
or arrangement with the government
on the protection of the rights of
overseas Filipino Workers:

In the absence of a clear showing that any of
the aforementioned guarantees exists in the
corm try of destination of the migrant
workers, no permit for deployment shall be
/
identified, all costs attendant to repatriation
OTHER MATTERS INCIDENTAL TO shall be borne by the OWWA.
OVERSEAS EMPLOYMENT
For this purpose, there is hereby created and
established an emergency repatriation fund
under the administration, control and
REPATRIATION
supervision of the OWWA, initially to consist of
One hundred million pesos (P100,000,000.00),
RA 8042, Secs. 14-18 and 36 which shall be taken from the existing fund
Recall: controlled and administered by the OWWA.
Thereafter, such fund shall be provided for in the
SECTION 14. Travel Advisory/Information General Appropriations Act from year to year:
Dissemination. — To give utmost priority to the Provided, That the amount appropriated shall in
establishment of programs and services to no case be less than One hundred million pesos
prevent illegal recruitment, fraud and (P100,000,000.00), inclusive of outstanding
exploitation or abuse of Filipino migrant balances.
workers, all embassies and consular offices,
through the Philippine Overseas Employment
Administration (POEA), shall issue travel SECTION 16. Mandatory Repatriation of
advisories or disseminate information on labor Underage Migrant Workers. — Upon discovery or
and employment conditions, migration realities being informed of the presence of migrant
and other facts; and adherence of particular workers whose actual ages fall below the
countries to international standards on human minimum age requirement for overseas
and workers’ rights which will adequately deployment, the responsible officers in the
prepare individuals into making informed and foreign service shall without delay repatriate
intelligent decisions about overseas said workers and advise the Department of
employment. Such advisory or information shall Foreign Affairs through the fastest means of
be published in a newspaper of general communication available of such discovery and
circulation at least three (3) times in every other relevant information.
quarter.

SECTION 17. Establishment of Re-placement
SECTION 15. Repatriation of Workers; and Monitoring Center. — A re-placement and
Emergency Repatriation Fund. — The monitoring center is hereby created in the
repatriation of the worker and the transport of Department of Labor and Employment for
his personal belongings shall be the primary returning Filipino migrant workers which shall
responsibility of the agency which recruited or provide a mechanism for their reintegration into
deployed the worker overseas. All costs the Philippine society, serve as a promotion
attendant to repatriation shall be borne by or house for their local employment, and tap their
charged to the agency concerned and/or its skills and potentials for national development.
principal. Likewise, the repatriation of remains
and transport of the personal belongings of a The Department of Labor and Employment, the
deceased worker and all costs attendant thereto Overseas Workers Welfare Administration, and
shall be borne by the principal and/or the local the Philippine Overseas Employment
agency. However, in cases where the Administration shall, within ninety (90) days
termination of employment is due solely to the from the effectivity of this Act, formulate a
fault of the worker, the principal/employer or program that would motivate migrant workers to
agency shall not in any manner be responsible plan for productive options such as entry into
for the repatriation of the former and/or his highly technical jobs or undertakings, livelihood
belongings. and entrepreneurial development, better wage
employment, and investment of savings.
The Overseas Workers Welfare Administration
(OWWA), in coordination with appropriate For this purpose, the Technical Education and
international agencies, shall undertake the Skills Development Authority (TESDA), the
repatriation of workers in cases of war, Technology Livelihood Resource Center (TLRC),
epidemic, disaster or calamities, natural or and other government agencies involved in
man-made, and other similar events without training and livelihood development shall give
prejudice to reimbursement by the responsible priority to returnees who had been employed as
principal or agency. However, in cases where the domestic helpers and entertainers.
principal or recruitment agency cannot be

/
SECTION 18. Functions of the Re-placement may recover the cost of repatriation from the
and Monitoring Center. — The Center shall worker if the termination of employment was
provide the following services: due solely to his/her fault.

(a) Develop livelihood programs and projects for Every contract for overseas employment shall
returning Filipino migrant workers in provide for the primary responsibility of agency
coordination with the private sector; to advance the cost of plane fare, and the
obligation of the worker to refund the cost
(b) Coordinate with appropriate private and thereof in case his/her fault is determined by
government agencies in the promotion, the Labor Arbiter.
development, re-placement and the full

utilization of their potentials;
Section 54. Repatriation Procedure. – When a
(c) Institute, in cooperation with other need for repatriation arises and the foreign
government agencies concerned, a employer fails to provide for its cost, the
computer-based information system on skilled responsible personnel at site shall
Filipino migrant workers which shall be simultaneously notify OWWA and the POEA of
accessible to all local recruitment agencies and such need. The POEA shall notify the agency
employers, both public and private; concerned of the need for repatriation. The
agency shall provide the plane ticket or the
(d) Provide a periodic study and assessment of prepaid ticket advice (PIA) to the Filipinos
job opportunities for returning Filipino migrant Resource Center or to the appropriate Philippine
workers; and Embassy; and notify POEA of such compliance.
The POEA shall inform OWWA of the action of
(e) Develop and implement other appropriate the agency.
programs to promote the welfare of returning

Filipino migrant workers.
Section 55. Action on Non-Compliance. – If the

employment agency fails to provide the ticket or
SECTION 36. Non-increase of fees; Abolition of PTA within 48 hours from receipt of the notice,
Repatriation Bond. - Upon approval of this Act, the POEA shall suspend the license of the
all fees being charged by any government office agency or impose such sanctions as it may
on migrant workers shall remain at their present deem necessary. Upon notice from the POEA,
levels and the repatriation bond shall be OWWA shall advance the costs of repatriation
established. with recourse to the agency or principal. The
administrative sanction shall not be lifted until

the agency reimburses the OWWA of the cost of
repatriation with legal interest.
Omnibus Rules Implementing RA 8042, Secs.
52-61
Section 52. Primary Responsibility for Section 56. Emergency Repatriation. – The
Repatriation. – The repatriation of the worker, or OWWA, in coordination with DFA, and in
his/her remains, and the transport of his/her appropriate situations, with international
personal effects shall be the primary agencies, shall undertake the repatriation of
responsibility of the principal or agency which workers in cases of war, epidemic, disasters or
recruited or deployed him/her abroad. All costs calamities, natural or man-made, and other
attendant thereto shall be borne by the principal similar events without prejudice to
or the agency concerned. reimbursement by the responsible principal or
agency within sixty (60) days of notice. In such
case, POEA will simultaneously identify and give
Section 53. Repatriation of Workers. – The notice to the agencies concerned.
primary responsibility to repatriate entails the
obligation on the part of the principal or agency
to advance the cost of plane fare and to Section 57. Mandatory Repatriation of Underage
immediately repatriate the worker should the Migrant Workers. – The responsible officer at
need for it arise, without a prior determination of the foreign service post shall immediately cause
the cause of the termination of the worker’s the repatriation of underage Filipino migrant
employment. However, after the worker has workers. The cost attendant to this activity shall
returned to the country, the principal or agency be borne correspondingly by the agency and/or
principal or the OWWA as the case maybe.
/
borne by or charged to the agency concerned
Section 58. Other Cases of Repatriation. – In all and/or its principal.167
cases where the principal or agency of the
worker cannot be identified, cannot be located In no case shall an employment agency
or had ceased operations, and the worker is in require any bond or cash deposit from the
need and without means, the OWWA personnel worker to guarantee his/her repatriation. The
at jobsite, in coordination with the DFA, shall mandatory repatriation bond is abolished as
cause the repatriation. All costs attendant to of June 17, 1995 pursuant to Section 36
repatriation borne by the OWWA are chargeable ofR.A. No. 8042
to the Emergency Repatriation Fund provided in

the Act, without prejudice to the OWWA
requiring the agency/employer or the worker to Q: What happens in the repatriation of the
reimburse the cost of repatriation, in appropriate remains?
cases. A: The repatriation of remains and transport
of personal belongings of a deceased worker

and all costs attendant thereto shall be borne
Section 59. Emergency Repatriation Fund. – by the principal and/or the local agency
When repatriation becomes immediate and
necessary, the OWWA shall advance the needed Q: What happens if the worker is at fault?
costs from the Emergency Repatriation Fund A: In cases where the termination of
without prejudice to reimbursement by the
employment is due solely to the fault of the
deploying agency and/or principal, or the worker
in appropriate cases. Simultaneously, the POEA worker, the principal/employer, or agency shall
shall ask the concerned agency to work towards not in any manner be responsible for t.he
reimbursement of costs advanced by the repatriation of the former and/ or his
OWWA. In cases where the cost of repatriation belongings.
shall exceed One Hundred Million
(P100,000,000.00) Pesos, the OWWA shall make Q: What happens in cases of disasters?
representation with the Office of the President A: The OWWA, in coordination with
for immediate funding in excess of said appropriate international agencies, shall
amount. undertake the repatriation of workers in cases
of war epidemic, disasters or calamities,
Section 60. Prohibition on Bonds and Deposits. natural or man-made, and other similar
– In no case shall an employment agency events, without prejudice to reimbursement by
require any bond or cash deposit from the the responsible principal or agency. However,
worker to guarantee performance under the in cases where the principal or recruitment
contract or his/her repatriation. agency cannot be identified, all costs
attendant to repatriation shall be borne by the
OWWA.
Section 61. Abolition of Mandatory Repatriation
Bond. - Pursuant to Section 36 of R.A 8042, the
Q: Is Sec. 15 of RA 8042 constitutional?
mandatory repatriation bond is abolished as of
A: Yes. In Equi-Asia Placement Inc v. DFA, the
7 June 1995.
Court upheld the validity of the law and the
rules which provide that, "the repatriation of
remains and transport of the personal
Q: What is repatriation? belongings of a deceased worker and all
A: It is where a worker has to be sent or costs attendant thereto shall be borne by the
brought back to the Philippines. principal and/or the local agency." The
mandatory nature of said obligation is
The repatriation of the worker and the characterized by the legislature's use of the
transport of his personal belongings shall be word "shall." That the concerned government
the primary responsibility of OWWA which agencies opted to demand the performance
recruited or deployed the worker overseas. All of said responsibility solely upon petitioner
costs attendant to the repatriation shall be does ndt make said directives invalid as the
law plainly obliges a local placement agency
167
See Section 15 of RA 8042.
/
to bear the burden of repatriating the remains EO 857
of a deceased OFW with or without recourse
GOVERNING THE REMITTANCE TO THE
to the principal abroad. In this regard, the
PHILIPPINES OF FOREIGN EXCHANGE
Court see no reason to invalidate Section 52
EARNINGS OF FILIPINO WORKERS
of the omnibus rules as RA No. 8042 itself
ABROAD AND FOR OTHER PURPOSES
permits the situation wherein a local

recruitment agency can be held exclusively
WHEREAS, existing laws and regulations
responsible for the repatriation of a deceased
governing remittances of foreign exchange
OFW.
earnings of overseas Filipino workers to

their families, dependents and/or
The placement agency may try to establish
beneficiaries have not been fully effective in
the worker's fault, but while doing so the
ensuring that they are coursed through
agency must repatriate the OFW. The Court
official financial institutions of the
ruled that, repatriation is in effect an
Philippine Government of their authorized
unconditional responsibility of the agency
agents;
and/ or its principal that cannot be delayed by

an investigation of why the worker was
WHEREAS, it is necessary to protect the
terminated from employment. To be left
welfare of families, dependents and
stranded in a foreign land without the financial
beneficiaries of Filipino workers abroad and
means to return home and being at the mercy
to ensure that the foreign exchange
of unscrupulous individuals is a violation of
earnings of these workers are remitted
the OFW's dignity and his human rights. These
through authorized financial institutions of
are the same rights RA. No. 8042 seeks to
the Philippine Government in line with the
protect.
country’s economic development program;

Q: What happens in cases of underage
WHEREAS, non-compliance with these
workers?
aforesaid laws and regulations and
A: Sec. 16 of RA 8042 states that:
recourse to the use of unauthorized and
● Upon discovery or being informed of
unofficial financing institutions has led to
the presence of migrant workers
the detriment of the country’s balance of
whose actual ages fall below the
payments and economic development
minimum age requirement for
program;
overseas deployment, the responsible

officers in the foreign service shall
WHEREAS, it is imperative that the
without delay repatriate said workers
mandatory remittance requirement be fully
and advise the Department of Foreign
complied with by all concerned through the
Affairs through the fastest means of
institution of appropriate remittance
communication available of such
facilities and the imposition of effective
discovery and other relevant
sanctions;
information.

NOW, THEREFORE, I, FERDINAND E.

