3 classifications for the minimum wage earners
1. Non-Agriculture/Industrial Commercial and
Retail/Service employing more than 10 workers
2. Agriculture
3. Retail/Service employing Not More than 10
workers
Below minimum wage – underpayment
PRESIDENTIAL DECREE No. 851
REQUIRING ALL EMPLOYERS TO PAY THEIR
EMPLOYEES A 13TH MONTH PAY
Section 1. All employers are hereby required to pay
all their employees receiving a basic salary of not
more than P1,000 a month, regardless of nature of
their employment, a 13th-month pay not later than
December 24 of every year.
*nature of employment – regular, casual, probationary
*some employers give half in June, half in December
Section 2. Employers already paying their
employees a 13th-month pay or its equivalent are
not covered by this Decree.
Coverage:
All employers are required to pay their rank and file
employees 13th-month pay, regardless of the
nature of their employment and irrespective of the
methods by which their wages are paid, provided
they worked for at least one (1) month during a
calendar year. The 13th-month pay should be given
to the employees not later than December 24 of
every year.
Employers not covered by PD 951
1. The government and any of its political
subdivisions, including government-owned
and controlled corporation, except those
corporations operating essentially as
private subsidiaries of the government
2. Employers who are already paying their
employees 13th-month pay or more in a
calendar year or its equivalent at the time of
the issuance of PD 851
3. Employers of those who are paid on
purely commission, boundary or task
basis, and those who are paid a fixed
amount for performing specific work,
irrespective of the time consumed in the
performance thereof (except those workers
who are paid on piece-rate basis, in which
case the employer shall grant them 13 th
month pay)
𝑇𝑜𝑡𝑎𝑙 𝑏𝑎𝑠𝑖𝑐 𝑠𝑎𝑙𝑎𝑟𝑦 𝑒𝑎𝑟𝑛𝑒𝑑 𝑑𝑢𝑟𝑖𝑛𝑔 𝑡ℎ𝑒 𝑦𝑒𝑎𝑟
12 𝑚𝑜𝑛𝑡ℎ𝑠
= 𝑃𝑅𝑂𝑃𝑂𝑅𝑇𝐼𝑂𝑁𝐴𝑇𝐸 (13𝑡ℎ 𝑀𝑜𝑛𝑡ℎ 𝑃𝑎𝑦)
EMPLOYER – EMPLOYEE RELATIONSHIP
FOUR-FOLD TEST – basic important test
1. Power to select the employees
2. Power to pay wages
3. Power to dismiss
4. Power to CONTROL (as to the means and
method and not only as to the goal to be
achieved; RIGHT TO CONTROL TEST)
-most important element
-what to do, step by step
-if only the goal is considered, no employer-
employee relationship, only a contract for piece of
work
-there is employer-employee relationship in
jeepney/taxi driver and operator
TWO-TIERED TEST
1. CONTROL TEST
2. ECONOMIC REALITY TEST
Circumstances that can be considered are:
(1) the extent to which the services performed
are an integral part of the employer’s
business;
(2) the extent of the worker’s investment in
equipment and facilities;
(3) the nature and degree of control exercised
by the employer;
(4) the worker’s opportunity for profit and loss;
(5) the amount of initiative, skill, judgment or
foresight required for the success of the
claimed independent enterprise;
(6) the permanency and duration of the
relationship between the worker and the
employer; and
(7) the degree of dependency of the worker
upon the employer for his continued
employment in that line of business.
-not required that all 7 are present
-there may be an employer-employee relationship if the
person is dependent on the prospective employer for his
continued employment in that line of business
Art. 106. Contractor or subcontractor. Whenever an
employer enters into a contract with another person
for the performance of the former’s work, the
employees of the contractor and of the latter’s
subcontractor, if any, shall be paid in accordance
with the provisions of this Code.
In the event that the contractor or subcontractor
fails to pay the wages of his employees in
accordance with this Code, the employer shall be
jointly and severally liable with his contractor or
subcontractor to such employees to the extent of
the work performed under the contract, in the same
manner and extent that he is liable to employees
directly employed by him.
Example of a legitimate job contracting:
 Contractor – Security agency
Indirect contractor – the one who hires the security
guards; the one who enters into the agreement
Employees of the contractor – Security guards
*security guards can also demand from the client;
either agency or client can be held liable for the
whole amount
The Secretary of Labor and Employment may, by
appropriate regulations, restrict or prohibit the
contracting-out of labor to protect the rights of
workers established under this Code. In so
prohibiting or restricting, he may make appropriate
distinctions between labor-only contracting and job
contracting as well as differentiations within these
types of contracting and determine who among the
parties involved shall be considered the employer
for purposes of this Code, to prevent any violation
or circumvention of any provision of this Code.
*labor-only contracting is prohibited
There is "labor-only" contracting where the person
supplying workers to an employer does not have
substantial capital or investment in the form of tools,
equipment, machineries, work premises, among
others, and the workers recruited and placed by
such person are performing activities which are
directly related to the principal business of such
employer. In such cases, the person or
intermediary shall be considered merely as an
agent of the employer who shall be responsible to
the workers in the same manner and extent as if the
latter were directly employed by him.
