Handicapped Workers - 78-81; 4, 5, 7, 32 of RA 7277

Article 78. Definition. Handicapped workers are those whose

earning capacity is impaired by age or physical or mental deficiency
or injury.

Article 79. When employable. Handicapped workers may be employed

when their employment is necessary to prevent curtailment of employment
opportunities and when it does not create unfair competition in labor costs or
impair or lower working standards.

Article 80. Employment agreement. Any employer who employs

handicapped workers shall enter into an employment agreement with them,
which agreement shall include:

The names and addresses of the handicapped workers to be employed;

The rate to be paid the handicapped workers which shall not be less than
seventy five (75%) percent of the applicable legal minimum wage;

The duration of employment period; and

The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the

Secretary of Labor or his duly authorized representative.

Article 81. Eligibility for apprenticeship. Subject to the appropriate

provisions of this Code, handicapped workers may be hired as apprentices or
learners if their handicap is not such as to effectively impede the performance of
job operations in the particular occupations for which they are hired.

RA 7277

Sec. 4

(a). Disabled Persons are those suffering from restriction of different

abilities, as a result of a mental, physical or sensory impairment, to perform an
activity in the manner or within the range considered normal for a human being;

(b). Impairment is any loss, diminution or aberration of psychological,

physiological, or anatomical structure of function;

(c). Disability shall mean (1) a physical or mental impairment that

substantially limits one or more psychological, physiological or anatomical
function of an individual or activities of such individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment;

(d). Handicap refers to a disadvantage for a given individual

resulting from an impairment or a disability, that limits or prevents
the functions or activity, that is considered normal given the age and
sex of the individual;

SECTION 5. Equal Opportunity for Employment : No

disabled persons shall be denied access to opportunities for suitable
employment. A qualified disabled employee shall be subject to the
same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives or
allowances as a qualified able-bodied person. Five percent (5%) of
all casual, emergency and contractual positions in the Department of
Social Welfare and Development; Health; Education, Culture and
Sports; and other government agencies, offices or corporations
engaged in social development shall be reserved for disabled
persons.

SECTION 7. Apprenticeship : Subject to the provision of the

Labor Code as amended, disabled persons shall be eligible as
apprentices or learners; Provided, That their handicap is not 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.

SECTION 32. Discrimination on Employment : No entity, whether public

or private, shall discriminate against a qualified disabled person by reason of
disability in regard to job application procedures, the hiring, promotion, or
discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment. The following constitute acts of
discrimination:

(a). Limiting, segregating or classifying a disabled job applicant in such a

manner that adversely affects his work opportunities;

(b). Using qualification standards, employment tests or other selection

criteria that screen out or tend to screen out a disabled person unless such
standards, tests or other selection criteria are shown to be jobrelated for the
position on question and are consistent with business necessity;
 (c). Utilizing standards, criteria, or methods of administration that:

1). have the effect of discrimination on the basis of disability; or

2). perpetuate the discrimination of others who are subject to common

administrative control;

(d). Providing less compensation, such as salary, wage or other forms of

remuneration and fringe benefits, to a qualified disabled employee, by reason of
his disability, than the amount to which a non-disabled person performing the
same work is entitled;

(e). Favoring a non-disabled employee over a qualified disabled employee

with respect to promotion, training opportunities, study and scholarship grants,
solely on account of the latter’s disability;

(f). Re-assigning or transferring a disabled employee to a job or position

he cannot perform by reason of his disability;

(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; Provided, however, That the employer first sought provide reasonable
accommodations for disabled persons;

(h). Failing to select or administer in the effective manner employment

tests which accurately reflect the skills, aptitude or other factor of the disabled
applicant or employee that such test purports to measure, rather than the
impaired sensory, manual or speaking skills of such applicant or employee, if
any; and

(i). Excluding disabled persons from membership in labor unions or similar

organization.

Bernardo v. NLRC, 310 SCRA 186

Facts:

Petitioners numbering 43 are deaf–mutes who were hired on various periods from 1988
to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters
through a uniformly worded agreement called ‘Employment Contract for Handicapped
Workers. Subsequently, they are dismissed.
Petitioners maintain that they should be considered regular employees, because their
task as money sorters and counters was necessary and desirable to the business of
respondent bank. They further allege that their contracts served merely to preclude the
application of Article 280 and to bar them from becoming regular employees.

Private respondent, on the other hand, submits that petitioners were hired only as
“special workers and should not in any way be considered as part of the regular
complement of the Bank.”[12] Rather, they were “special” workers under Article 80 of
the Labor Code.

Issue: WON petitioners have become regular employees.

Held:

The uniform employment contracts of the petitioners stipulated that they shall be trained
for a period of one month, after which the employer shall determine whether or not they
should be allowed to finish the 6-month term of the contract. Furthermore, the employer
may terminate the contract at any time for a just and reasonable cause. Unless
renewed in writing by the employer, the contract shall automatically expire at the end of
the term.

Respondent bank entered into the aforesaid contract with a total of 56 handicapped
workers and renewed the contracts of 37 of them. In fact, two of them worked from
1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the
hiring of others lead to the conclusion that their tasks were beneficial and necessary to
the bank. More important, these facts show that they were qualified to perform the
responsibilities of their positions. In other words, their disability did not render them
unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled
employee should be given the same terms and conditions of employment as a qualified
able-bodied person. Section 5 of the Magna Carta provides:

“Section 5. Equal Opportunity for Employment.—No disabled person shall be denied

access to opportunities for suitable employment. A qualified disabled employee shall be
subject to the same terms and conditions of employment and the same compensation,
privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied
person.”

The fact that the employees were qualified disabled persons necessarily removes the
employment contracts from the ambit of Article 80. Since the Magna Carta accords
them the rights of qualified able-bodied persons, they are thus covered by Article 280 of
the Labor Code, which provides:
“ART. 280. Regular and Casual Employment. — The provisions of written agreement to
the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or
trade of the employer, x x x”

“The primary standard, therefore, of determining regular employment is the reasonable

connection between the particular activity performed by the employee in relation to the
usual trade or business of the employer. The test is whether the former is usually
necessary or desirable in the usual business or trade of the employer. The connection
can be determined by considering the nature of the work performed and its relation to
the scheme of the particular business or trade in its entirety. Also if the employee has
been performing the job for at least one year, even if the performance is not continuous
and merely intermittent, the law deems repeated and continuing need for its
performance as sufficient evidence of the necessity if not indispensability of that activity
to the business. Hence, the employment is considered regular, but only with respect to
such activity, and while such activity exists.”

Respondent bank entered into the aforesaid contract with a total of 56 handicapped
workers and renewed the contracts of 37 of them. In fact, two of them worked from
1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the
hiring of others lead to the conclusion that their tasks were beneficial and necessary to
the bank. More important, these facts show that they were qualified to perform the
responsibilities of their positions. In other words, their disability did not render them
unqualified or unfit for the tasks assigned to them.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the
business of respondent bank. With the exception of sixteen of them, petitioners
performed these tasks for more than six months.

Petition granted