MARCOS, President of the Philippines, by
FOREIGN EXCHANGE REMITTANCE virtue of the powers vested in me by the
Constitution, do hereby order and

promulgate:
Art. 22, Labor Code

ARTICLE 22. Mandatory Remittance of SECTION 1. It shall be mandatory for every
Foreign Exchange Earnings. — It shall be Filipino contract worker abroad to remit
mandatory for all Filipino workers abroad to regularly a portion of his foreign exchange
remit a portion of their foreign exchange earnings to his beneficiary in the Philippines
earnings to their families, dependents, through the Philippine banking system.
and/or beneficiaries in the country in Licensed agencies and other entities
accordance with rules and regulations authorized by the Ministry of Labor and
prescribed by the Secretary of Labor. Employment to recruit Filipino workers for
/
overseas employment are similarly required SECTION 5. For purposes of this Order,
to remit their workers’ earnings as provided proof of compliance with the mandatory
for in this Order. remittance requirement as mentioned in
Section 1 hereof, may consist of any of the
SECTION 2. All contracts of employment following documents or such alternative as
and agency or service agreements may be approved by the Central Bank of the
submitted to the Ministry of Labor and Philippines showing that the contract
Employment shall contain a proviso that worker had in fact effected aforesaid
shall make it mandatory for workers to remittance and had caused the surrender of
remit to the Philippines in foreign exchange the same for pesos through the Philippine
at least the following portions of their banking system:
earnings: a. Confirmed bank (foreign) remittance
a) Seamen or mariners: Seventy (70) form;
percent of basic salary; b. Certification from employer, duly
b) Workers of Filipino contractors and authenticated, that remittance has been
construction companies: Seventy (70) effected;
percent of basic salary; c. Certification as to the surrender for pesos
c) Doctors, engineers, teachers, nurses and to the Philippine banking system; and
other professional workers whose contract d. Receipt of International Postal Money
provide for free board and lodging: Seventy Order.
(70) percent of basic salary;
d) All other professional workers whose SECTION 6. Remittances of foreign
employment contracts do not provide for exchange earnings may be undertaken
free board and lodging facilities: Fifty (50) individually by the contract worker or
percent of basic salary; collectively through the employer under a
e) Domestic and other service workers: Fifty payroll deduction scheme, in accordance
(50) percent of basic salary; with Central Bank regulations and
f) All other workers not falling under the applicable guidelines.
aforementioned categories: Fifty (50)
percent of basic salary. SECTION 7. As a prerequisite for
accreditation by the Ministry of Labor and
SECTION 3. Passports issued to Filipino Employment, an employer shall commit to
contract workers shall have an initial period provide facilities to effect the remittances
of validity of one year provided that the and monitoring of foreign exchange
Ministry of Foreign Affairs may adjust, as earnings of Filipino workers in his employ.
circumstances may require, the initial
passport validity period. The passport shall SECTION 8. The Central Bank of the
be renewable every year upon submission Philippines shall cause necessary
of usual requirements and presentation of arrangements to be made with the
documentary proof of compliance to the appropriate financing institutions to handle
remittance requirement in the percentages the remittances called for in this Order. In
provided for in this Order. The Ministry of the absence of appropriate banking
Foreign Affairs shall not extend or renew facilities, the Embassy or Consulate nearest
the passport of any contract worker unless to the job site, in accordance with local
proof of his compliance with the mandatory laws and regulations, may act in the interim
remittance requirement is submitted. as the channel for remittance of foreign
exchange earnings. The Ministry of Foreign
SECTION 4. The Ministry of Labor and Affairs shall immediately inform the Central
Employment shall not approve the renewal Bank of the Philippines these arrangements
of employment contracts and agency or and shall remit all funds thereto.
service agreements unless proof of
remittance of foreign exchange earnings is SECTION 9. Contract workers who fail to
submitted. comply with the requirements of this Order
shall be suspended or excluded from the
/
list of eligible workers for overseas on migrant workers shall remain at their present
employment. In cases of subsequent levels and the repatriation bond shall be
violations, he shall be repatriated from the established.
job site at the expense of the employer or at
his expense, as the case may be. Filipino or
SECTION 37. Congressional Migrant Workers
foreign employers and/or their
Scholarship Fund. - There is hereby created a
representatives who fail to comply with the Congressional Migrant Workers Scholarship
requirements under this Order shall be Fund which shall benefit deserving migrant
excluded from the overseas employment workers and/or their immediate descendants
program. In the case of local private below twenty-one (21) years of age who intent
employment agencies and entities, failure to pursue courses or training primarily in the
to comply with the provisions hereof shall field of science and technology. The initial seed
be a ground for cancellation of their license fund of two hundred million pesos
or authority to recruit workers for overseas (P200,000,000.00) shall be constituted from the
employment, without prejudice to their following sources:

liabilities under existing laws and
(a) Fifty million pesos (P50,000,000.00) from the
regulations. unexpected Countrywide Development Fund for
1995 in equal sharing by all members of
SECTION 10. The Ministries of Labor and Congress; and
Employment and Foreign Affairs and the
Central Bank of the Philippines shall draw (b) The remaining one hundred fifty million
up the necessary rules and procedures for pesos (P150,000,000.00) shall be funded from
the proper implementation of this Order the proceeds of Lotto.
within ten (10) days from the signing
hereof. The Congressional Migrant Workers Scholarship
Fund as herein created shall be administered by
the DOLE in coordination with the Department of
Note: E.O. No. 857; as amended, prescribes Science and Technology (DOST). To carry out
the percentages of foreign exchange the objectives of this section, the DOLE and the
remittance ranging from 50% to 80% of the DOST shall formulate the necessary rules and
basic salary, depending on the worker’s kind regulations.
of job.
Q: What tax are migrant workers exempt
from?
Rules Implementing EO 857, Rule 2, Sec. 4; A: Art. 35 of the Labor Code provides that they
Rule 5, Secs. 1-5 are exempt from travel tax and airport fees.

EXCEPTION FROM TAXES AND FEES; MIGRANT WORKERS’ DAY
SCHOLARSHIP

RA 8042, Sec. 39
RA 8042, Secs. 35-37
SECTION 39. Migrant Workers Day. - The day of
SECTION 35. Exemption from Travel Tax and signing by the President of this Act shall be
Airport Fee. - All laws to the country designated as the Migrant Workers Day and
notwithstanding, the migrant worker shall be shall henceforth be commemorated as such
exempt from the payment of travel tax and annually.
airport fee upon proper showing of proof of
entitlement by the POEA.

Recall: INCENTIVES TO PROFESSIONALS
SECTION 36. Non-increase of fees; Abolition of

Repatriation Bond. - Upon approval of this Act, RA 8042, Sec. 31
all fees being charged by any government office SECTION 31. Incentives to Professionals and
/
Other Highly-skilled Filipinos Abroad. - Pursuant employment contract.
to the objective of encouraging professionals
and other highly-skilled Filipinos abroad Section 3. Handling of Cases. - The procedure/s
especially in the field of science and technology provided in this Book shall also apply in
to participate in, and contribute to national disciplinary cases involving contract workers,
development, the government shall provide including seamen.
proper and adequate incentives and programs Section 4. Who May be Included in the
so as to secure their services in priority Watchlist. - A contract worker, or a seaman,
development areas of the public and private who has a pending complaint for disciplinary
sectors. action and those against whom a warrant of
arrest or hold departure order issued by the
appropriate agency, shall be included in the
watchlist.
DISCIPLINARY ACTIONS
Section 5. Penalties for Breach of Discipline. -
Breach of discipline may be penalized by:
1997 POEA Rules, Book VII, Rule 7 a. Stern warning;
b. repatriation to the Philippines at the worker’s
Section 1. Disciplinary Action. - Complaints for
expense;
breach of discipline against a contract worker
c. suspension; and
shall be filed with the Adjudication Office or
d. disqualification from the overseas
Regional Office, as the case may be. The
employment program. In case of seamen,
Administration may, motu proprio, undertake a
delisting from the registry.
disciplinary action against a worker for breach

of contract. The Administration shall establish a
The penalty/ies imposed by the Administration
system of watchlisting and blacklisting of
shall be without prejudice to whatever civil or
overseas contract workers.
criminal liability that may be imposed by

appropriate courts for said breach of discipline.
Section 2. Grounds for Disciplinary Action. -

Commission by the worker of any of the
Section 6. Disqualification of Contract Worker. -
offenses enumerated below or of similar
Contract Workers, including seamen, against
offenses while working overseas shall be
whom penalties have been imposed or with
subject to appropriate disciplinary actions as
pending obligations imposed upon them
the Administration may deem necessary:
through an order, decision or resolution shall be
1. Commission of a felony or crime punishable
included in the POEA Blacklist. Workers in the
by Philippine Laws or by the laws of the host
Blacklist shall be disqualified from overseas
country;
employment unless properly cleared by the
2. Drug addiction or possession or trafficking of
Administration or until their suspension is
prohibited drugs;
served or lifted.
3. Desertion or abandonment;

4. Drunkenness, especially where the laws of the
Section 7. Delisting of the Contract Worker’s
host country prohibit intoxicating drinks;
Name from the POEA Watchlist. - The name of
5. Gambling especially where the laws of the
an overseas worker may be excluded, deleted
host country prohibit the same;
and removed from the POEA Watchlist only after
6. Initiating or joining a strike or work stoppage
disposition of the case by the Administration.
where the laws of the host country prohibit
strikes or similar actions;
7. Creating trouble at the worksite or in the
vessel;
8. Embezzlement of company funds or moneys DISPUTE SETTLEMENT
and properties or a fellow worker entrusted for

delivery to kin or relatives in the Philippines;
Arts. 36-37, Labor Code
9. Theft or robbery;
10. Prostitution; Recall:
11. Vandalism or destroying company property; ART. 36. Regulatory Power. — The Secretary of
12. Gunrunning or possession of deadly Labor shall have the power to restrict and
weapons; regulate the recruitment and placement
13. Violation/s of the sacred practices of the activities of all agencies within the coverage of
host country; and this Title and is hereby authorized to issue
14. Unjustified breach of government approved orders and promulgate rules and regulations to
/
carry out the objectives and implement the Such liabilities shall continue during the entire
provisions of this Title. period or duration of the employment contract
and shall not be affected by any substitution,
amendment or modification made locally or in a
ART. 37. Visitorial Power. — The Secretary of foreign country of the said contract.
Labor or his duly authorized representatives
may, at any time, inspect the premises, books of Any compromise/amicable settlement or
accounts and records of any person or entity voluntary agreement on money claims inclusive
covered by this Title, require it to submit reports of damages under this section shall be paid
regularly on prescribed forms, and act on within four (4) months from the approval of the
violation of any provisions of this Title. settlement by the appropriate authority.

In case of termination of overseas employment
without just, valid or authorized cause as defined
RA 8042, Secs. 9-13 by law or contract, the workers shall be entitled
SEC. 9. VENUE. - A criminal action arising from to the full reimbursement of his placement fee
illegal recruitment as defined herein shall be with interest of twelve percent (12%) per annum,
filed with the Regional Trial Court of the plus his salaries for the unexpired portion of his
province or city where the offense was employment contract or for three (3) months for
committed or where the offended party actually every year of the unexpired term, whichever is
resides at the same time of the commission of less.
the offense: Provided, That the court where the
criminal action is first filed shall acquire Non-compliance with the mandatory periods for
jurisdiction to the exclusion of other courts. resolutions of cases provided under this section
Provided, however, That the aforestated shall subject the responsible officials to any or
provisions shall also apply to those criminal all of the following penalties:
actions that have already been filed in court at (a) The salary of any such official who fails to
the time of the effectivity of this Act. render his decision or resolutions within the
prescribed period shall be, or caused to be,
withheld until the said official complies
therewith;
SEC. 10. MONEY CLAIMS. - Notwithstanding
(b) Suspension for not more than ninety (90)
any provision of law to the contrary, the Labor
days; or
Arbiters of the National Labor Relations
(c) Dismissal from the service with
Commission (NLRC) shall have the original and
disqualifications to hold any appointive public
exclusive jurisdiction to hear and decide, within
office for five (5) years.
ninety (90) calendar days after filing of the

complaint, the claims arising out of an
Provided, however, that the penalties herein
employer-employee relationship or by virtue of
provided shall be without prejudice to any
any law or contract involving Filipino workers for
liability which any such official may have
overseas deployment including claims for
incurred under other existing laws or rules and
actual, moral, exemplary and other forms of
regulations as a consequence of violating the
damages.
provisions of this paragraph.

The liability of the principal/employer and the
recruitment/placement agency for any and all
claims under this section shall be joint and SEC. 11. MANDATORY PERIODS FOR
several. This provisions shall be incorporated in RESOLUTION OF ILLEGAL RECRUITMENT
the contract for overseas employment and shall CASES. - The preliminary investigations of
be a condition precedent for its approval. The cases under this Act shall be terminated within
performance bond to be filed by the a period of thirty (30) calendar days from the
recruitment/placement agency, as provided by date of their filing. Where the preliminary
law, shall be answerable for all money claims or investigation is conducted by a prosecution
damages that may be awarded to the workers. If officer and a prima facie case is established,
the recruitment/placement agency is a juridical the corresponding information shall be filed in
being, the corporate officers and directors and court within twenty-four (24) hours from the
partners as the case may be, shall themselves termination of the investigation. If the
be jointly and solidarily liable with the preliminary investigation is conducted by a
corporation or partnership for the aforesaid judge and a prima facie case is found to exist,
claims and damages. prosecution officer within forty-eight (48) hours
/
from the date of receipt of the records of the Disciplinary action cases and other special
case. cases, as mentioned in the preceding Section,
shall be filed with the POEA Adjudication Office.

