Section 6

SPECIAL GROUPS OF WORKERS

A. Apprentices and Leaners

 Definition of apprenticeship
 Period and compensation
 Dual Training System
 Illustrative cases
 Jurisdiction in case of violations
 Definition of learnership

B. Handicapped Workers

 Definition
 Labor Code provisions
 Magna Carta
 Illustrative case

C. Child Workers

 Labor Code provisions

 Kasambahay Law provision

D. Kasambahay

 Definition
 Illustrative cases
 Benefits

E. Women

 Special benefits
 Non-discrimination
 Marital status issues
 Pregnancy cases

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 Section 6

NOTES ON
SPECIAL GROUPS OF WORKERS

(LEARNERSHIP,APPRENTICESHIP,
PWD, CHILD WORKERS,
KASAMBAHAYS,WOMEN)

A. Apprentices and Learners

"Apprenticeship " is an employment contract with practical training on the job for
more than three (3) months but not more than six (6) months, supplemented by
related theoretical instruction. Only employers in highly technical industries may
employ apprentices and only in apprenticeable occupations approved by the
TESDA. The minimum age for apprentices is 14 years (Arts. 58-60, Labor Code).

The TESDA Act of 1994 (RA 7796) superseded but did not expressly repeal the Labor
Code provisions. The main effect of the TESDA Act is the transfer of the authority over
apprenticeship programs from the Bureau of Local Employment of the DOLE to the
Technical Education and Skills Development Authority (TESDA).

The TESDA Act did not provide for the period of apprenticeship. The DOLE has
retained the 3-6 months period ( DOLE DO. No. 680-04, S. 2004 as amended by DOLE
Circular No. 2, S.2006). The circular also states that the employer has the option to
employ the apprentice even before the completion of the apprenticeship period.

The minimum age requirement under the Labor Code (14 years) however is in conflict
with another provision of the Labor Code with states that "no child below 15 years of
age shall be employed, except when he works directly under the sole responsibility
of his parents or guardian , and his employment does not in any way interfere with his
schooling" (Art. 139 [a] Labor Code). The age limitation shall also be correlated with the
provision which mandates "no person below 18 years old shall be employed in any
undertaking which is hazardous or deleterious in nature as determined by the
Secretary of DOLE (Art. 139 [b], Labor Code).

In an apprenticeship agreement there is no commitment on the part of the employer

to employ the apprentice after the completion of the training. The employer is allowed to
pay the apprentice with 75% of the minimum wage rate (Art. 61 , Labor Code)

An apprenticeship agreement must be approved by TESDA; otherwise, the

apprentice will be considered a regular employee (Nitto Enterprises vs NLRC, GR No.
114337, 29 September 1995).

An employee hired as "fish cleaner" before the TESDA’s approval of the

apprenticeship program was deemed a regular employee ( Century Canning Corp vs CA,
GR No. 152894, 17 August 2007). If a person has been hired as regular employee, it
would be illegal to subsequently engage them as apprentices (Atlanta Industries Inc vs
Sebolino, GR No. 187320, 26 January 2011).

If a person has been engaged for a certain skill/occupation as apprentice, can he be

again be engaged for a different skill/occupation under another apprenticeship
program? Since the purpose of apprenticeship is not employment ( unlike learnership), I
believe that this is legally tenable. The purpose of the law is not necessarily for the

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apprentice to train for employment, but for him to acquire skills which he may use to ply
his own small business.

Jurisdiction for any violation of the apprenticeship agreement is granted to the DOLE
(Art. 65-67, Labor Code). But a case for illegal dismissal, on the theory that an apprentice
is a regular employee, shall be filed with the Arbitration Branch of the NLRC.

The apprenticeship program is complemented by the Dual Training System Act of

1994 (RA No. 7686).

b) “Dual Training System” refers to an instructional delivery system of

technical and 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 educational
institution/training center and accredited dual system agricultural, industrial
and business establishments with prior notice and advice to the local
government unit concerned.

Apprenticeship and the dual training system both combine practical and theoretical
training. The main difference is that in the dual system theoretical training takes place
in an educational institution or training center, and the practical training takes place in
an establishment

The trainee, by express provision of the law, is not considered an employee ( ibid., Sec.
8). But like the apprentice, he is entitled to a daily allowance of not less than 75% of the
minimum wage rate.

"Learnership" is an employment contract for training in semi-skilled and other

industrial occupations which are non-apprenticeable, not to exceed three (3)
months, with or without related theoretical instructions (Art. 70, Labor Code). The
minimum age for learners is 15 years; those below 18 years old may only be employed
in non-hazardous occupations. The DOLE determines what are hazardous occupations.