Example of “labor-only” – construction workers
the one liable is the contractor
"Contracting” or “Subcontracting” – refers to an
arrangement whereby a principal agrees to farm out
to a contractor the performance or completion of a
specific job or work within a definite or
predetermined period, regardless of whether such
job or work is to be performed or completed within
or outside the premises of the principal
CONTRACTOR refers to any person or entity
engaged in a legitimate contracting or
subcontracting arrangement providing services for
a specific job or undertaking farmed out by principal
under a Service Agreement
TRILATERAL RELATIONSHIP:
1. SERVICE CONTRACT – principal and
contractor
2. EMPLOYMENT CONTRACT – contractor
and its employees
Article 107. Indirect employer. The provisions of
the immediately preceding article shall likewise
apply to any person, partnership, association or
corporation which, not being an employer, contracts
with an independent contractor for the performance
of any work, task, job or project.
Article 108. Posting of bond. An employer or
indirect employer may require the contractor or
subcontractor to furnish a bond equal to the cost
of labor under contract, on condition that the bond
will answer for the wages due the employees
should the contractor or subcontractor, as the case
may be, fail to pay the same.
Article 109. Solidary liability. The provisions of
existing laws to the contrary notwithstanding, every
employer or indirect employer shall be held
responsible with his contractor or subcontractor for
any violation of any provision of this Code. For
purposes of determining the extent of their civil
liability under this Chapter, they shall be considered
as direct employers.
KASAMBAHAY – Republic Act 10361
“Domestic Workers Act” or “Batas Kasambahay”
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 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 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.
SEC. 7. Guarantee of Privacy. – Respect for the
privacy of the domestic worker shall be guaranteed
at all times and shall extend to all forms of
communication and personal effects. This
guarantee equally recognizes that the domestic
worker is obliged to render satisfactory service at all
times.
SEC. 8. Access to Outside Communication. – The
employer shall grant the domestic worker access to
outside communication during free time: Provided,
That in case of emergency, access to
communication shall be granted even during work
time. Should the domestic worker make use of the
employer’s telephone or other communication
facilities, the costs shall be borne by the domestic
worker, unless such charges are waived by the
employer.
SEC. 9. Right to Education and Training. – The
employer shall afford the domestic worker the
opportunity to finish basic education and may
allow access to alternative learning systems and,
as far as practicable, higher education or
technical and vocational training. The employer
shall adjust the work schedule of the domestic
worker to allow such access to education or training
without hampering the services required by the
employer.
SEC. 10. Prohibition Against Privileged Information.
– All communication and information pertaining to
the employer or members of the household shall be
treated as privileged and confidential, and shall not
be publicly disclosed by the domestic worker
during and after employment. Such privileged
information shall be inadmissible in evidence
except when the suit involves the employer or any
member of the household in a crime against
persons, property, personal liberty and security,
and chastity.
SEC. 11. Employment Contract. – An employment
contract shall be executed by and between the
domestic worker and the employer before the
commencement of the service in a language or
dialect understood by both the domestic worker and
the employer. The domestic worker shall be
provided a copy of the duly signed employment
contract which must include the following:
(a) Duties and responsibilities of the domestic
worker;
(b) Period of employment;
(c) Compensation;
(d) Authorized deductions;
(e) Hours of work and proportionate additional
payment;
(f) Rest days and allowable leaves;
(g) Board, lodging and medical attention;
(h) Agreements on deployment expenses, if any;
(i) Loan agreement;
(j) Termination of employment; and
(k) Any other lawful condition agreed upon by both
parties.
SEC. 13. Recruitment and Finder’s Fees. –
Regardless of whether the domestic worker was
hired through a private employment agency or a
third party, no share in the recruitment or
finder’s fees shall be charged against the
domestic worker by the said private employment
agency or third party.
SEC. 14. Deposits for Loss or Damage. – It shall be
unlawful for the employer or any other person
to require a domestic worker to make deposits
from which deductions shall be made for the
reimbursement of loss or damage to tools,
materials, furniture and equipment in the
household.
SEC. 15. Prohibition on Debt Bondage. – It shall be
unlawful for the employer or any person acting
on behalf of the employer to place the domestic
worker under debt bondage.
*involuntary servitude – debt bondage
SEC. 20. Daily Rest Period. – The domestic worker
shall be entitled to an aggregate daily rest period of
eight (8) hours per day.
SEC. 21. Weekly Rest Period. – The domestic
worker shall be entitled to at least twenty-four (24)
consecutive hours of rest in a week. The
employer and the domestic worker shall agree in
writing on the schedule of the weekly rest day of
the domestic worker: Provided, That the employer
shall respect the preference of the domestic worker
as to the weekly rest day when such preference is
based on religious grounds. Nothing in this
provision shall deprive the domestic worker and the
employer from agreeing to the following:
(a) Offsetting a day of absence with a particular rest
day;
(b) Waiving a particular rest day in return for an
equivalent daily rate of pay;
(c) Accumulating rest days not exceeding five (5)
days; or
(d) Other similar arrangements.