SEC. 12. PRESCRIPTIVE PERIODS. - Illegal
Q: What is that status of the phase out
recruitment cases under this Act shall prescribe
in five (5) years: Provided, however, That illegal
provision under the law?
recruitment cases involving economic sabotage A: R.A No. 8042, Section 39, provided that
as defined herein shall prescribe in twenty (20) within five years from its effectivity of (in
years.. 1995), the DOLE should phase out the
regulatory functions of POEA "pursuant to the

objectives of deregulation."
SEC. 13. FREE LEGAL ASSISTANCE,
PREFERENTIAL ENTITLEMENT UNDER THE But R.A. No. 9422, approved on April 10, 2007,
WITNESS PROTECTION PROGRAM. - A repealed the phase out provision ofR.A. No.
mechanism for free legal assistance for victims
8042. The repeal made the issue of
of illegal recruitment shall be established within
deregulation "moot and academic."168
the Department of Labor and Employment
including its regional offices. Such mechanism
must include coordination and cooperation with Q: Who has jurisdiction over (1) monetary
the Department of Justice, the Integrated Bar of claims; (2) disciplinary cases; and (3) illegal
the Philippines, and other non-governmental recruitment?
organizations and volunteer groups. The A: Under Sec. 10 of RA 8042, NLRC has
provisions of Republic Act No. 6981 to the jurisdiction over monetary claims.
contrary, notwithstanding, any person who is a
victim of illegal recruitment shall be entitled to For disciplinary actions, the action shall be
the Witness Protection Program provided
filed by the adjudication office or regional
thereunder.
office of the POEA under the 1997 POEA Rules
and the Omnibus Rules Implementing Rules of
RA 8042.
Omnibus Rules Implementing RA 8042, Secs.
28-29 For criminal actions of illegal recruitment, the
Section 28. Jurisdiction of the POEA. – The Regional Trial Court has jurisdiction under
POEA shall exercise original and exclusive Sec. 9 of RA 8042.
jurisdiction to hear and decide:
Note: It is a time-honored rule that in
(a) all cases, which are administrative in controversies between a worker and his
character, involving or arising out of violations employer, doubts reasonably arising from the
of rules and regulations relating to licensing and
evidence, or in the interpretation of
registration of recruitment and employment
agreements and writing should be resolved in
agencies or entities; and

the worker’s favor. The policy is to extend the
(b) disciplinary action cases and other special applicability of the decree to a greater number
cases, which are administrative in character, of employees who can avail of the benefits
involving employers, principals, contracting under the law, which is in consonance with the
partners and Filipino migrant workers. avowed policy of the State to give maximum
aid and protection to labor.169

Section 29. Venue. – The cases mentioned in Also, remember that:
Section 28(a) of this Rule, may be filed with the Procedural due process in dismissal cases
POEA Adjudication Office or the DOLE/POEA
consists of the twin requirements of notice
regional office of the place where the complaint
and hearing. The employer must furnish the
applied or was recruited, at the option of the
complainant. The office with which the employee with two written notices before the
complaint was first filed shall take cognizance termination of employment can be effected:
of the case. (1) the first notice apprises the employee of

168
See Hon. PA Sto. Tomas v. Salac.
169
See Acuna v. CA.
/
the particular acts or omissions for which his entered into by and between GCI and
dismissal is sought; and (2) the second notice AMOSUP, the union to which the employee
informs the employee of the employer’s belongs.
decision to dismiss him. Before the issuance
of the second notice, the requirement of a [I]t is clear that the parties, in the first place,
hearing must be complied with by giving the really intended to bring to conciliation or
worker an opportunity to be heard. It is not voluntary arbitration any dispute or conflict in
necessary that an actual hearing be the interpretation or application of the
conducted. Substantive due process, on the provisions of their CBA. It is settled that when
other hand, requires that dismissal by the the parties have validly agreed on a procedure
employer be made under a just or authorized for resolving grievances and to submit a
cause under Articles 282 to 284 of the Labor dispute to voluntary arbitration then that
Code.170 procedure should be strictly observed. It may
not be amiss to point out that the
Q: Who has jurisdiction on disputes regarding abovequoted provisions of the CBA are in
the interpretation of a collective bargaining consonance with Rule VII, Section 7 of the
agreement involving migrant or overseas present Omnibus Rules and Regulations
Filipino workers? Implementing the Migrant Workers and
A: It is true that R.A. 8042 is a special law Overseas Filipinos Act of 1995, as amended
governing overseas Filipino workers. However, by Republic Act No. 10022, which states that
there is no specific provision thereunder “[f]or OFWs with collective bargaining
which provides for jurisdiction over disputes agreements, the case shall be submitted for
or unresolved grievances regarding the voluntary arbitration in accordance with
interpretation or implementation of a CBA. Articles 261 and 262 of the Labor Code.”
Section 10 of R.A. 8042, simply speaks, in
general, of “claims arising out of an Q: What is the prescriptive period for illegal
employer-employee relationship or by virtue of recruitment?
any law or contract involving Filipino workers A: For simple illegal recruitment, 5 years. But
for overseas deployment including claims for for illegal recruitment with economic
actual, moral, exemplary and other forms of sabotage, 20 years.171
damages.” On the other hand, Articles 217(c)
and 261 of the Labor Code are very specific in Q: If the employment is terminated without
stating that voluntary arbitrators have valid cause, what relief is the OFW entitled
jurisdiction over cases arising from the to?
interpretation or implementation of collective A: As originally worded, Section 10 of RA. No.
bargaining agreements. This involves a 8042 entitled the employee to:
situation where the special statute (R.A. 8042) (1) Full reimbursement of his placement fee
refers to a subject in general, which the with 12% interest per annum;
general statute (Labor Code) treats in (2) His salaries for the unexpired portion of
particular. his employment contract or for three months
for every year of the unexpired term,
In Estate of Dulay v. Aboitiz, the basic issue whichever is less.
raised by Merridy Jane in her complaint filed
with the NLRC is: which provision of the In Serrano v. Gallant, the Court declared the
subject CBA applies insofar as death benefits three-month option unconstitutional for
due to the heirs of Nelson are concerned. The violating the equal protection clause and the
Court agrees with the CA in holding that this substantive due process rule in the
issue clearly involves the interpretation or Constitution.172
implementation of the said CBA. Thus, the ● Prior to the effectivity of RA No. 8042,
specific or special provisions of the Labor illegally dismissed OFWs, no matter
Code govern. [T]he Court agrees with the how long the period of their
contention that the CBA is the law or contract employment contracts, were entitled
between the parties. Article 13.1 of the CBA
171
See Sec. 12 of RA 8042.
170
See Skippers United v. Doza. 172
See Yap v. Thenamaris Ship’s Management.
/
to their salaries for the entire fine and the return of all documents at no cost
unexpired portions of their contracts. to the worker. As earlier discussed, they do
The Court finds no discernible state not forfend a seafarer from instituting an
interest, let alone a compelling one, action for damages against the employer or
that is sought to be protected or agency which has failed to deploy him.

advanced by the adoption of the
subject clause. The subject clause Section 10 of Republic Act No. 8042 (Migrant
does not state or imply any definitive Workers Act) which provides for money
governmental purpose; and it is for claims by reason of a contract involving
that precise reason that the clause Filipino workers for overseas deployment is
violates not just petitioner’s right to applicable here.
equal protection, but also her right to
substantive due process under Section Q: Can a local agent avoid liability for
1, Article III of the Constitution. payment of monetary awards on the basis
that s/he had no control over the
After this declaration of nullity, nonetheless, implementation of the contract?
the Congress restored the annulled clause A: No. In the first place, such joint and
through R.A. No. 10022 in 2010. solidary liability is required prior to the
issuance of a license to petitioner to operate a
Q: Is the restoration of the annulled provision recruitment agency. Furthermore, Section 10
valid? of R.A. No. 8042 provides:
A: No. In Sameer Overseas Placement v. Sec. 10. Money Claims. x x x
Cabiles, the Court ruled that when a law or a
provisions of law is null because it is The liability of the
inconsistent with the Constitution, the nullity principal/employer and the
cannot be cured by reincorporation or recruitment/placement agency for
reenactment of the same or a similar law or any and all claims under this
provision. A law or provision of law that was section shall be joint and several.
already declared unconstitutional remains as
such unless circumstances have so changed In Gopio v. Bautista, the Court ruled that
as to warrant a reverse conclusion. Gopio thus cannot evade liability by claiming
that she did not have any control over the
The declaration of nullity in Serrano v. Gallant foreign employer and had nothing to do with
is therefore reiterated in Sameer v. Cabiles. Bautista's dismissal, because her liability is
Hence, the three-month salary option is no defined by law and contract.
longer allowed.
The burden devolves not only upon the
Q: How will a seafarer be compensated by foreign-based employer but also on the
reason of the unreasonable non-deployment? employment or recruitment agency to adduce
A: The POEA Rules Governing the Recruitment evidence to convincingly show that the
and Employment of Seafarers do not provide worker's employment was validly and legally
for the award of damages to be given in favor terminated. This is because the latter is not
of the employees. The claim provided by the only an agent of the former, but is also
same law refers to a valid contractual claim solidarily liable with the foreign principal for
for compensation or benefits arising from any claims or liabilities arising from the
employer-employee relationship or for any dismissal of the worker.
personal injury, illness or death at levels
provided for within the terms and conditions R.A. No. 8042 is a police power measure
of employment of seafarers. However, the intended to regulate the recruitment and
absence of the POEA Rules with regard to the deployment of OFWs. It aims to curb, if not
payment of damages to the affected seafarer eliminate, the injustices and abuses suffered
does not mean that the seafarer is precluded by numerous OFWs seeking to work abroad.
from claiming the same. The sanctions In Sameer, the CoURT explained that the
provided for non-deployment do not end with provision on joint and several liability in R.A.
the suspension or cancellation of license or No. 8042 is in line with the state's policy of
/
affording protection to labor and alleviating employment control. Under no
workers' plight. It assures overseas workers circumstances shall they be allowed to
that their rights will not be frustrated by leave for their respective vessels
difficulties in filing money claims against without a copy of the processed
foreign employers. Hence, in the case of employment control.
overseas employment, either the local agency
or the foreign employer may be sued for all Consistent with welfare promotion thrusts: of
claims arising from the foreign employer's the Administration the following shall be the
labor law violations. This way, the overseas minimum provisions in employment contract
workers are assured that someone-at the very for Overseas Filipino Workers:
least, the foreign employer's local agent-may 1. Complete name and address of the
be made to answer for violations that the employer/company;
foreign employer may have committed. By 2. Position and jobsite of the Overseas
providing that the liability of the foreign Filipino Worker,
employer may be "enforced to the full extent" 3. Basic monthly salary, including
against the local agent, the overseas worker benefits and allowances and mode of
is assured of immediate and sufficient payment (The salary mall not be lower
payment of what is due them. The local than the prescribed minimum wage in
agency that is held to answer for the overseas the host country or prevailing
worker's money claims, however, is not left minimum wage in the ·National Capital
without remedy. The law does not preclude it Region of the Philippines, whichever is
from going after the foreign employer for higher); ·
reimbursement of whatever payment it has 4. Food and accommodation or the
made to the employee to answer for the monetary equivalent which shall be
money claims against the foreign employer. commensurate to the cost of living in
the host country, or off-setting
benefits;
5. Commencement and duration of
DISABILITY CLAIMS OF SEAFARERS
contract173;
6. Free transportation from and back to
POEA Memorandum Circular No. 10, Series the point of Hire, or offsetting benefits,
of 2010 (POEA Standard Employment and free inland transportation at the
Contract) jobsite or off-setting benefits;
7. Regular work hours and day off;174
GUIDELINES 8. Overtime pay for services rendered
1. The terms and conditions are the beyond the regular working hours, rest
minimum requirements acceptable to days and holidays;
the POEA for the employment of 9. Vacation leave and sick leave for every
Filipino seafarers on board year of service;
ocean-going ships. 10. Free emergency medical and dental
2. The parties may improve on the treatment;
minimum terms and conditions,
provided such improvements shall be
made in writing and appended to the
control of employment.
173
Note that, the employment contract between the
3. Manning agents shall use and submit employer and seafarer shall commence upon
actual departure from the Philippine airport or
to the POEA the full text of the
seaport in the point of hire and with the POEA
seaferer’s employment contract.
approved contract. It shall be effective until the
4. Manning agencies are directed to seafarer’s date of arrival at the point of hire upon
inform and provide copies of amended the termination of his employment. See Sec. 2 of
terms and conditions to all its POEA Memo Circular No. 10).
accredited principals/employers. 174
The seafarer shall not perform more than 48
5. Manning agencies shall use that its hours of regular work a week. Regular working
departing seafarers are given a copy hours for the seafarer shall be 8 hours in every 24
of the processed and approved hours, midnight to midnight, Monday to Sunday.
See Sec. 10 of POEA Memo Circular No. 10).
/
11. Just/valid/authorized causes for Q: What are the duties of the seafarer?
termination of the contract or of the A:
services of the workers, taking into
consideration the customs, traditions,
norms, mores, practices, company
policies and the labor laws and social
legislations of the host country;
12. Settlement of disputes;
13. Repatriation of worker in case of
imminent danger due to war, calamity,
and other analogous circumstances, at
the expense of the employer; and
14. In case of worker's death/repatriation
of Overseas Filipino Workers human (Sec. 1, POEA Memo Circular No. 10)
remains and personal belongings, at
the expense of the employer. Q: What are seafarers entitled to?
A: First, free passage from the point of hire to
Parties to overseas employment contracts are the port of embarkation175;
allowed to stipulate other terms and
conditions and other benefits. These benefits Second, baggage allowance176;
should be over and above the minimum
requirements-Said benefits shall not be Third, to be paid for their work regularly and in
contrary to law, public policy and morals. full in accordance with the contract177; and

The licensed recruitment agency shall, prior to Fourth, leave pay178 and shore leave179; among
the signing of the employment contract, other things.
inform the Overseas Filipino Workers of their
rights and obligations, and disclose the full Q: What is the transfer clause?
terms and conditions of employment. The A: Sec. 15 provides that:
licensed recruitment agency shall likewise
ensure that the Overseas Filipino Workers is
provided with a copy of the POEA-approved
contract, to give the Overseas Filipino Worker
ample opportunity to examine the same. (Sec. 15, POEA Memo Circular No. 10)