In a learnership agreement, there is a commitment on the part of the employer to

employ the leaner as regular employee after the completion of the training. The
employer is allowed to pay the leaner with 75% of the minimum wage rate.

Since there is a commitment to employ the learner, the employer is better off hiring him
as probationary employee since the period of training would be longer ( usually six
months). Avoiding the rigidity of security of tenure is a higher value than paying only
75% of the minimum wage rate.

B. Handicapped workers

"Handicapped " workers are those whose earning capacity is impaired by age or
physical or mental deficiency (Art. 78, Labor Code).

Like apprenticeship and learnership, the contract with handicapped workers must be in
writing and must include the duration of the employment. The salary rate shall not be
less than 75% of the statutory minimum.

The Magna Carta for Disabled Persons provides that "no disable person shall be
denied access to opportunities for suitable employment." and "a qualified disabled
employee shall be subject to the same terms and conditions of employment and the

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same compensation, privileges, benefits, fringe benefits, incentives or allowances as a
qualified able bodied person ( RA No. 7277, Sec. 5).

And subject to the provisions of the Labor Code as amended, disabled persons shall be
eligible as apprentices or learners: Provided, That their handicap is not as much as to
effectively impede the performance of job operations in the particular occupation for
which they are hired; Provided, further, That after the lapse of the period of
apprenticeship, if found satisfactory in the job performance, they shall be eligible for
employment ( ibid., Sec. 7).

In a leading case ,the task of counting and sorting bills ((used to be handled by regular
tellers) was held to be necessary and desirable in bank operations. Thus, the deaf-
mutes hired for these tasks on fixed term basis ( initially , 6 months with 1-month trial
period) and whose services were renewed several times exceeding six (6) months were
deemed regular employees entitled to security of tenure (Bernardo vs NLRC , G.R. No.
122917, 12 July 1999).

Curiously, and without explaining itself, the Supreme Court ruled that those deaf-mute
sorters whose tenure did not reach six (6) months were validly terminated. This is
plainly wrong. If they were hired on probation basis, they have already passed it since
the training period was only one (1) month ( see Servidad vs NLRC, GR No. 128682, 08
March 1999). And even if the probationary period was set at six (6) months, there was
no indication that their services were not renewed because of failure to qualify. Instead,
their fixed term contracts were simply allowed to expire. The non-renewal would
constitute illegal dismissal, because the fixed term contracts cannot stand the judicial
test of the giant banking institution and the deaf-mutes with limited employability having
dealt with each other “on more or less equal terms with no moral dominance whatever
being exercised by the former over the latter" (see Claret School vs Sinday, GR No.
226358, 09 October 2019).

C. Child Workers

No child below 15 years of age shall be employed, except when he works directly
under the sole responsibility of his parents or guardian , and his employment does
not in any way interfere with his schooling (Art. 139 [a] , Labor Code). No person below
18 years old shall be employed in any undertaking which is hazardous or deleterious
in nature as determined by the Secretary of DOLE (Art. 139, [b] , Labor Code).

Note that the Kasambahay Law provides:

Section 4 (d) Domestic worker or "Kasambahay" refers to any person

engaged in domestic work within an employment relationship such as, but
not limited to, the following: general house help, nursemaid or "yaya", cook,
gardener, or laundry person, but shall exclude any person who
performs domestic work only occasionally or sporadically and not on
an occupational basis.

The term shall not include children who are under foster family
arrangement, and are provided access to education and given an
allowance incidental to education, i.e. "baon", transportation, school
projects and school activities.

xxx

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 Section 16. Employment Age of Domestic Workers. – It shall be unlawful
to employ any person below fifteen (15) years of age as a domestic
worker. Employment of working children, as defined under this Act, shall
be subject to the provisions of Section 10(A), paragraph 2 of Section 12-A,
paragraph 4 of Section 12-D, and Section 13 of Republic Act No. 7610, as
amended, otherwise known as the "Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act".

Discrimination against child workers is deemed an unlawful act ( Art. 138, Labor Code).

D. Kasambahay

Section 4 of the Batas Kasambahay defines domestic work as “work performed in or

for a household or households” and domestic worker or "kasambahay"as any person
engaged in domestic work within an employment relationship such as, but not limited to,
the following: general househelp, nursemaid or "yaya", cook, gardener, or laundry
person, but shall exclude any person who performs domestic work only occasionally or
sporadically and not on an occupational basis. The enumeration is not exhaustive but
merely illustrative.