SEC. 22. Assignment to Nonhousehold Work. – No
domestic worker shall be assigned 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 shall be paid the applicable
minimum wage.
How do we know that the domestic worker is
assigned to such work?
-the employee is deemed a regular employee
SEC. 23. Extent of Duty. – The domestic worker
and the employer may mutually agree for the
former to temporarily perform a task that is
outside the latter’s household for the benefit of
another household. However, any liability that will
be incurred by the domestic worker on account of
such arrangement shall be borne by the original
employer. In addition, such work performed outside
the household shall entitle the domestic worker to
an additional payment of not less than the existing
minimum wage rate of a domestic worker. It shall
be unlawful for the original employer to charge
any amount from the said household where the
service of the domestic worker was temporarily
performed.
-minimum wage for domestic workers is different
SEC 25. Payment of Wages. – Payment of wages
shall be made on time directly to the domestic
worker to whom they are due in cash at least once
a month. The employer, unless allowed by the
domestic worker through a written consent, shall
make no deductions from the wages other than that
which is mandated by law. No employer shall pay
the wages of a domestic worker by means of
promissory notes, vouchers, coupons, tokens,
tickets, chits, or any object other than the cash
wage as provided for under this Act.
The domestic worker is entitled to a thirteenth
month pay as provided for by law.
SEC. 27. Prohibition on Interference in the Disposal
of Wages. – It shall be unlawful for the employer to
interfere with the freedom of any domestic worker
to dispose of the latter’s wages. The employer shall
not force, compel or oblige the domestic worker to
purchase merchandise, commodities or other
properties from the employer or from any other
person, or otherwise make use of any store or
services of such employer or any other person.
SEC 28. Prohibition Against Withholding of Wages.
– It shall be unlawful for an employer, directly or
indirectly, to withhold the wages of the domestic
worker. If the domestic worker leaves without any
justifiable reason, any unpaid salary for a period not
exceeding fifteen (15) days shall be forfeited.
Likewise, the employer shall not induce the
domestic worker to give up any part of the wages
by force, stealth, intimidation, threat or by any other
means whatsoever.
SEC. 29. Leave Benefits. – A domestic worker who
has rendered at least one (1) year of service shall
be entitled to an annual service incentive leave of
five (5) days with pay: Provided, That any unused
portion of said annual leave shall not be cumulative
or carried over to the succeeding years. Unused
leaves shall not be convertible to cash.
SEC. 30. Social and Other Benefits. – A domestic
worker who has rendered at least one (1) month of
service shall be covered by the Social Security
System (SSS), the Philippine Health Insurance
Corporation (PhilHealth), and the Home
Development Mutual Fund or Pag-IBIG, and shall
be entitled to all the benefits 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 or contributions, as
provided by law.
The domestic worker shall be entitled to all other
benefits under existing laws.
SEC. 32. Termination of Service. – Neither the
domestic worker nor the employer may
terminate the contract before the expiration of
the term except for grounds provided for in
Sections 33 and 34 of this Act. If the domestic
worker is unjustly dismissed, the domestic worker
shall be paid the compensation already earned plus
the equivalent of fifteen (15) days work by way of
indemnity. If the domestic worker leaves without
justifiable reason, any unpaid salary due not
exceeding the equivalent fifteen (15) days work
shall be forfeited. In addition, the employer may
recover from the domestic worker costs incurred
related to the deployment expenses, if any:
Provided, That the service has been terminated
within six (6) months from the domestic worker’s
employment.
If the duration of the domestic service is not
determined either in stipulation or by the nature of
the service, the employer or the domestic worker
may give notice to end the working relationship five
(5) days before the intended termination of the
service.
The domestic worker and the employer may
mutually agree upon written notice to pre-
terminate the contract of employment to end the
employment relationship.
SEC. 33. Termination Initiated by the Domestic
Worker. – The domestic worker may terminate the
employment relationship at any time before the
expiration of the contract for any of the following
causes:
(a) Verbal or emotional abuse of the domestic
worker by the employer or any member of the
household;
(b) Inhuman treatment including physical abuse of
the domestic worker by the employer or any
member of the household;
(c) Commission of a crime or offense against the
domestic worker by the employer or any member of
the household;
(d) Violation by the employer of the terms and
conditions of the employment contract and other
standards set forth under this law;
(e) Any disease prejudicial to the health of the
domestic worker, the employer, or member/s of the
household; and
(f) Other causes analogous to the foregoing.
SEC. 34. Termination Initiated by the Employer. –
An employer may terminate the services of the
domestic worker at any time before the expiration
of the contract, for any of the following causes:
(a) Misconduct or willful disobedience by the
domestic worker of the lawful order of the employer
in connection with the former’s work;
(b) Gross or habitual neglect or inefficiency by the
domestic worker in the performance of duties;
(c) Fraud or willful breach of the trust reposed by
the employer on the domestic worker;
(d) Commission of a crime or offense by the
domestic worker against the person of the employer
or any immediate member of the employer’s family;
(e) Violation by the domestic worker of the terms
and conditions of the employment contract and
other standards set forth under this law;
(f) Any disease prejudicial to the health of the
domestic worker, the employer, or member/s of the
household; and
(g) Other causes analogous to the foregoing.