Q: What are the duties of the Q: What are the disciplinary procedures?
principal/employer/master/company? A:
A:

175
Sec. 3 of POEA Memo Circular No. 10.
(Sec. 1, POEA Memo Circular No. 10) 176

177

178
179
/
(Sec. 17, POEA Memo Circular No. 10)

Q: When is the employment of the seafarer
deemed terminated?
A:

(Sec. 20, POEA Memo Circular No. 10)

Q: What benefits for death are seafarers
(Sec. 18, POEA Memo Circular No. 10) entitled to?
A:
Q: What disability benefits for injury or illness
are seafarers entitled to?
A:

/
caused by an injury or sickness it shall
not be paid longer than 120
consecutive days except where such
injury or sickness still requires medical
attendance beyond 120 days but not
(Sec. 20, POEA Memo Circular No. 10) to exceed 240 days from onset of
disability in which case benefit for
Q: What is disability? temporary total disability shall be paid.
A: Disability does not refer to the injury or the However, the System may declare the
pain that it has occasioned, but to the loss or total and permanent status at anytime
impairment of earning capacity. There is after 120 days of continuous
disability when there is a diminution of temporary total disability as may be
earning power because of actual absence warranted by the degree of actual loss
from work. This absence must be due to the or impairment of physical or mental
injury or illness arising from, and in the course functions as determined by the
of, employment. Thus, the basis of System.
compensation is reduction of earning
power.180 This provision has to be read together with the
POEA-SEC, whose Section 20 (3) states:
Q: When can a seafarer claim for disability Upon sign-off from the vessel or medical
benefits for injury or illness/death? treatment , the seafarer is entitled to sickness
A: Section 20 of POEA-SEC [Standard allowance equivalent to his basic wage until he
Employment Contract, which is deemed is declared fit to work or the degree of
written into the seafarer's contract, provides permanent disability has been assessed by the
for the minimum requirements acceptable to company designated physician but in no case
the government before it approves the shall this period exceed one hundred twenty
deployment of Filipino seafarers on foreign (120) days.
ocean-going vessels.
GUIDELINES TO BE OBSERVED WHEN A
The two elements required for an injury/death SEARER CLAIMS PERMANENT AND TOTAL
to be compensable are: (1) the injury or DISABILITY BENEFITS:
illness/death is work-related, and (2) It 1. The company-designated physician
occurred during the term of the seafarer's must issue a final medical assessment
contract.181 on the seafarer's disability grading
within a period of 120 days from the
In Status Maritime Corp v. Doctolero, the Court time the seafarer reported to him;
ruled that while the fact that Doctolero 2. If the company-designated physician
suffered the disability during the term of his fails to give his assessment within the
contract was undisputed, it was evident that period of 120 days, without any
he had filed his complaint for disability justifiable reason, then the seafarer's
benefits before the company-designated disability becomes permanent and
physician could determine the nature and total;
extent of his disability, or before even the 3. If the company-designated physician
lapse of the initial 120-day period. fails to give his assessment within the
period of 120 days with a sufficient
The relevant rule is Section 2, Rule X, of the justification (e.g., seafarer required
Rules and Regulations implementing Book IV further medical treatment or seafarer
of the Labor Code , which states: was uncooperative), then the period of
● Period of entitlement. — (a) The diagnosis and treatment shall be
income benefit shall be paid beginning extended to 240 days. The employer
the first day of such disability. If has the burden to prove that the
company-designated physician has
See Maersk Filipinas Crewing v. Ramos.
180
sufficient justification to extend the
See Skippers United Pacific Inc. v. Lagne; See
181
period; and
also Heirs of Olorvida, Jr v. BSM Crew Service
Center Philippines.
/
4. If the company-designated physician return to the Philippines shall result in the
still fails to give his assessment within forfeiture of his/her right to claim disability
the extended period of 240 days, then benefits.184
the seafarer's disability becomes
permanent and total, regardless of any According to Section 20(A)(3) of the 2010
justification.182 "Amended Standard Terms and Conditions
Governing the Overseas Employment of
Note: The POEA-SEC creates a disputable Filipino Seafarers On-board Ocean-going
presumption in favor of the seafarer that Ships" (POEA Contract), when the seafarer
these illnesses are work-related. However, on suffers work-related illness during the term of
due process grounds, the claimant-seafarer his contract, the employer shall be liable to
must still prove by substantial evidence that pay for:
his work conditions caused or, at least, (1) the seafarer's wages;
increased the risk of contracting the disease. (2) costs of medical treatment both in a
This is because awards of compensation foreign port and in the Philippines until
cannot rest entirely on bare assertions and the seafarer is declared fit to work, or
presumptions. In order to establish the disability rating is established by
compensability of a non-occupational the company-designated physician;
disease, reasonable proof of work- connect on (3) sickness allowance which shall not
is sufficient – direct causal relation is not exceed 120 days; and
required. (4) reimbursement of reasonable medicine,
traveling, and accommodation
In determining the compensability of an expenses.
illness, the employment is not the sole factor
in the growth, development, or acceleration of The rationale for the rule [on mandatory
a claimants' illness to entitle him to the post-employment medical examination within
benefits provided for. It is enough that his three days from repatriation by a
employment contributed, even if only in a company-designated physician] is that
small degree, to the development of the reporting the illness or injury within three days
disease. Even assuming that the ailment of from repatriation fairly makes it easier for a
the worker was contracted prior to his physician to determine the cause of the
employment, this still would not deprive him illness or injury.
of compensation benefits. For what matters is
that his work had contributed, even in a small Q: What constitutes permanent and total
degree, to the development of the disease. disability?
Neither is it necessary, in order to recover A:
compensation, that the employee must have
PERMANENT TOTAL DISABILITY
been in perfect health at the time he
DISABILITY
contracted the disease. A worker brings with
him possible infirmities in the course of his Inability of a worker Disablement of an
employment, and while the employer is not to perform his job employee to earn
the insurer of the health of the employees, he for more than 120 wages in the same
takes them as he finds them and assumes the days, regardless of kind of work of
risk of liability.183 whether or not he similar nature that
losses the use of he was trained for,
Q: What is the effect of the failure of a any part of pis body. or accustomed to
seafarer to submit himself/herself to a perform, or any kind
post-employment medical examination? of work which a
A: The failure of a seafarer to submit person of his
himself/herself to a post-employment medical mentality and
examination by a company-designated attainments could
physician within three working days upon his do.
182
See Orient Hope v. Jara. See Manila Shipmanagement & Manning V.
184
183
See Skippers United Pacific Inc. v. Lagne. Aninang
/
third doctor must render his or her disability
Note: A total disability does not require that assessment. This is only reasonable since the
the employee be completely disabled, or parties may opt to resort to a third opinion
totally paralyzed. What is necessary is that the even during the conciliation and mediation
injury must be such that the employee cannot stage to abbreviate the proceedings, which
pursue his or her usual work and earn from it. usually transpire way beyond the 120/240 day
A total disability is considered permanent if it period for medical treatment.
lasts continuously for more than 120 days.185
The employer and the seafarer are bound by
An impediment should be characterized as the disability assessment of the third-party
partial and permanent not only under the physician in the event that they choose to
Schedule of Disabilities found in Section 32 of appoint one. Nonetheless, similar to what is
the (POEA-SEC) but should be so under the required of the company-designated doctor,
relevant provisions of the Labor Code and the the appointed third-party physician must
Amended Rules of Employment likewise arrive at a definite and conclusive
Compensation (AREC) implementing Title II, assessment of the seafarer's disability or
Book IV of the Labor Code. fitness to return to work before his or her
opinion can be valid and binding between the
Article 192 (c) (1) of the labor Code exp parties.187
res.sly grants total permanent disability:
Art. 192(c). The following disabilities shall be Note: Despite the binding effect of the third
deemed total and permanent doctor's assessment, a dissatisfied party may
(1) Temporary total disability lasting institute a complaint with the LA to contest
continuously for more than one the same on the ground of evident partiality,
hundred twenty days, except as corruption of the third doctor, fraud, other
otherwise provided for in the Rules. undue means, lack of basis to support the
assessment, or being contrary to law or
Q: What is the 120/240 Rule? settled jurisprudence.
A: As a rule, the "'company-designated
physicians must arrive at a definite The non-observance of the requirement to
assessment of the seafarer's fitness to work have the conflicting assessments determined
or permanent disability within the period of by a third doctor would mean that the
120 or 240 days, pursuant to Article 192(c)(1} assessment of the company-designated
of the Labor Code and Rule XI, Section 2 of physician prevails.188
the Amended Rules on Employees
Compensation. If he falls to do so and the Q: Is the death of a seafarer compensable?
seafarer's medical condition remains A: GENERAL RULE: Under the POEA-SEC, an
unresolved, the latter shall be deemed totally employer is generally liable for death
and permanently disabled. compensation benefits when a seafarer dies
during the term of employment.
BUT, the parties, however, are free to disregard EXCEPTION: Part II, Section C (6) of the
the findings of the company doctor, as well as POEA-SEC exempts the employer from liability
the chosen doctor of the seafarer, in case they if it can successfully prove that the seafarer’s
cannot agree on the disability gradings issued death was caused by an injury directly
and jointly seek the opinion of a third-party attributable to his deliberate or willful act.
doctor. The duty to secure the opinion of a ● No compensation shall be payable in
third doctor belongs to the employee asking respect of any injury, incapacity,
for disability benefits - the obligation to disability or death resulting from a
comply with the requirement of securing the willful act on his own life by the
opinion of a neutral, third-party physician seaman, provided, however, that the
rested on his/her shoulders.186 The rules do employer can prove that s incapacity,
not state a specific period within which the
See Sunit v. OSM Maritime Services.

187
185
See Maersk Filipinas Crewing v. Ramos. See
188
TSM Shipping Phils v.
186
See Magsaysay Mitsui v. Buenaventura. Daivipskibsslelsakabet.
/
disability or death is directly
attributable to him.
ENFORCEMENT MECHANISM (FOR WAGES

AND OTHER BENEFITS)
The burden rests on the employer to prove by
substantial evidence that the death was
directly attributable to his deliberate or willful Arts. 128-129 and 306-307, Labor Code
act. Evidence of insanity or mental sickness ARTICLE 128. Visitorial and Enforcement
may be presented to negate the requirement Power. — (a) The Secretary of Labor and
of willfulness as a matter of counter-defense. Employment or his duly authorized
But the burden of evidence is then shifted to representatives, including labor regulation
the claimant to prove that the seafarer was of officers, shall have access to employer's
unsound mind.189 records and premises at any time of the day or
● In order for insanity to prosper as a night whenever work is being undertaken
counter-defense, the claimant must therein, and the right to copy therefrom, to
question any employee and investigate any fact,
substantially prove that the seafarer
condition or matter which may be necessary to
suffered from complete deprivation of determine violations or which may aid in the
intelligence in committing the act or enforcement of this Code and of any labor law,
complete absence of the power to wage order or rules and regulations issued
discern the consequences of his pursuant thereto.
action. Mere abnormality of the mental
faculties does not foreclose (b) Notwithstanding the provisions of Articles
willfulness. 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. The Secretary or his duly
authorized representatives shall issue writs of
execution to the appropriate authority for the
enforcement of their orders, except in cases
where the employer contests the findings of the

labor employment and enforcement officer and
raises issues supported by documentary proofs
which were not considered in the course of
inspection.

An order issued by the duly authorized
representative of the Secretary of Labor and
Employment under this Article may be appealed
to the latter. In case said order involves a
monetary award, an appeal by the employer

may be perfected only upon the posting of a

cash or surety bond issued by a reputable
bonding company duly accredited by the
Secretary of Labor and Employment in the
amount equivalent to the monetary award in the
order appealed from.