The term household is defined as “immediate members of the family or the occupants
of the house that are directly provided services by the domestic worker . "

The Implementing Rules and Regulations exclude family drivers from the definition,
but this is a debatable proposition since driving for a family is clearly “work performed
for a household".

The Supreme Court however has upheld the DOLE's interpretation (Atienza vs Saluta ,
GR No. 233413, 17 June 2019) "Family drivers" were formerly categorized as domestic
workers under Art. 139 of the Labor Code. By virtue of this ruling, the Supreme Court
declared that family drivers would again be covered by the Civil Code provisions ( Arts.
1689-1694).

The judicial exclusion has negligible practical effect insofar as security of tenure is
concerned. Both the Kasambahay Law and the Civil Code offer no security of tenure.
The employer can dismiss the kasambahay with or without cause anytime, with or
without prior notice, subject only to compensation equivalent to 15 days salary in case
no just cause is involved.

A house helper or domestic servant working within the premises of the business of the
employer and in relation to or in connection with its business, as in its staff houses for
its guest or even for its officers and employees renders such house helper or domestic
servant a as a regular employee of the business enterprise, and not mere family
househelper or domestic servant of a household (Remington Industrial Sales Corp. vs
Castaneda, GR NO.s. 169295-96, 20 November 2006).

The distinction is important because kasambahays, while now entitled to five (5) day
SIL after one (1) year of service as well as mandatory SSS coverage, have very
limited security of tenure.

The law provides that the employer may terminate the contract before the expiration of
the term except for just causes ( basically the same as those under Art. 297 of the
Labor Code) but the remedy is only “compensation already earned plus the
equivalent of fifteen (15) days work by way of indemnity”. This makes kasambahay
employment virtually at will . They could be terminated anytime, subject only to 15 days

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pay. There is no remedy of reinstatement, back wages, or salaries for the unexpired
portion of the contract.

E. Women

By virtue of their sex, female workers are entitled to leaves which are not enjoyed by
male workers. These are:

 Expanded maternity benefits(105-day paid maternity leave benefit for

every live childbirth, regardless of the type of delivery.; 60-day paid leave
in case of a miscarriage or an emergency termination of pregnancy (ETP),
including stillbirth; and additional 15-day paid leave to a female
employee, who qualifies as a solo parent under the Solo Parents’ Welfare
Act).

Marital status is not a qualification, and the old 4-delivery limit has been
abolished. While maternity benefits are paid by the SSS ( but payment is
advanced by the employer) , the difference between the maximum SSS
benefits and the employee’s salary is shouldered by the employer.

 VAWC Leave (Sec. 43, VAWC Law)- Paid leave of absence up to ten (10)
days in addition to other paid leaves under the Labor Code "Victims"
would refer to "any woman who is [the offender's] wife, former wife, or
against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child" ( Section 3,
VAWCI ).The period of extension need not be paid, although the absence
would be authorized (and therefore not subject to disciplinary sanction).

The availment of the ten day-leave shall be at the option of the woman
employee, which shall cover the days that she has to attend to medical
and legal concerns. Leaves not availed of are noncumulative and not
convertible to cash (IRR of VAWCI)

 Gynecological Disorder Leave (Magna Carta For Women)-

“Gynecological disorders” refers to disorders that would require
surgical procedures such as, but not limited to, dilatation and curettage
and those involving female reproductive organs such as the vagina,
cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor,
as certified by a competent physician. As clarified by the IRR, ]
gynecological surgeries shall also include hysterectomy, ovariectomy,
and mastectomy;

A woman employee having rendered continuous aggregate

employment service of at least six (6) months for the last twelve (12)
months shall be entitled to a special leave benefit of two (2) months
with full pay based on her gross monthly compensation “ plus
mandatory allowances” following surgery caused by gynecological
disorders.

Special leave benefit is non-cumulative and non-convertible to cash

unless otherwise provided by a CBA.

The Labor Code penalizes discrimination against women ( Art. 133, Labor Code) ,
when sex is used as the sole basis for different treatment in the terms and conditions of
employment including compensation, promotions, training opportunities and

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scholarship grants. Stipulation against marriage, and discrimination or discharge
from employment due to pregnancy, are also outlawed by the Labor Code ( Arts.
134-135), Labor Code .