- we do not have “regular employment” for domestic
workers
RIGHTS AND BENEFITS OF KASAMBAHAY
1. Minimum Wage
2. Other mandatary benefits, such as the daily
and weekly rest periods
3. Service Incentive Leave
4. 13th Month Pay
5. Freedom from employer’s interference in the
disposal of wages
6. Coverage under the SSS, PhilHealth and Pag-
IBIG laws
7. Standard of treatment
8. Board, lodging and medical attendance
9. Right to Privacy
10. Access to outside communication
11. Access to education and training
12. Right to form, join or assist labor organization
13. Right to be provided a copy of the employment
contract
14. Right to Certificate of Employment
15. Right to terminate the employment; and
16. Right to exercise their own religious beliefs and
cultural practices
HOMEWORKERS – LABOR CODE
Article 153. Regulation of industrial
homeworkers. The employment of industrial
homeworkers and field personnel shall be regulated
by the government through the appropriate
regulations issued by the Secretary of Labor and
Employment to ensure the general welfare and
protection of homeworkers and field personnel and
the industries employing them.
INDUSTRIAL HOMEWORK - a system of
production under which the work for an employer
or contractor is carried out by a homeworker at
his/her home. Materials may or may not be
furnished by the employer or contractor. It differs
from regular factory production principally in that, it
is a decentralized form of production where there is
ordinarily very little supervision or regulation of
methods of work.
-different from Work from Home; industrial work only
Article 154. Regulations of Secretary of Labor.
The regulations or orders to be issued pursuant to
this Chapter shall be designed to assure the
minimum terms and conditions of employment
applicable to the industrial homeworkers or field
personnel involved.
Article 155. Distribution of homework. For
purposes of this Chapter, the "employer" of
homeworkers includes any person, natural or
artificial who, for his account or benefit, or on behalf
of any person residing outside the country, directly
or indirectly, or through an employee, agent
contractor, sub-contractor or any other person:
1. Delivers, or causes to be delivered, any goods,
articles or materials to be processed or
fabricated in or about a home and thereafter to
be returned or to be disposed of or distributed
in accordance with his directions; or
2. Sells any goods, articles or materials to be
processed or fabricated in or about a home and
then rebuys them after such processing or
fabrication, either by himself or through some
other person.
-additional 30 days, provided there is due notice to
be given to the employer in writing at least 45 days
before the end of the female worker’s maternity
leave.
-no prior notice required in case of medical
emergency
-extended period shall not be considered as gap in
the service of the female worker
All covered female workers in government and the
private sector, including those in the informal
economy, regardless of civil status or the legitimacy
of her child
Enjoyment of maternity leave cannot be
deferred but should be availed of either before or
after the actual period of delivery in a continuous
and uninterrupted manner.
The maternity leave can be credited as
combinations of prenatal and postnatal leave as
long as it does not exceed one hundred five (105)
days and provided that compulsory postnatal leave
shall not be less than sixty (60) days.
Any female worker entitled to maternity leave
benefits as provided for herein may, at her option,
allocate up to seven (7) days of said benefits to
the child’s father, whether or not the same is
married to the female worker: Provided, That in the
death, absence, or incapacity of the former, the
benefit may be allocated to an alternate caregiver
who may be a relative within the fourth degree of
consanguinity or the current partner of the female
worker sharing the same household.
-anyone who gives support to the female worker
Workers availing of the maternity leave period
and benefits must receive their full pay.
Employers from the private sector shall be
responsible for payment of the salary differential
between the actual cash benefits received from the
SSS by the covered female workers and their
average weekly or regular wages, for the entire
duration of the maternity leave.
Requirement: A female Social Security System
(SSS) member who has paid at least three (3)
monthly contributions in the twelve (12)-month
period, immediately preceding the semester of her
childbirth, miscarriage, or emergency termination of
pregnancy; notified the employer of her pregnancy
and the probable date of her childbirth.
REPUBLIC ACT 8187: PATERNITY LEAVE ACT OF 1996
SECTION 2. Notwithstanding any law, rules and
regulations to the contrary, every married male
employee in the private and public sectors shall be
entitled to a paternity leave of seven (7) days with
full pay for the first four (4) deliveries of the
legitimate spouse with whom he is cohabiting. The
male employee applying for paternity leave shall
notify his employer of the pregnancy of his
legitimate spouse and the expected date of such
delivery.
For purposes, of this Act, delivery shall include
childbirth or any miscarriage.
-not convertible to cash
SECTION 3. Definition of Term. – For purposes of
this Act, Paternity Leave refers to the benefits
granted to a married male employee allowing him
not to report for work for seven (7) days but
continues to earn the compensation therefor, on the
condition that his spouse has delivered a child or
suffered a miscarriage for purposes of enabling him
to effectively lend support to his wife in her period
of recovery and/or in the nursing of the newly born
child.