(c) The Secretary of Labor and Employment
may likewise order stoppage of work or
suspension of operations of any unit or
See Seapower Shipping Ent. Inc, v. Heirs of
189 department of an establishment when
Warren Sabanal. non-compliance with the law or implementing
/
rules and regulations poses grave and imminent on behalf of any employee or househelper
danger to the health and safety of workers in pursuant to this Article shall be held in a special
the workplace. Within twenty-four hours, a deposit account, and shall be paid, on order of
hearing shall be conducted to determine the Secretary of Labor and Employment or the
whether an order for the stoppage of work or Regional Director directly to the employee or
suspension of operations shall be lifted or not. househelper concerned. Any such sum not paid
In case the violation is attributable to the fault to the employee or househelper, because he
of the employer, he shall pay the employees cannot be located after diligent and reasonable
concerned their salaries or wages during the effort to locate him within a period of three (3)
period of such stoppage of work or suspension years, shall be held as a special fund of the
of operation. Department of Labor and Employment to be
used exclusively for the amelioration and
(d) It shall be unlawful for any person or entity benefit of workers.
to obstruct, impede, delay or otherwise render
ineffective the orders of the Secretary of Labor Any decision or resolution of the Regional
and Employment or his duly authorized Director or hearing officer pursuant to this
representatives issued pursuant to the authority provision may be appealed on the same
granted under this Article, and no inferior court grounds provided in Article 223 91 of this Code,
or entity shall issue temporary or permanent within five (5) calendar days from receipt of a
injunction or restraining order or otherwise copy of said decision or resolution, to the
assume jurisdiction over any case involving the National Labor Relations Commission which
enforcement orders issued in accordance with shall resolve the appeal within ten (10) calendar
this Article. days from the submission of the last pleading
required or allowed under its rules.
(e) Any government employee found guilty of
violation of, or abuse of authority, under this The Secretary of Labor and Employment or his
Article shall, after appropriate administrative duly authorized representative may supervise
investigation, be subject to summary dismissal the payment of unpaid wages and other
from the service. monetary claims and benefits, including legal
interest, found owing to any employee or house
(f) The Secretary of Labor and Employment helper under this Code.
may, by appropriate regulations, require

employers to keep and maintain such
employment records as may be necessary in ART. 306. Money Claims. — All money claims
aid of his visitorial and enforcement powers arising from employer-employee relations
under this Code. accruing during the effectivity of this Code shall
be filed within three (3) years from the time the
cause of action accrued; otherwise they shall be
ARTICLE 129. Recovery of Wages, Simple forever barred.
Money Claims and Other Benefits. — Upon
complaint of any interested party, the Regional All money claims accruing prior to the effectivity
Director of the Department of Labor and of this Code shall be filed with the appropriate
Employment or any of the duly authorized entities established under this Code within one
hearing officers of the Department is (1) year from the date of effectivity, and shall be
empowered, through summary proceeding and processed or determined in accordance with the
after due notice, to hear and decide any matter implementing rules and regulations of the Code;
involving the recovery of wages and other otherwise, they shall be forever barred.
monetary claims and benefits, including legal
interest, owing to an employee or person Workmen's compensation claims accruing prior
employed in domestic or household service or to the effectivity of this Code and during the
househelper under this Code, arising from period from November 1, 1974 up to December
employer employee relations: Provided, That 31, 1974, shall be filed with the appropriate
such complaint does not include a claim for regional offices of the Department of Labor not
reinstatement: Provided, further, That the later than March 31, 1975; otherwise, they shall
aggregate money claims of each employee or forever be barred. The claims shall be
househelper do not exceed five thousand pesos processed and adjudicated in accordance with
(P5,000.00). The Regional Director or hearing the law and rules at the time their causes of
officer shall decide or resolve the complaint action accrued.
within thirty (30) calendar days from the date of

the filing of the same. Any sum thus recovered

/
ART. 307. Institution of Money Claims. — Money Q: What is the scope of
claims specified in the immediately preceding visitorial-enforcement power?
Article shall be filed before the appropriate A: Thevisitorial and investigatory power under
entity independently of the criminal action that Article 128 (a) is broad enough to cover any
may be instituted in the proper courts. fact, condition or matter related to the
enforcement not only of the Labor Code but of
Pending the final determination of the merits of any labor law.
money claims filed with the appropriate entity,
no civil action arising from the same cause of The Secretary of Labor and Employment and
action shall be filed with any court. This
his duly authorized representative, in the.
provision shall not apply to employees'
compensation cases which shall be processed exercise of their visitorial and enforcement
and determined strictly in accordance with the powers, are now authorized to issue
pertinent provisions of this Code. compliance orders to give effect to the labor
standards provision of this Code and other
labor legislation based on the findings of labor
Q: Labor laws are enforced and administered employment and enforcement officers or
largely through DOLE’s regional office. How is industrial safety engineers made in the course
this administrative authority exercised? of inspection. This power is unrestricted by
A: To carry out these responsibilities, the the jurisdictional amount of P5,000 provided
Department is authorized to operate and under Article 129 and Article 217 [now 224] of
maintain regional offices (including district the Code.
offices and provincial extension units) in each
of the country's administrative regions. These Q: Who determines the existence of the
·offices serve as the operational arms - the employer-employee relationship?
front line action offices - of the Department. A: In the first Bombo Radyo case, it was
declared that the employer-employee
At the regional level, 5 regional offices enforce relationship is "a matter fraught with
the labor laws, namely: questions of fact and law, which is best
(1) The DOLE regional office (headed by a resolved by th-e quasi-judicial body, which is
regional director, including 5 divisions: the NLRC, rather than an administrative
administrative, labor standards official of the executive branch." The existence
enforcement, industrial relations of an employer-employee relationship is a
division, workers amelioration and matter which is not easiLy determinable from
welfare, and employment promotion); an ordinary inspection, necessarily so,
(2) TESDA; because the elements of such relationship are
(3) Regional Arbitration Branch of the not verifiable from a mere ocular inspection.
NLRC (which handles compulsory The e regional director ( definitely a higher
arbitration cases affecting labor and official than a labor inspector) is "not the right
management, aside from enforcing person to judge the existence of
decisions, awards, or orders of the employer-employee relationship' because it
NLRC); often becomes a "battle of evidence.”
(4) National Conciliation and Medication
Board (NCMB) (which has absorbed the Justice Brion, a former labor secretary,
conciliation, mediation, and voluntary registered a strong dissent. This dissent,
arbitration functions of the Bureau of some three years later, has become the
Labor Relations); and majority view.
(5) RTWPB (or, Wage Board).
The Court revisited the Bombo Radyo ruling of
In addition, special labor-related laws are 2009 and modified it in March 2012 through
administered or enforced by the concerned an en banc resolution. The Court now
agencies such as the SSS, GSIS, or PhilHealth concedes that DOLE has the authority to
regional offices. determine the existence of an

/
employer-employee relationship, "subject to and other legislation. An enforcement order is
judicial review, not review by NLRC."190 normally based on the findings of labor
● No limitation in the law was placed regulation officers or industrial safety
upon the power of the DOLE to. engineers made in the course of inspection.
determine the existence of an The director may also issue writs of execution
employer-employee relationship. No to the appropriate authority for the·
procedure was laid down where the enforcement of his orders in line with the
DOLE would only make preliminary provisions of Article 128 in relation to Articles
finding, that the power was primarily 289 and 290 of the Labor Code.
held by the NLRC. The law did not say
that the DOLE would first seek the However, in those cases where the employer
NLR.C's determination of the existence contests the findings of the labor standards
of an employer-employee relationship, and welfare officers and raises issues.which
or that should the existence of the cannot be resolved without considering
employer-employee relationship be evidentiary matters that are not verifiable in
disputed, the DOLE would refer the the normal course of inspection, the regional
matter to the NLRC. The DOLE must director must endorse the case to the
have the power. to determine whether appropriate arbitration branch (labor-arbiter)
or not an employer-employee of the NLRC for adjudication.
relationship exists, and from there to
decide whether or not to issue Q: How are labor standards cases disposed?
compliance orders in accordance with A: A labor standard case is processed
Art. 128(b) of The Labor Code, as administratively under Articles 128 and 129 of
amended by R.A. 7730 the Labor Code, as amended.
● It must also be remembered that the
power of the DOLE to determine the Under the present rules, a Regional Director
existence of an employer-employee exercises both visitorial and enforcement
relationship need not necessarily power over labor standard cases, and is,
result in an affirmative finding. The therefore, empowered to adjudicate money
DOLE may well make the claims, provided there exists an
determination that no employer-employee relationship, and the
employer-employee relationship exists, findings of the regional office are not
thus divesting itself of jurisdiction over contested by the employer concerned.
the case. It must not be precluded
from being able to reach its own First, inspection report.
conclusions, not by the parties, and ● Where [a reported violation of labor
certainly not by this Court. standards] is assigned to Labor Law
Compliance Officer for inspection, the
Q: When can a Regional Director exercise latter shall conduct the necessary
enforcement power? investigation and submit a report
A: For the Regional Director to exercise the thereto to the Regional Director;
enforcement power under Article 128 (b), the through the Chief of the Labor
work relationship between the complaining Standards Enforcement Division
workers and the alleged employer must be (LSED), within 24 hours after the
existing at the time the complaint (formal or investigation or within a reasonable
informal) is presented. period as may be determined by the
Regional Director.
The regional director, in cases where
employer-employee relationship still exists, A complaint inspection shall not be limited to
has the power to order and administer, after the specific allegations or violations raised by
due notice and hearing, compliance with the the complainants/workers but shall be a
labor standards provisions of the Labor Code thorough inquiry into and verification of the
compliance by employer with existing labor
standards and shall cover all workers similarly
See People Broadcasting v. Secretary (2009); See
190
situated.
also People Broadcasting v. Secretary (2012).
/
Second, restitution or compromise agreement.
● Where the employer has agreed to Q: What is the money claims adjudication
make the necessary restitution of under Article 129?
violations discovered in the course of A: Article 129 treats of small money claims.
inspection, such restitution may be Under the provisions of Article 129, the
effected at the plant-level within five Regional Director is empowered, through
calendar days from receipt of the summary proceedings and after due notice, to
inspection results by the employer or hear and decide cases involving recovery of
his authorized representative. wages and other monetary claims and
● Should the parties arrive at an benefits, including legal interest, provided the
agreement as to the whole or part of following requisites are present191:
the dispute, said agreement shall be 1. the claim is presented by an employee,
reduced in writing and signed by the or a person employed in domestic or
parties in the presence of the Regional household service, or househelper;
Director or his duly authorized 2. the claim arises from
representative. employer-employee relations;
3. the claimant does not seek
Note: A settlement that provides for an reinstatement; and
amount of money far below the sum legally 4. the aggregate money claim of each
due violates public policy. claimant does not exceed P5,000.

Third, hearing. In the absence of any of the above requisites,
● Where no proof of compliance is the Labor Arbiter shall have exclusive original
submitted .by the employer after seven jurisdiction over claims arising from employer
calendar days from receipt of the employee relations (except claims for
inspection results, the Regional employees' compensation, social security,
Director shall summon the employer medicare and maternity benefit), pursuant to
and the complainants to a summary Article 224 of the Labor Code.
investigation.
Note: The article does not require that the
The Secretary of Labor to suspend the complainant be an employee at the time the
operations of an establishment whose complaint is filed, It is enough that the claim
non-compliance with law or regulations poses arises from employment.
grave and imminent danger to workers.
Enforcement orders under this Article are Q: How are Article 128 and 129 different?
beyond injunctive power of an inferior court. A: The two articles are similar as they both
involve labor law administration and
Q: Are orders from the Regional Director enforcement. But they differ in:
appealable?
Article 128 Article 129
A: Yes. It is appealable to the DOLE Secretary,
the administrative superior of the regional Nature Inspection of Adjudication,
director. The decision of the Secretary and establishment through
becomes final and executory after 10 calendar subject s and the summary
days from receipt of the records of the case.
A. motion for reconsideration of the
secretary's decision as to be filed as a 191
Note, the technicalities of law and procedure
precondition for any further or subsequent
and the rules governing admissibility and
remedy. sufficiency of evidence in the courts of law shall
not strictly apply thereto. The Regional Office may,
The appeal may be perfected only upon the however, avail itself of all reasonable means to
posting of a cash or surety bond equivalent to ascertain the facts of the controversy speedily and
the monetary award. The rule does not allow objectively, including ocular inspection and
the DOLE Secretary, unlike the rules of the examination of well-informed persons. Substantial
NLRC, to entertain a motion to reduce the evidence, whenever necessary, shall be sufficient
amount of the bond. to support a decision·or order.

/
of issuance of proceedings his duly Department of
proceedi orders to after notice authorized Labor and
ngs compel and hearing, representative Employment.
compliance of employees' who may or
with labor claim for may not be a
standards, wages and regional
wage orders benefits. director.
and other labor
laws and Appeal Appeal to the Appeal to the
regulations. Secretary of NLRC.
Labor.
Enforcement Limits the
of labor proceedings Note: Articles 128 and 129 are operative only
legislation in to monetary in the context of employment relationship. A
general. claims which regular court, not DOLE or NLRC, has
involve only jurisdiction over claim of an independent
labor contractor to adjust contractual fee.
standards
laws. In Arriola v. Pilipino Star, the Court held that,
Article 291 covers claims for overtime pay,
Offshoots of Initiated by holiday pay, service incentive leave pay,
inspections sworn bonuses, salary differentials, and illegal
done by labor complaints deductions by an employer. It also covers
officers or filed by any money claims arising from seafarer contracts.
safety interested Article 291 of the Labor Code states that all
engineers. party. money claims arising from
employer-employee relationship shall be filed
within three (3) years from the time the cause
Workers Involves Applies to
of action accrued; otherwise, they shall be
involved employees still present or
forever barred. The provision, however, does
in the service. past
not cover "money claims"consequent to an
employees at
illegal dismissal such as backwages. It also
the time the
does not cover claims for damages due to
complaint is
illegal dismissal.
filed, provided

there is no
These claims are governed by Article 1146 of
demand for
the Civil Code of the Philippines, which
reinstatement.
provides:
Jurisdicti The law fixes The amount of Art. 1146. The following actions must be
onal no maximum money claim instituted within four years: (1) Upon injury to
limits monetary per claimant the rights of the plaintiff.
amount for the should not
exercise of exceed P5,000 Although illegal dismissal is a violation of the
enforcement Labor Code, it is not the "offense"
power. contemplated in Article 290. Article 290 refers
to illegal acts penalized under the Labor Code,
Officers The person Article 129 is including committing any of the prohibited
designat exercising the vested upon a activities during strikes or lockouts, unfair
ed visitorial-enfor regional labor practices, and illegal recruitment
cement power director or any activities. The three-year prescriptive period
under Article duly under Article 290, therefore, does not apply to
128 is the authorized complaints for illegal dismissal. Instead, "by
Secretary of hearing officer way of supplement," Article 1146 of the Civil
Labor or any of of the Code of the Philippines governs complaints
/
for illegal dismissal. Under Article 1146, an to pay its monetary equivalent after demand
action based upon an injury to the rights of a of commutation or upon termination of the
plaintiff must be filed within four years. employee's services, as the case may be.