A termination motivated by the employee having contacted marriage was been

deemed illegal (PT & T vs NLRC, G.R No. 118978, 23 May 1997).A similar conclusion was
reached when the employees married their co-employees , and the company
imposed the sanction of dismissal provided by the company policy ( Star Paper Corp. vs
Timbol, GR No. 164774, 12 April 2006).This is not exactly a female discrimination case,
since even the male employees benefited from the Supreme Court’s decision. This is a
marital prohibition case. The Supreme Court held that the policy was unreasonable as
the company failed to prove a legitimate business concern that would justify the
discrimination.

A different situation obtained in the case where the employee was suspended
indefinitely for getting pregnant out of wedlock. The company imposed as condition
for reinstatement that she marry her boyfriend. The indefinite suspension was held
tantamount to illegal dismissal, as sex between two consenting adults with no
impediment to marry and the consequent pregnancy were deemed not a disgraceful
and immoral conduct (Capiz-Cadiz vs Bent Hospital and Colleges , GR No. 187417, 24
February 2016). The condition that she marry her boyfriend was held coercive and
oppressive, and violative of the Magna Carta for Women.

The remedy for sectarian institutions with certain religious tenets, as suggested by the
Supreme Court , is to craft an express statement in its manual of personnel prescribing
such religious standard as part of employee good conduct.

The Supreme Court upheld a company policy prohibiting its employees from having a
relationship with employees of competitor companies . The Supreme Court held
that a company has a right to guard its trade secrets, and that the prohibition against
personal or marital relationships with employees of competitor companies is reasonable
. It further reiterated the doctrine that the equal protection clause applies only to the
State , not to private entities (Duncan Association of Detailmen -PTGWO vs Glaxo
WellcomePhil,. Inc. (GR No, 162994, 17 September 2004). The ruling seems too broad and
may result in unreasonable implementation.

The company policy in Glaxo reads:

10. You agree to disclose to management any existing or future relationship

you may have, either by consanguinity or affinity with co-employees or
employees of competing drug companies. Should it pose a possible
conflict of interest in management discretion, you agree to resign
voluntarily from the Company as a matter of Company policy.

The premise of the policy is “possible conflict of interest”, and the implementation of the
policy would appear unreasonable if the position involved is merely clerical and does
not entail access to trade secrets. The position involved in Glaxo was that of medical
representative, which perhaps may require access to sales and marketing strategies.
Nonetheless, the policy still seems too unreasonable unless there is a clear showing of
”conflict of interest” matter of company policy and not a mere “possibility”. If the position
involved is merely clerical, how could such conflict of interest possibly arise?

The Supreme Court in Glaxo did not consider Art. 134 of the Labor Code, which is
quite categorical in its prohibition:

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 Art,. 134 (136Z). Stipulation Against Marriage. Is shall be unlawful for an
employer to require as a condition of employment or continuation of
employment that a woman employee shall not get married , or to stipulate
express or tacitly that upon getting married, a woman employee shall be
deemed resigned or separated, or to actually dismiss , discharge ,
discriminate or otherwise prejudice a woman employee merely by
reason of her marriage.

The reason may be is that the employee involved in Glaxo was a male, not a female.

If it was a female employee who was terminated for marrying an employee of a

competitor company, the company may still argue that the termination was not “merely
by reason of her marriage” but because of conflict-of-interest situation. It is submitted
that sonflict-of-interest situations must be judged on a case-to-case basis.

Does the anti-marital prohibition apply equally to male employees? There is no valid
distinction between male and females on account of marriage, a company policy
prohibiting male employees from marrying under penalty of discharge ( excepting
situations like Glaxo ) would be unreasonable. It can be assailed as illegal for violating
no less than the Constitution, which provides that “marriage , as an inviolable social
institution, is the foundation of the family and shall be protected by the State” ( Art. XV,
Section 2).

Termination brought about by pregnancy issues was invalidated in two leading cases
(Del Monte Philippines vs Velasco , GR No. 153477, 06 March 2007 ; Lakpue Drug vs Belga ,
GR No. 166379, 20 October 2005).

Nonetheless, pregnancy does not give the employee the right to abuse the privilege. In
one case, it was held that in the absence of evidence indicating that any pregnancy-
borne illness outside the period stated in the medical certificate, such illness ought not
to be considered as an acceptable excuse for the employee's excessive absences
without leave. The employee's latest string of absenteeism, taken together with her
long history of absenteeism without permission, was deemed a case of gross and
habitual neglect of duties (Filflex Industrial and Manufacturing Co. vs NLRC, GR No,.
115395, 12 February 1998).