REQUIREMENTS:
a. Male employee be employed at the time of
delivery
b. Cohabiting with such spouse who gave birth
at the time of delivery
c. Male employee applied for paternity leave
within a reasonable time from the expected
date of delivery or within such period as
provided by the company rules or the CBA
Section 8. Parental Leave. – In addition to leave
privileges under existing laws, parental leave of not
more than seven (7) working days every year shall
be granted to any solo parent employee who has
rendered service of at least one (1) year.
-noncumulative and nonconvertible to cash
“Solo parent” – any individual who falls under any
of the following categories:
(1) A woman who gives birth as a result of rape and
other crimes against chastity
(2) Death of spouse;
(3) Spouse is detained or is serving sentence for a
criminal conviction for at least one (1) year;
(4) Physical and/or mental incapacity of spouse as
certified by a public medical practitioner;
(5) Legal separation or de facto separation from
spouse for at least one (1) year;
(6) Declaration of nullity or annulment of marriage
with the custody of the children;
(7) Abandonment of spouse for at least one (1)
year;
(8) Unmarried mother/father who has preferred to
keep and rear her/his child/children instead of
having others care for them or give them up to a
welfare institution;
(9) Any other person who solely provides parental
care and support to a child or children;
(10) Any family member who assumes the
responsibility of head of family.
-notify within reasonable time and acquire solo ID parent
from DSWD
Section 7. Work Discrimination. – No employer
shall discriminate against any solo parent employee
with respect to terms and conditions of employment
on account of his/her status.
LEAVE BENEFITS FOR WOMEN WORKERS
REPUBLIC ACT 9710. THE MAGNA CARTA OF WOMEN
SECTION 18. Special Leave Benefits for Women.
— 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 following surgery caused by
gynecological disorders.
-granted after the female employee has undergone
surgery without prejudice to an employer allowing an
employee to receive pay before or during surgery
-noncumulative and nonconvertible to cash
REPUBLIC ACT 9262. ANTI-VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN ACT OF 2004
SECTION 43. Entitled to Leave. – Victims under
this Act shall be entitled to take a paid leave of
absence up to ten (10) days in addition to other
paid leaves under the Labor Code and Civil
Service Rules and Regulations, extendible when
the necessity arises as specified in the protection
order.
Any employer who shall prejudice the right of the
person under this section shall be penalized in
accordance with the provisions of the Labor Code
and Civil Service Rules and Regulations. Likewise,
an employer who shall prejudice any person for
assisting a co-employee who is a victim under this
Act shall likewise be liable for discrimination.
-noncumulative & nonconvertible
REPUBLIC ACT 7877: ANTI-SEXUAL HARASSMENT
ACT OF 1995
SECTION 3. Work, Education or Training -Related,
Sexual Harassment Defined. – Work, education or
training-related sexual harassment is committed by
an employer, employee, manager, supervisor,
agent of the employer, teacher, instructor,
professor, coach, trainor, or any other person who,
having authority, influence or moral ascendancy
over another in a work or training or education
environment, demands, requests or otherwise
requires any sexual favor from the other,
regardless of whether the demand, request or
requirement for submission is accepted by the
object of said Act.
-not particular to gender
(a) In a work-related or employment environment,
sexual harassment is committed when:
(1) The sexual favor is made as a condition in
the hiring or in the employment, re-
employment or continued employment of said
individual, or in granting said individual
favorable compensation, terms of conditions,
promotions, or privileges; or the refusal to
grant the sexual favor results in limiting,
segregating or classifying the employee which
in any way would discriminate, deprive or
diminish employment opportunities or
otherwise adversely affect said employee;
(2) The above acts would impair the
employee’s rights or privileges under existing
labor laws; or
(3) The above acts would result in an
intimidating, hostile, or offensive environment
for the employee.
(b) In an education or training environment, sexual
harassment is committed:
(1) Against one who is under the care, custody
or supervision of the offender;
(2) Against one whose education, training,
apprenticeship or tutorship is entrusted to the
offender;
(3) When the sexual favor is made a condition
to the giving of a passing grade, or the granting
of honors and scholarships, or the payment of
a stipend, allowance or other benefits,
privileges, or consideration; or
(4) When the sexual advances result in an
intimidating, hostile or offensive environment
for the student, trainee or apprentice.
Any person who directs or induces another to
commit any act of sexual harassment as herein
defined, or who cooperates in the commission
thereof by another without which it would not have
been committed, shall also be held liable under this
Act.
SECTION 5. Liability of the Employer, Head of
Office, Educational or Training Institution. – The
employer or head of office, educational or training
institution shall be solidarily liable for damages
arising from the acts of sexual harassment
committed in the employment, education or training
environment if the employer or head of office,
educational or training institution is informed of
such acts by the offended party and no immediate
action is taken.