When one is arbitrarily and unjustly deprived In Auto BusTransport Systems v. Bautista, the
of his job or means of livelihood, the action employee had not made use of his service
instituted to contest the legality of one's incentive leave nor demanded for its
dismissal from employment constitutes, in commutation until his employment was
essence, an action predicated "upon an injury terminated by employer. Neither did employer
to the rights of the plaintiff," as contemplated compensate his accumulated service
under Art. 1146 of the New Civil Code, which incentive leave pay at the time of his
must be brought within 4 years. dismissal. It was only upon his filing of a
complaint for illegal dismissal, one month
Q: Is the three year prescriptive provided from the time of his dismissal, that employee
under Art. 291 of the Labor Code applicable demanded from his former employer
to an employee’s claim of service incentive commutation of his accumulated leave
leave pay? credits. His cause of action to claim the
A: No. It is essential at this point, however, to payment of his accumulated service incentive
recognize that the service incentive leave is a leave thus accrued from the time when his
curious animal in relation to other benefits employer dismissed him and failed to pay his
granted by the law to every employee. In the accumulated leave credits. Since employee
case of service incentive leave, the employee had filed his money claim after only one
may choose to either use his leave credits or month from the time of his dismissal,
commute it to its monetary equivalent if not necessarily, his money claim was filed within
exhausted at the end of the year. Furthermore, the prescriptive period provided for by Article
if the employee entitled to service incentive 291 of the Labor Code.
leave does not use or commute the same, he
is entitled upon his resignation or separation Q: Where does the doctrine of piercing the
from work to the commutation of his accrued corporate veil apply?
service incentive leave. A: [T]he doctrine of piercing the corporate veil
is held to apply only in three (3) basic areas,
It can be conscientiously deduced that the namely:
cause of action of an entitled employee to (1) defeat of public convenience as when the
claim his service incentive leave pay accrues corporate fiction is used as a vehicle for the
from the moment the employer refuses to evasion of an existing obligation;
remunerate its monetary equivalent if the (2) fraud cases or when the corporate entity is
employee did not make use of said leave used to justify a wrong, protect fraud, or defend
credits but instead chose to avail of its a crime; or
commutation. Accordingly, if the employee (3) alter ego cases, where a corporation is
wishes to accumulate his leave credits and merely a farce since it is a mere alter ego or
opts for its commutation upon his resignation business conduit of a person, or where the
or separation from employment, his cause of corporation is so organized and controlled and
action to claim the whole amount of his its affairs are so conducted as to make it
accumulated service incentive leave shall merely an instrumentality, agency, conduit or
arise when the employer fails to pay such adjunct of another corporation.
amount at the time of his resignation or
separation from employment. In the absence of malice, bad faith, or a
specific provision of law making a corporate
Applying Article 291 of the Labor Code in light officer liable, such corporate officer cannot be
of this peculiarity of the service incentive made personally liable for corporate liabilities.
leave, the three (3)-year prescriptive period The conferment of liability on officers for a
commences, not at the end of the year when corporation's obligations to labor is held to be
the employee becomes entitled to the an exception to the general doctrine of
commutation of his service incentive leave, separate personality of a corporation.
but from the time when the employer refuses
/
It also bears emphasis that in cases where dissolving the original obligor company in an
personal liability attaches, not even all officers obvious “scheme to avoid liability” which
are made accountable. Rather, only the jurisprudence has always looked upon with a
"responsible officer," i.e., the person directly suspicious eye in order to protect the rights of
responsible for and who "acted in bad faith" in labor. Then, it is also clearly reflected in the
committing the illegal dismissal or any act records that it was Guillermo himself, as
violative of the Labor Code, is held solidarily President and General Manager of the
liable, in cases wherein the corporate veil is company, who received the summons to the
pierced. In the absence of a clearly identifiable case, and who also subsequently and without
officer(s) directly responsible for the legal justifiable cause refused to receive all notices
infraction, the Court considers the president and orders of the Labor Arbiter that followed.
of the corporation as such officer. Finally, the records likewise bear that
Guillermo dissolved Royal Class Venture and
Q: Do the twin doctrines of piercing the veil of helped incorporate a new firm, located in the
corporate fiction and personal liability in same address as the former, wherein he is
labor cases apply? again a stockholder. The foregoing clearly
A: Yes. The veil of corporate fiction can be indicate a pattern or scheme to avoid the
pierced, and responsible corporate directors obligations to Uson and frustrate the
and officers or even a separate but related execution of the judgment award, which this
corporation, may be impleaded and held Court, in the interest of justice, will not
answerable solidarily in a labor case, even countenance.
after final judgment and on execution, so long
as it is established that such persons have
deliberately used the corporate vehicle to
unjustly evade the judgment obligation, or
have resorted to fraud, bad faith or malice in
doing so. When the shield of a separate
corporate identity is used to commit
wrongdoing and opprobriously elude

responsibility, the courts and the legal
authorities in a labor case have not hesitated
to step in and shatter the said shield and deny
the usual protections to the offending party,
even after final judgment. The key element is
the presence of fraud, malice or bad faith. Bad
faith, in this instance, does not connote bad
judgment or negligence but imports a
dishonest purpose or some moral obliquity
and conscious doing of wrong; it means
breach of a known duty through some motive
or interest or ill will; it partakes of the nature
of fraud.

[T]here is no hard and fast rule on when

corporate fiction may be disregarded; instead,
each case must be evaluated according to its
peculiar circumstances.

In Guillermo v. Uson, the records of the
present case bear allegations and evidence
that Guillermo, the officer being held liable, is
the person responsible in the actual running HEALTH, SAFETY, AND SOCIAL WELFARE
of the company and for the malicious and BENEFITS
illegal dismissal of the complainant; he,
likewise, was shown to have a role in
/
MEDICAL, DENTAL, AND OCCUPATIONAL physician and dentist may be engaged on
SAFETY retained basis, subject to such regulations as
the Secretary of Labor and Employment may
prescribe to insure immediate availability of
Arts. 162-171, Labor Code medical and dental treatment and attendance in
ARTICLE 162. First-Aid Treatment. — Every case of emergency.
employer shall keep in his establishment such
first-aid medicines and equipment as the nature
and conditions of work may require, in ARTICLE 164. When Emergency Hospital Not
accordance with such regulations as the Required. — The requirement for an emergency
Department of Labor and Employment shall hospital or dental clinic shall not be applicable
prescribe. in case there is a hospital or dental clinic which
is accessible from the employer's establishment
The employer shall take steps for the training of and he makes arrangement for the reservation
a sufficient number of employees in first-aid therein of the necessary beds and dental
treatment. facilities for the use of his employees.

ARTICLE 163. Emergency Medical and Dental ARTICLE 165. Health Program. — The physician
Services. — It shall be the duty of every engaged by an employer shall, in addition to his
employer to furnish his employees in any duties under this Chapter, develop and
locality with free medical and dental attendance implement a comprehensive occupational
and facilities consisting of: health program for the benefit of the employees
of his employer.
(a) The services of a full-time registered nurse
when the number of employees exceeds 50 but
not more than 200 except when the employer ARTICLE 166. Qualifications of Health
does not maintain hazardous workplaces, in Personnel. — The physicians, dentists and
which case, the services of a graduate first-aider nurses employed by employers pursuant to this
shall be provided for the protection of workers, Chapter shall have the necessary training in
where no registered nurse is available. The industrial medicine and occupational safety and
Secretary of Labor and Employment shall health. The Secretary of Labor and Employment,
provide by appropriate regulations the services in consultation with industrial, medical, and
that shall be required where the number of occupational safety and health associations,
employees does not exceed 50 and shall shall establish the qualifications, criteria and
determine by appropriate order, hazardous conditions of employment of such health
workplaces for purposes of this Article; personnel.

(b) The services of a full-time registered nurse, a
part-time physician and dentist, and an ARTICLE 167. Assistance of Employer. — It shall
be the duty of any employer to provide all the
emergency clinic, when the number of
necessary assistance to ensure the adequate
employees exceeds 200 but not more than 300;
and immediate medical and dental attendance
and
and treatment to an injured or sick employee in

case of emergency..
(c) The services of a full-time physician, dentist
and a full-time registered nurse as well as a
dental clinic and an infirmary or emergency
ARTICLE 168. Safety and Health Standards. —
hospital with one bed capacity for every 100
The Secretary of Labor and Employment shall,
employees when the number of employees
by appropriate orders, set and enforce
exceeds 300.
mandatory occupational safety and health

standards to eliminate or reduce occupational
In cases of hazardous workplaces, no employer
safety and health hazards in all workplaces and
shall engage the services of a physician or a
institute new, and update existing, programs to
dentist who cannot stay in the premises of the
ensure safe and healthful working conditions in
establishment for at least two (2) hours, in the
all places of employment.
case of those engaged on part-time basis, and
not less than eight (8) hours, in the case of
those employed on full-time basis. Where the
undertaking is non-hazardous in nature, the
/
ARTICLE 169. Research. — It shall be the services of a dentist or· physician.
responsibility of the Department of Labor and Nowhere does the law provide that the
Employment to conduct continuing studies and physician or dentist so engaged
research to develop innovative methods, thereby becomes a regular employee.
techniques and approaches for dealing with The phrase "on retained basis" negates
occupational safety and health problems; to the idea that this engagement
discover latent diseases by establishing causal necessarily gives rise to an
connections between diseases and work in employer-employee relationship.
environmental conditions; and to develop
medical criteria which will assure insofar as
Note: Where the employer is not required to
practicable that no employee will suffer
impairment or diminution in health, functional put up an emergency hospital, the existing
capacity, or life expectancy as a result of his hospital to be utilized should be within five
work and working conditions. kilometers from the workplace or is
accessible within 25-minute travel. The

employer must provide the transport in
ARTICLE 170. Training Programs . — The emergency cases.
Department of Labor and Employment shall
develop and implement training programs to Further, the employer is required to observe
increase the number and competence of safety standards and provide safety devices.
personnel in the field of occupational safety and
On the part of the employee, the Implementing
industrial health.
Rules require proper use of these safeguards
and devices.
ARTICLE 171. Administration of Safety and
Health Laws. — (a) The Department of Labor
shall be solely responsible for the
EMPLOYEES COMPENSATION AND STATE
administration and enforcement of occupational
safety and health laws, regulations and INSURANCE FUND
standards in all establishments and workplaces
wherever they may be located; however, Arts. 172-178, Labor Code
chartered cities may be allowed to conduct
industrial safety inspections of establishments ARTICLE 172. Policy. — The State shall promote
within their respective jurisdictions where they and develop a tax-exempt employees'
have adequate facilities and competent compensation program whereby employees and
personnel for the purpose as determined by the their dependents, in the event of
Department of Labor and subject to national work-connected disability or death, may
standards established by the latter. promptly secure adequate income benefit and
medical related benefits.
(b) The Secretary of Labor may, through
appropriate regulations, collect reasonable fees
for the inspection of steam boilers, pressure ARTICLE 173. Definition of Terms. — As used in
vessels and pipings and electrical installations, this Title, unless the context indicates
the test and approval for safe use of materials, otherwise:
equipment and other safety devices and the (a) "Code" means the Labor Code of the
approval of plans for such materials, equipment Philippines instituted under Presidential Decree
and devices. The fee so collected shall be Numbered Four Hundred Forty-Two, as
deposited in the national treasury to the credit amended.
of the occupational safety and health fund and (b) "Commission" means the Employees'
shall be expended exclusively or the Compensation Commission created under this
administration and enforcement of safety and Title.
other labor laws administered by the (c) "SSS" means the Social Security System
Department of Labor. created under Republic Act Numbered Eleven
Hundred Sixty-One, as amended.
(d) "GSIS" means the Government Service
PHYSICIAN OR DENTIST NOT NECESSARILY Insurance System created under
EMPLOYEES Commonwealth Act Numbered One Hundred
● Article 163 clearly allows employers in Eighty-Six, as amended.
non-hazardous establishments to (e) "System" means the SSS or GSIS, as the case
engage "on retained basis" the may be.
/
(f) "Employer" means any person, natural or (p) "Income benefit" means all payments made
juridical, employing the services of the under this Title to the employee or his
employee. dependents.
(g) "Employee" means any person compulsorily (q) "Medical benefit" means all payments made
covered by the GSIS under Commonwealth Act under this Title to the providers of medical care,
Numbered One Hundred Eighty-Six, as amended, rehabilitation services and hospital care.
including the members of the Armed Forces of (r) "Related benefit" means all payments made
the Philippines, and any person employed as under this Title for appliances and supplies.
casual, emergency, temporary, substitute or (s) "Appliances" means crutches, artificial aids
contractual, or any person compulsorily covered and other similar devices.
by the SSS under Republic Act Numbered Eleven (t) "Supplies" means medicine and other
Hundred Sixty-One, as amended. medical, dental or surgical items.
(h) "Person" means any individual, partnership, (u) "Hospital" means any medical facility,
firm, association, trust, corporation or legal government or private, authorized by law, an
representative thereof. active member in
(i) "Dependents" means the legitimate, good standing of the Philippine Hospital
legitimated, legally adopted or acknowledged Association and accredited by the Commission.
natural child who is unmarried, not gainfully (v) "Physician" means any doctor of medicine
employed, and not over twenty-one years of age duly licensed to practice in the Philippines, an
or over twenty-one years of age provided he is active member in good standing of the
incapable of self-support due to a physical or Philippine Medical Association and accredited
mental defect which is congenital or acquired by the Commission.
during minority; the legitimate spouse living with (w) "Wages" or "Salary" insofar as they refer to
the employee; and the parents of said employee the computation of benefits, means the monthly
wholly dependent upon him for regular support. remuneration as defined in Republic Act No.
(j) "Beneficiaries" means the dependent spouse 1161, as amended, for SSS and Presidential
until he/she remarries and dependent children, Decree No. 1146, as amended, for GSIS,
who are the primary beneficiaries. In their respectively, except that part in excess of Three
absence, the dependent parents and subject to Thousand Pesos.
the restrictions imposed on dependent children, (x) "Monthly salary credit" means the wage or
the illegitimate children and legitimate salary base for contributions as provided in
descendants, who are the secondary Republic Act Numbered Eleven hundred
beneficiaries: Provided, That the dependent sixty-one, as amended, or the wages or salary.
acknowledged natural child shall be considered (y) "Average monthly salary credit" in the case of
as a primary beneficiary when there are no other the SSS means the result obtained by dividing
dependent children who are qualified and the sum of the monthly salary credits in the
eligible for monthly income benefit. sixty-month period immediately preceding the
(k) "Injury" means any harmful change in the semester of death or permanent disability by
human organism from any accident arising out sixty (60), except where the month of death or
of and in the course of the employment. permanent disability falls within eighteen (18)
(l) "Sickness" means any illness definitely calendar months from the month of coverage, in
accepted as an occupational disease listed by which case it is the result obtained by dividing
the Commission, or any illness caused by the sum of all monthly salary credits paid prior
employment subject to proof that the risk of to the month of the contingency by the total
contracting the same is increased by working number of calendar months of coverage in the
conditions. For this purpose, the Commission is same period.
empowered to determine and approve (z) "Average daily salary credit" in the case of
occupational diseases and work-related the SSS means the result obtained by dividing
illnesses that may be considered compensable the sum of the six (6) highest monthly salary
based on peculiar hazards of employment. credits in the twelve-month period immediately
(m) "Death" means loss of life resulting from preceding the semester of sickness or injury by
injury or sickness. one hundred eighty (180), except where the
(n) "Disability" means loss or impairment of a month of injury falls within twelve (12) calendar
physical or mental function resulting from injury months from the first month of coverage, in
or sickness. which case it is the result obtained by dividing
(o) "Compensation" means all payments made the sum of all monthly salary credits by thirty
under this Title for income benefits and medical (30) times the number of calendar months of
or related benefits. coverage in the period. In the case of the GSIS,
the average daily salary credit shall be the
actual daily salary or wage, or the monthly
/