Art 279. Security of tenure. In cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or
when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and
other privileges and to his full backwages, inclusive
of allowances, and to his other benefits or their
monetary equivalent computed from the time his
compensation was withheld from him up to the time
of his actual reinstatement. (As amended by
Section 34, Republic Act No. 6715, March 21,
1989)
-bawal i-fire agad in Ph
-in US, pwede employment at will
KINDS OF EMPLOYMENT
a. Regular
b. Casual
c. Project
d. Seasonal
e. Fixed-term
f. Probationary
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, except where
the employment has been fixed for a specific
project or undertaking the completion or
termination of which has been determined at the
time of the engagement of the employee or where
the work or service to be performed is seasonal in
nature and the employment is for the duration of
the season.
-the kind of employment is not strictly governed by
the written contract or oral agreement between the
parties
-what determines the status of employment is the
law
*fixed for a specific project – project employee or
undertaking
An employment shall be deemed to be casual if it is
not covered by the preceding paragraph: Provided,
That any employee who has rendered at least one
year of service, whether such service is
continuous or broken, shall be considered a
regular employee with respect to the activity in
which he is employed and his employment shall
continue while such activity exists.
REGULAR EMPLOYEE
1. Has been engaged to perform tasks usually
necessary or desirable to the usual trade or
business of the employer (by the nature of
work);
2. Has rendered at least 1 year of service,
whether such service is continuous or
broken, with respect to the activity in which
he is employed (by length of service)
The primary standard of determining regular
employment is the reasonable connection
between the particular activity performed by the
employee to the usual trade or business of the
employer.
-it does not mean that since they are not regular,
pwede na tanggalin anytime
CASUAL EMPLOYEE
• Activity performed is not usually necessary
or desirable in the usual or trade of the
employer, not project and not seasonal
• Perform activities which are incidental to
the business of the employer
• If he has rendered at least 1 year of the
service, whether such service is continuous
or broken, he is considered a REGULAR
employee with respect to the activity in
which he is employed, and his employment
shall continue while such activity exists
A PROJECT EMPLOYEE is one whose
employment has been fixed for a specific project or
undertaking, the completion or termination of
which has been determined at the time of the
engagement of the employee
-as long as no rehiring of the same employee from
one project to another, considered project
employee
-if the duration of the project has been clearly
agreed upon at the time of the inception of the
project, he is considered an employee and enjoys
the security of tenure until the project is finished
-at the end of the project, the employee is
terminated
-the employer does not have an obligation to give
another project even if the project has been more
than one year
For an employee to be considered project-based,
the employer must show compliance with two (2)
requisites, namely that:
1. The employee was assigned to carry out a
specific project or undertaking; and
2. The duration and scope of which were
specified at the time they were engaged for
such project.
-if not informed at the time of inception, the
employee is considered regular by default
General Rule: Project employees are not regular
employees, as their services are needed only when
there are projects to be undertaken.
Exception: Where the employment or project
employees is extended long after the supposed
project has been finished, the employees are
removed from the scope of project employees and
are considered regular employees.
When a Project Employee Becomes a Regular
Employee
1. There is continuous re-hiring of project
employees even after the cessation of a
project for the same tasks or nature of tasks;
and
 2. The tasks performed by the alleged project
employee are vital, necessary, and
indispensable to the usual business or trade
of the employer
-even when tasks performed are vital of the
business, he can still be considered a project
employee as long as the two requisites are present,
but if rehired, regular na
A SEASONAL EMPLOYEE is one whose work or
service to be performed is seasonal in nature and
the employment is for the duration of the season.
-farmers or additional workers during xmas season
FIXED-PERIOD EMPLOYEE – definition is not
recognized in the labor code, but in a civil code
provision and jurisprudence
1. The fixed period of employment was
knowingly and voluntarily agreed upon by
the parties without any force, duress, or
improper pressure being brought to bear
upon the employee and absent any other
circumstances vitiating his consent;
2. It satisfactorily appears that the employer
and the employee dealt with each other on
more or less equal terms with no moral
dominance exercised by the former or the
latter.
Art 281. Probationary employment. Probationary
employment shall not exceed six (6) months from
the date the employee started working, unless it is
covered by an apprenticeship agreement
stipulating a longer period. The services of an
employee who has been engaged on a
probationary basis may be terminated for a just
cause or when he fails to qualify as a regular
employee in accordance with reasonable standards
made known by the employer to the employee at
the time of his engagement. An employee who is
allowed to work after a probationary period shall be
considered a regular employee.
PROBATIONARY STATUS
-One who is under observation by the employer to
determine whether he is qualified for permanent
employment
-more than six months? pwede basta agreed upon
the beginning of employment
-probationary only if made known upon the time
hired and informed of the standards to be regular
-pag hindi informed, automatic regular
-implied na ang 6 months probationary period
-within 6 months, hindi basta mapa alis kahit
probationary; only with valid cause
-shorter than six months? Pwede.