salary or wage divided by the actual number of
working days of the month of contingency. 120 ARTICLE 177. Registration. — Each employer
(aa) "Quarter" means a period of three (3) and his employees shall register with the
consecutive months ending on the last days of System in accordance with its regulations.
March, June, September and December.

(bb) "Semester" means a period of two
consecutive quarters ending in the quarter of ARTICLE 178. Limitation of Liability. — The
death, permanent disability, injury or sickness. State Insurance Fund shall be liable for
(cc) "Replacement ratio" the sum of twenty compensation to the employee or his
percent and the quotient obtained by dividing dependents, except when the disability or death
three hundred by the sum of three hundred forty was occasioned by the employee's intoxication,
and the average monthly salary credit. willful intention to injure or kill himself or
(dd) "Credited years of service" for a member another, notorious negligence, or otherwise
covered prior to January, 1975, nineteen provided under this Title.
hundred seventy-five minus the calendar year of
coverage, plus the number of calendar years in
which six or more contributions have been paid Q: What is workmen’s compensation?
from January, 1975 up to the calendar year A: It is a general and comprehensive term
containing the semester prior to the applied to those providing compensation for
contingency. For a member covered on or after loss resulting from the injury, disablement, or
January, 1975, the number of calendar years in death of workmen through industrial accident,
which six or more contributions have been paid casualty, or disease.
from the year of coverage up to the calendar
year containing the semester prior to the Compensation, in relation to work-connected
contingency.
injury or disease, means financial assistance
(ee) "Monthly income benefit" means the
amount equivalent to one hundred fifteen and medical benefits that the Government
percent of the sum of: provides to the worker depending on the kind
The average monthly salary credit multiplied by or degree of disability he suffers.
the replacement ratio; and
One and a half percent of the average monthly The.amount of compensation is generally
salary credit for each credited year of service in determined in accordance with a definite
excess of ten years; schedule, based upon the loss of earning
Provided, That the monthly income benefit shall power, the usual provision:; being for the
in no case be less than Two Hundred Fifty payment of a specified amount at regular
Pesos (P250.00).
intervals over a definite period. Provision is
also made, in most instances for the
ARTICLE 174. Compulsory Coverage. — furnishing of medical, surgical, hospital,
Coverage in the State Insurance Fund shall be nursing, and burial services in addition to and
compulsory upon all employers and their independently of the payment of
employees not over sixty (60) years of age; compensation.
Provided, That an employee who is over sixty
(60) years of age and paying contributions to The primary purpose of a workmen's
qualify for the retirement or life insurance compensation act is to provide compensation
benefit administered by the System shall be
for disability or death resulting from
subject to compulsory coverage.
occupational injuries or diseases, or
accidental injury to, or death of, employees;
ARTICLE 175. Foreign Employment. — The the statute is a remedial one enacted primarily
Commission shall ensure adequate coverage of for the benefit of the man who works in the
Filipino employees employed abroad, subject to pursuits subject to its provisions; it is for the
regulations as it may prescribe. benefit of injured employees and not injured
employers.
Q: What are the sources of compensation?
ARTICLE 176. Effective Date of Coverage. — A: The sources are: (1) direct payment; and
Compulsory coverage of the employer during
(2) insurance statutes. The direct payment
the effectivity of this Title shall take effect on
statutes provide for the payment of the
the first day of his operation, and that of the
employee, on the date of his employment. compensation by the employer directly to the
/
employee; while insurance statutes require the and, applying its provisions, has granted or
employer to take out insurance either with an rejected claims.·lt does not infringe the
insurance bureau operated by the state or worker's constitutional rights. The new law
with a private company, or to contribute to a discarded the concepts of presumption of
compensation fund, and if an employee is compensability and aggravation to restore
injured the compensation is paid by the what the law believes is a sensible equilibrium
insurer or from the compensation fund. between the employer's obligation to pay
workmen's compensation and the employees'
As regards source of compensation, the Labor right to receive reparation for work-connected
Code adopts the compensation fund type. All death or·disability.
covered employers are required to remit to a
common fund a monthly contribution The new law establishes a state insurance
equivalent to one percent of the monthly fund built up by the contribution of employers
salary credit of every covered employee. The based·on the salaries of their employees. TheI
employee pays no contribution to the fund; in injured worker does not have to litigate his
in fact, any agreement to collect fund right to compensation. No employer opposes
contribution from the employee is prohibited. There is no notice·of injury nor requirement of
The employers contributions make np the controversion. The sick worker simply files a
State Insurance Fund from which comes the claim with a new neutral Employees'
compensation to be paid to claimant Compensation Commission which then
employee or the employees dependents in determines on the basis of the employee's
case the employee suffers from a supporting papers and medical evidence
work-connected injuries or disease. whether or not compensation may be paid.
The payment of benefits is more prompt. The
Q: What is the process? cost of administration is low. The amount of
A: A compensation claim starts with a death benefits has also been doubled.
work-related injury or disease that befalls an
employee. Within five days, he must notify his On the other hand, the employer's duty is only
employer who, in turn, must enter the notice in to pay the regular monthly premiums to the
a logbook. Within five days after making the scheme. It does not look for insurance
entry, the employer reports (o the SSS (in companies to meet sudden demands for
private sector) or the GSIS (in public sector) compensation payments or set up its own
the. sickness, injury or death that he deems funds to meet those contingencies. It does
work-connected. In effect, therefore, the not have to defend itself from spuriously
employer initially decides whether the injury or documented or long past claims.
sickness is work-related or not.
The new law applies the social security
The claim goes to the System (SSS or GSIS) principle in the handling of workmen's
which decides on the claim. The two Systems compensation. The Commission administers
serve as administering agencies of the and settles claims from and under its
Employees Compensation Commission (ECC) exclusive control. The employer does not
which is the policy-making body. The ECC is intervene in the compensation process and it
also the appeal body. What the System dernes has no control, as in the past, over payment of
may be appealed to the ECC within 30 days. benefits. The open-ended Table of
The ECC decision,, if favorable to the worker, Occupational Diseases requires no proof of
is final and executory; otherwise, it may be causation. A covered claimant suffering from
brought up to the Court of Appeals for review an occupational disease is automatically paid
in very limited cases. The System, if reversed benefits.
by ECC, ordinarily does not appeal to the
Court of Appeals because It is represented in Since there is no employer opposing or
the ECC itself. fighting a claim for compensation, the rules
on presumption of compensability and
Q: Is PD 626 valid? controversion cease to have importance. The
A: In Sarmiento v. ECC, the Court held that it lopsided situation of an employer versus one
has recognized the validity of the present law employee, which called for equalization
/
through the various rules and concepts itself, while, according to what may be
favoring the claimant is now absent. characterized as the more liberal view, an
injury may be regarded as arising out of the
The old law was jettisoned and in its place employment if it results from a risk or danger
now is the employees’ compensation and to which the workman is exposed by reason
state insurance fund in the Labor Code. of being engaged in the performance of his
duties, although such danger is not inherent in
Note: [T]he degree of proof in applying for and has no necessary or essential connection
claims for compensation is merely substantial with the particular employment. It has been
evidence. The claimant must show, at least, by stated that an accident arises out of the
substantial evidence that the development of employment if it ensues from a risk
the injury/illness is brought largely by the reasonably incident to the employment, and if
conditions present in the nature of the job. it is in some sense due to the employment.
What the law requires is a reasonable
work-connection and not a direct causal For injury to be compensable, the standard of
relation. It is enough that the hypothesis on work connection" must be substantially
which the workmen's claim is based is satisfied. The injury and the resulting disability
probable.192 sustained by reason of employment are
compensable regardless of the place where
Q: What gives rise to a compensation claim? the injury occurred, if it can be proven that at
A: What gives rise is either injury or disease. the time of the injury, the employee was acting
But what is compensated is not the injury or within the purview of his or her employment
disease itself but the attendant loss or and performing an act reasonably necessary
impairment of earning capacity. or incidental thereto.193

For the injury and the resulting disability or [T]he right to compensation extends to
death to be compensable, the injury must be disability due to disease supervening upon
the result of an employment accident and proximately and naturally resulting from a
satisfying all of the following grounds: compensable injury. Where the primary injury
(1) The employee must have been injured is shown to have arisen in the course of
at the place where his work requires employment, every natural consequence that
him to be; flows from the injury likewise arises out of the
(2) The employee must have been employment, unless it is the result of an
performing his official functions; and independent intervening cause attributable to
(3) If the injury is sustained elsewhere, the claimant's own negligence or misconduct.
employee must have been executing an Simply stated, all the medical consequences
order for the employer. and sequels that flow from the primary injury
are compensable.194
There is general agreement upon the
proposition that the accident need not have Q: When is an illness compensable?
been actually foreseen or expected; that it is A: For an illness to be compensable, it must
sufficient if after the event it appears to have either be:
had its origin in a risk connected with the (1) An illness definitely accepted as an
employment, and to have flowed from that occupational disease; or
source as a rational consequence. (2) An illness caused by employment
subject to proof by the employee that
There is, however, some division of judicial the risk of contracting the same is
opinion as to the nature and degree of the increased by working conditions.
relation of the injury to the employment. The
more conservative view is that the causative In Menez v. ECC, the Court held rheumatoid
risk or danger must be inherent in or arthritis and pneumonitis as occupational
essentially connected with the employment diseases. In this case, her emotional tension
See Sarmiento v. ECC; See also Clemente v. GSIS;
192 193
See Valeriano v. ECC.
Nazaro v. ECC; Orate v. CA. 194
See Belarmino v. ECC.
/
is heightened by the fact that the high school Q: What are the limitations of the liability?
in which she teaches is situated in a tough A: The employees’ compensation law is
area — Binondo district, which is inhabited by intended to assist innocent victims of
thugs and other criminal elements and further employment accident or work-related illness
aggravated by the heavy pollution and but not self-inflicted or self-courted
congestion therein as well as the stinking contingencies. Cases of this kind are
smell of the dirty Estero de la Reina nearby. excluded from the coverage of the law.
Women, like Menez, are most vulnerable to
such unhealthy conditions. The pitiful Those excluded are:
situation of all public school teachers is (1) Those which result from the
further accentuated by poor diet, for they can intoxication or drunkenness; and
ill-afford nutritious food. (2) Self-inflicted injuries.

These unwholesome conditions are "normal In NFD International Manning v. Illecas,
and consistently present in" or are the although the disability was found not to be
"hazards peculiar to" the occupation of a caused by an accident as it was an injury
public high school teacher. It is therefore sustained from carrying the heavy basketful
evident that rheumatoid arthritis and of fire hydrant caps (it is common knowledge
pneumonitis are the "natural incidents" of the that carrying heavy objects can cause back
occupation as such public high school injury), his disability may still be compensable
teacher. But even if rheumatoid arthritis and under Article 13 of the CBA. The CBA states
pneumonitis are not occupational diseases, that the degree of disability, which the
there is ample proof that she contracted such company is liable to pay, shall be determined
ailments by reason of her occupation as a by a doctor appointed by the company.In such
public high school teacher due to her a case, the medical report issued by the latter
exposure to the adverse working conditions. shall be evaluated by the labor tribunal and
the court based on its inherent merit. In this
Q: Who are the employers and employees case, petitioners never questioned the weight
compulsorily covered by the employee’s given by the Labor Arbiter and the Court of
compensation program? Appeals to the findings of the respondent's
A: The employees' compensation law applies independent doctor in regard to the disability
to all employers, public or private, and to all of respondent.
employees, public or private, including casual,
emergency, temporary or substitute Q: Is a soldier who died in the line of duty
employees. entitled to benefits?
A: Yes. The contention that he was not at his
The employer is covered compulsorily from workplace nor performing his duty as a soldier
the first day of operation and the employee of the Philippine Army at the time of his death
from the first day of employment. has no merit. The concept of a "workplace"
referred to in Ground 1, cannot always be
Every employee is covered who is not over 60 literally applied to a soldier on active duty
years of age, or over 60 if he had been paying status, as if he were a machine operator or a
contributions to the System (GSIS or SSS) worker in an assembly line in a factory or a
prior to age 60 and has not been compulsorily clerk in a particular fixed office. Obviously, a
retired. Also under the ECC rules; the soldier must go where his company is
employer may belong to either the pubμc stationed
sector (covered by GSIS) or the private sector
(covered by SSS). In Hinoguin v. ECC, Sgt. Hinoguin had
permission from their Commanding officer to
Note: Filipinos working abroad for employers go to Aritao. A place which soldiers have
doing business in the Philippines are covered secured lawful permission to be at cannot be
by the employees' compensation law. They very different, legally speaking, from a place
are entitled to the same benefits as for those where they are required to go by their
working in the Philippines. commanding officer. Moreover, he was
performing official functions at the time he
/
sustained the gunshot wound. A soldier on on oficial line of duty, are nonetheless
active duty status is really on 24 hours a day basically police service in character.195
official duty status and is subject to military
discipline and military law 24 hours a day. He Q: Is the injury sustained by an employee on
is subject to call and to the orders of his the way to work resulting in her death
superior officers at all times, 7 days a week, compensable?
except, of course, when he is on vacation A: Yes. In Alano v. ECC, the Court held that it is
leave status (which Sgt. Hinoguin was not). not disputed that the deceased died while
Thus, the work-connected character of Sgt. going to her place of work. She was at the
Hinoguins injury and death is not precluded by place where,her job necessarily required her to
the simple circumstance that he was on an be if she was to reach her place of work on
overnight pass to go to the home of Dft. time. There was nothing private or personal
Alibuyog. about the school principal's being at the place
of the accident. She was there because her
Q: May a moonlighting policeman’s death be employment required her to be there.
considered compensable?
A: No. In GSIS v. CA and Alegre, the Court Q: Are injuries sustained by an employee on
stated that while we agree that policemen, like his way from work compensable?
soldiers, are at the beck and call of public duty A: Yes. In Lazo v. ECC, there is no evidence on
as peace officers and technically on duty record that Lazo deviated from his usual,
round-the-clock, the same does not justify the regular homeward route or that interruptions
grant of compensation benefits for the death occurred in the journey.
of SPO2 Alegre based on the facts disclosed
by the records. While the presumption of compensability and
theory of aggravation under the Workmen's
Looking at the long line of jurisprudence, it Compensation Act may have been abandoned
can be gleaned that the Court did not justify under the Labor Code, the liberality of the law
its grant of death benefits merely on in general in favor of the working man still
account of the rule that soldiers or subsists. As agent charged by the law to
policemen, as the case may be, are virtually implement social justice guaranteed and
working round-the-clock. Note that the secured by the Constitution, the Employees
Court likewise attempted in each case to Compensation Commission should adopt a
find a reasonable nexus between the liberal attitude in favor of the employee in
absence of the deceased from his assigned deciding claims for compensability, especially
place of work and the incident that led to his where there is some basis in the facts for
death. inferring a work connection to the accident.
This kind of interpretation gives meaning and
Obviously, the matter SPO2 Alegre was substance to the compassionate spirit of the
attending to at the time he met his death, that law as embodied in Article 4 of the New Labor
of ferrying passengers for a fee, was Code which states that "all doubts in the
intrinsically private and unofficial in nature implementation and interpretation of the
proceeding as it did from no particular provisions of the Labor Code including its
directive or permission of his superior officer. implementing rules and regulations shall be
resolved in favor of labor." The policy then is
At any rate, the 24-hour duty doctrine, as to extend the applicability of the decree (PD
applied to policemen and soldiers, serves 626) to as many employees who can avail of
more as an after-the-fact validation of their the benefits thereunder. This is in consonance
acts to place them within the scope of the with the avowed policy of the State to give
guidelines rather than a blanket license to maximum aid and protection to labor.
benefit them in all situations that may give
rise to their deaths. In other words, the There is no reason, in principle, why
24-hour duty doctrine should not be employees should not be protected for a
sweepingly applied to all acts and reasonable period of time prior to or after
circumstances causing the death of a police
officer but only to those which, although not 195
See Valeriano v. ECC.
/
working hours and for a reasonable distance ● A third view is that the action is
before reaching or after leaving the employer's selective and the employee or his heirs
premises. have a choice of availing themselves
of the benefits under the WCA or of
Q: What is the difference between claims suing in the regular courts under the
under the Labor Code and the SSS Law? Civil Code for higher damages from
the employer by reason of his
Labor Code SSS Law
negligence. But once the election has
Govern Provide insurance or been exercised, the employee or his
compensability of protection against heirs are no longer free to opt for the
work-related the hazards or risks other remedy. In other words, the
disabilities or when of disability, employee cannot pursue both actions
there is loss of sickness, old age or simultaneously.
income due to death, inter alia,
work-connected or irrespective of This latter view was adopted by the majority in
work-aggravated whether they arose the Floresca case. In so doing, the Court
injury or illness. from or in the rejected the doctrine of exclusivity of the
course of the rights and remedies granted by the WCA as
employment. laid down in the Robles case.

Note: Unlike in the Social Security Law, a
disability is total and permanent under the SOCIAL SECURITY
Labor Code if as a result of the injury or
sickness the employee is unable to perform RA 1161, as amended by RA 8282
any gainful occupation for a continuous
period exceeding 120 days regardless of RA 8291 (GSIS Law)
whether he loses the use of any of his body
parts.196 RA 7699 (Limited Portability Law)

Q: Does the compensation remedy under the RA 7875, as amended by RA 9241 and 10606
Workmen's Compensation Act (now under the (National Health Insurance Act)
Labor Code) for work-connected death or
injuries exclude other remedies under the
Civil Code?
A: No. Citing the case of Floresca v. Philex
Mining Company, involving a complaint for
damages for the death of 5 miners in a
cave-in, the Court was confronted with 3
divergent opinions on the exclusivity rule as
presented by several amici curiae.
● One view is that the injured employee
or his heirs, in case of death, may
initiate an action to recover damages
[not compensation under the
Workmen's Compensation Act] with
the regular courts on the basis of NOTES FROM WEBINAR (From transcript of
negligence of the employer pursuant the webinar by Aleana Bantolo, Jillian Roy,
to the Civil Code. Dory Dulnoan, and Sieg Perez)
● Another view, as enunciated in the
Robles case, is that the remedy of an Social Security System (SSS) Benefits
employee for work-connected injury or By Atty. Kristine Dacuyan Eugenio
accident is exclusive in accordance
with Section 5 of the WCA.
196
See Ortega v. SSC.
/
Employees compensation is granted to an
employee if she encounters sickness, injury at
work or in transit to work. The nexus to
employee benefits is the employment
contract.

Q: Why are non-working spouses given
benefits?
A: This is a recognition of the multiple roles
that a spouse might have at home. They are
not compensated but these contributions to
the family have long been recognized by a
government institution.

The SSS fund is a private fund. It has two
funds: (1) a pool of contribution for SSS
members which the system manages; and (2)
an investment portfolio. Its dividends cover
some of its expenses, the rest it donates to
the national government. The SSS operates as
a GOCC that doesn’t get any funds from the
GAA. All the operating expenses are
self-sustaining.

In other territories, the social welfare systems
even provide for full employment benefits. In
the Philippines, there’s a limited amount of
support that the government gives.

Q: Who are covered?
A: There’s a wide range of people covered by
the System. It covers both formal and informal
sector.

The main purpose is so that in case they don’t
have funds when they get sick or injured. This
is supposed to augment livelihood which was
lost when that member no longer had the
ability to provide for income.

/
A: In terms of long term benefits, this include:
(1) retirement; (2) disability; and (3) death.

Q: What is sickness benefit?
A: This refers to daily cash allowance paid to
a member for the number of days s/he is
unable to work due to sickness or injury.

Q: Should the confinement be at home or
exclusively at the hospital?
A: Either. As a rule, you always rule in favor of
the member.

This is allowed because there is a possibility
Q: What is the contribution rate? that the family does not have money for the
A: 12% of monthly salary credit. If you’re hospital.
employed, employer contributes 8%, 4% is
withheld by the employer in your salary.

Q: What is maternity benefit?
A: This refers to daily cash allowance for a
period of 105 days for normal and caesarian
section delivery and 60 days for miscarriage
or emergency termination of the pregnancy
(under the 105-day Expanded Maternity Leave
Law).

Note: The benefit is from both the SSS and the
employer. They both pay for the benefit. The
beneficiary gets the whole amount of her
compensation.

Q: What are the two programs administered
by SSS?
A: The two programs are: the (1) social
security program; and (2) employee’s
compensation.

Q: What are the benefits provided?
/

The maternity benefit cannot be claimed
concurrently with the sick benefits. The
system will grant to you whichever is more
beneficial.

Q: What is disability benefit?
A: This refers to cash benefit granter either as
a monthly pension or a lump sum amount to a
member who becomes disabled, either
partially or totally.

Q: If you were an employer, would you allow
your employee to extend her leave for 105
days without pay? Are you obliged to grant?
A: Yes. There are penal provisions in the law.

Q: What if the employee wants to report back
to work even before the 105 days expires, will
you allow her to? Why would you allow it?
A: The employer should require her to give
notice because under the law, she is
supposed to be on leave for the whole
duration. A waiver of benefits under the Social
Security Law is not valid, especially if the
waiver is dangerous to her.
Under the SSS guidelines, "semester of
contingency" refers to a period of 2
consecutive quarters ending in the period of
contingency. Quarters are calendar quarters -
ending March, June, September, December.
So, for the April pregnancy, semester of
contingency is January to June (the
contingency is within the 2nd quarter of
April-June). For the September pregnancy,
April-September (the contingency is within the
quarter, July-September).

/

Q: What if the beneficiary has 6 minor
children - 3 from the legal wife and 3 from Q: What is death benefit?
A: This is a cash benefit either in monthly
the paramour? Who will SSS give it to?
pension or lump sum paid to the beneficiaries
A: It will be given according to the order of
birth. The principle being, the youngest ones of a deceased member.

need more support.
It is received by the beneficiaries for life. As
long as the beneficiary is alive, they will
Q: What is retirement benefit?
receive the death benefit.
A: It is cash benefit paid to a member who can
no longer work due to old age; and has
reached the age of 60 (voluntary retirement)
or 65 (compulsory retirement).

The granting of benefits is not governed by
the laws on succession.

Q: Who is a minor?
Q: What happens to the retirement benefit is A: For purposes of SSS, it is 21.
the beneficiary dies?
A: It is converted to death benefits. Q: What if the member designates the
mistress or paramour? Is this a valid
Q: What is funeral benefit? designation?
A: This is a cash benefit given to whoever A: This is contrary to public policy. Allowing
pays the burial expenses of the deceased this circumvents the law. It is only in the
member or pensioner. absence of the three that we look into the
laws on succession.

Q: What is unemployment insurance?
A: This refers to cash benefit equivalent to
50% of the average monthly salary credit for a
maximum of two months.
/

Q: Is the SSS the same as the Social Security
Commission?
A: No. The Social Security Commission is
different from the System.

Under the new law, the Commission can now
condone and not collect penalties for failure
to contribute, where as before, it had to be
through legislative action.

Q: Where will the benefit go if no one is
entitled to it?
A: It goes to the estate of the member. The
SSS does not retain any of the amounts due to
the member.

/
(This is summary table is lifted from the 2018 Ateneo Law Central Bar Operations Labor Reviewer)

/

/

/

/

/

/

- END OF REVIEWER -
-


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Billie Blanco (3E) | Ateneo Law School 2022 | 33

See Metropolitan Bank and Trust Company v.

See Nasipit Lumber Co. v. NWPC.

Billie Blanco (3E) | Ateneo Law School 2022 | 38

Prubankers Association v. Prudential Bank; Bankard See Metropolitan Bank & Trust Company

Employees Union v. NLRC. Employees Union-ALU TUCP v. NLRC.

Billie Blanco (3E) | Ateneo Law School 2022 | 40

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See SHS Perforated Materials v. Diaz; Commando

Billie Blanco (3E) | Ateneo Law School 2022 | 49

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See San Miguel Brewery Sales Force Union v.

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Ninoy Aquino Day August 21

Billie Blanco (3E) | Ateneo Law School 2022 | 67

Billie Blanco (3E) | Ateneo Law School 2022 | 68

See Insular Bank of Asia and America Employees

See San Miguel Corporation v. CA.

See Wellington Investment and Manufacturing

Bus Transport Systems v. Bautista.

Billie Blanco (3E) | Ateneo Law School 2022 | 73

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Billie Blanco (3E) | Ateneo Law School 2022 | 76

Billie Blanco (3E) | Ateneo Law School 2022 | 77

See Star Paper Corp. v. Simbol.

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