-If observed na wala naga comply sa reasonable
standards already made known to the employee,
pwede materminate as long as within six months
-basta lampas na sa six months, automatic regular
-extend the probationary? Pwede as long as before
mag expire ang 6 months period
POST-EMPLOYMENT: Termination by Employer
VALID DISMISSAL
Substantive due process means that the
termination must be based on just and/or
authorized causes of dismissal. On the other hand,
procedural due process requires the employer to
effect the dismissal in a manner specified in the
Labor Code and its IRR.
➢ just cause – the fault of the employee
➢ authorized cause – not fault of the employee
Article 282. Termination by employer. An
employer may terminate an employment for any of
the following causes:
a. Serious misconduct or willful disobedience
by the employee of the lawful orders of his
employer or representative in connection
with his work;
b. Gross and habitual neglect by the employee
of his duties;
c. Fraud or willful breach by the employee of
the trust reposed in him by his employer or
duly authorized representative;
d. Commission of a crime or offense by the
employee against the person of his
employer or any immediate member of his
family or his duly authorized
representatives; and
e. Other causes analogous to the foregoing.
SERIOUS MISCONDUCT as a JUST CAUSE for
DISMISSAL:
1. It must be SERIOUS (sexual harassment,
theft)
2. It must RELATE TO THE PERFORMANCE
OF THE EMPLOYEE’S DUTIES
3. It must show that the employee has become
UNFIT to continue working for the employer
4. It must have been performed with
WRONGFUL INTENT
WILLFUL DISOBEDIENCE as a JUST CAUSE for
DISMISSAL
1. Conduct must be willful or intentional,
characterized by a wrongful and perverse
attitude
2. Order violated must be based on a
a. Reasonable and lawful company rule,
regulation or policy
b. Made known to the employee and
c. Must pertain to the duties for which the
employee has been engaged to
discharge
-not willful disobedience: if illegal and gi-disobey;
employer ask employee a waiver to not anymore
demand contributions for SSS
GROSS NEGLIGENCE as a JUST CAUSE for
DISMISSAL:
1. There must be negligence which is gross
and/or habitual in character
2. It must be work related as would make the
employee unfit to work for the employer
-no bad faith
-prove not all but any are present
ABANDONMENT
To constitute abandonment, two elements
must concur: (1) the failure to report for work or
absence without valid or justifiable, and (2) a clear
intention to sever the employer-employee
relationship, with the second element as the
more determinative factor and being manifested
by some overt acts. Mere absence is not
sufficient. It is the employer who has the burden of
proof to show a deliberate and unjustified refusal of
the employee to resume his employment without
any intention of returning.
FRAUD – w/ bad faith, misrepresentations of
credentials
LOSS OF CONFIDENCE as a JUST CAUSE for
DISMISSAL
1. Employee holds a position of trust and
confidence
2. There exists an act of justifying the loss of
trust and confidence, which means that the
act that betrays the employer’s trust must be
real (not simulated)
3. Employee’s breach of trust must be willful
(intentional and knowingly)
4. The act must be in relation to the
employee’s work, which would render him
unfit to perform it
COMMISSION OF A CRIME OR OFFENSE
-there must be final judgement
-for labor disputes, under the labor arbiter
ANALOGOUS CASES
-attitude problem
Article 283. Closure of establishment and
reduction of personnel. The employer may also
terminate the employment of any employee due to
the installation of labor-saving devices,
redundancy, retrenchment to prevent losses or the
closing or cessation of operation of the
establishment or undertaking unless the closing is
for the purpose of circumventing the provisions of
this Title, by serving a written notice on the workers
and the Ministry of Labor and Employment at least
one (1) month before the intended date thereof. In
case of termination due to the installation of labor-
saving devices or redundancy, the worker affected
thereby shall be entitled to a separation pay
equivalent to at least his one (1) month pay or to at
least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to
prevent losses and in cases of closures or
cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be
equivalent to one (1) month pay or at least one-half
(1/2) month pay for every year of service,
whichever is higher. A fraction of at least six (6)
months shall be considered one (1) whole year.
-if due to serious business losses, not entitled to
separation pay
Article 284. Disease as ground for termination.
An employer may terminate the services of an
employee who has been found to be suffering from
any disease and whose continued employment is
prohibited by law or is prejudicial to his health as
well as to the health of his co-employees: Provided,
That he is paid separation pay equivalent to at least
one (1) month salary or to one-half (1/2) month
salary for every year of service, whichever is
greater, a fraction of at least six (6) months being
considered as one (1) whole year.
DISEASE
For termination due to disease – an
authorized cause for dismissal under Article 284 of
the Labor Code. As substantive requirements, the
Labor Code and its IRR require the presence of the
following elements:
 (1) An employee has been found to be suffering
from any disease,
(2) His continued employment is prohibited by
law or prejudicial to his health, as well as to
the health of his co-employees
(3) A competent public health authority
certifies that the disease is of such nature
or at such a stage that it cannot be cured
within a period of six months even with
proper medical treatment
Article 286. When employment not deemed
terminated. The bona-fide suspension of the
operation of a business or undertaking for a period
not exceeding six (6) months, or the fulfillment by
the employee of a military or civic duty shall not
terminate employment. In all such cases, the
employer shall reinstate the employee to his former
position without loss of seniority rights if he
indicates his desire to resume his work not later
than one (1) month from the resumption of
operations of his employer or from his relief from
the military or civic duty.
-floating, okay lang as long as within 6 months
Article 285. Termination by employee.
a. An employee may terminate without just cause
the employee-employer relationship by serving
a written notice on the employer at least one
(1) month in advance. The employer upon
whom no such notice was served may hold the
employee liable for damages.
b. An employee may put an end to the relationship
without serving any notice on the employer
for any of the following just causes:
1. Serious insult by the employer or his
representative on the honor and person of
the employee;
2. Inhuman and unbearable treatment
accorded the employee by the employer or
his representative;
3. Commission of a crime or offense by the
employer or his representative against the
person of the employee or any of the
immediate members of his family; and
4. Other causes analogous to any of the
foregoing.
Article 287. Retirement. Any employee may be
retired upon reaching the retirement age
established in the collective bargaining agreement
or other applicable employment contract.
In case of retirement, the employee shall be entitled
to receive such retirement benefits as he may have
earned under existing laws and any collective
bargaining agreement and other agreements:
Provided, however, That an employee’s retirement
benefits under any collective bargaining and other
agreements shall not be less than those provided
therein.
In the absence of a retirement plan or agreement
providing for retirement benefits of employees in
the establishment, an employee upon reaching the
age of sixty (60) years or more, but not beyond
sixty-five (65) years which is hereby declared the
compulsory retirement age, who has served at
least five (5) years in the said establishment,
may retire and shall be entitled to retirement pay
equivalent to at least one-half (1/2) month salary for
every year of service, a fraction of at least six (6)
months being considered as one whole year.
Unless the parties provide for broader inclusions,
the term ‘one-half (1/2) month salary’ shall mean
fifteen (15) days plus one-twelfth (1/12) of the 13th
month pay and the cash equivalent of not more than
five (5) days of service incentive leaves.
An underground or surface mining employee
upon reaching the age of fifty (50) years or more,
but not beyond sixty (60) years which is hereby
declared the compulsory retirement age for both
underground and surface mine workers, who has
served at least five (5) years as underground or
surface mine worker may retire and shall be
entitled to all the retirement benefits provided for in
this Article.
For purposes of this Act, surface mine workers shall
only include mill plant workers, electrical,
mechanical and tailings pond personnel.
Retail, service and agricultural establishments
or operations employing not more than ten (10)
employees or workers are exempted from the
coverage of this provision.
Violation of this provision is hereby declared
unlawful and subject to the penal provisions
provided under Article 302 of this Code.
Nothing in this Article shall deprive any employee of
benefits to which he may be entitled under Section
12-B of Republic Act No. 1161, as amended,
otherwise known as the Social Security Act of 1997
and other existing laws or company policies or
practices.
PROCEDURAL DUE PROCESS
Article 277. Miscellaneous provisions.
xxx
Subject to the constitutional right of workers to
security of tenure and their right to be protected
against dismissal except for a just and authorized
cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer
shall furnish the worker whose employment is
sought to be terminated a written notice containing
a statement of the causes for termination and shall
afford the latter ample opportunity to be heard and
to defend himself with the assistance of his
representative if he so desires in accordance with
company rules and regulations promulgated
pursuant to guidelines set by the Department of
Labor and Employment.
Any decision taken by the employer shall be without
prejudice to the right of the worker to contest the
validity or legality of his dismissal by filing a
complaint with the regional branch of the National
Labor Relations Commission. The burden of
proving that the termination was for a valid or
authorized cause shall rest on the employer.
For termination of employment based on just
causes as defined in Article 282 of the Code:
(a) A written notice served on the employee
specifying the ground or grounds for
termination and giving said employee
reasonable opportunity within which to
explain his side.
(b) A learning or conference during which the
employee concerned, with the assistance of
counsel if he so desires is given
opportunity to respond to the charge,
present his evidence, or rebut the evidence
presented against him. (explain in writing)
(c) A written notice of termination served on
the employee, indicating that upon due
consideration of all the circumstances,
grounds have been established to justify his
termination.
To clarify, the following should be considered in
terminating the services of employees:
(1) The first written notice to be served on the
employees should contain the specific causes or
grounds for termination against them, and a
directive that the employees are given the
opportunity to submit their written explanation
within a reasonable period. "Reasonable
opportunity" under the Omnibus Rules means
every kind of assistance that management must
accord to the employees to enable them to
prepare adequately for their defense.
This should be construed as a period of at least five
(5) calendar days from receipt of the notice to give
the employees an opportunity to study the
accusation against them, consult a union official or
lawyer, gather data and evidence, and decide on
the defenses they will raise against the complaint.
Moreover, in order to enable the employees to
intelligently prepare their explanation and
defenses, the notice should contain a detailed
narration of the facts and circumstances that
will serve as basis for the charge against the
employees. A general description of the charge will
not suffice. Lastly, the notice should specifically
mention which company rules, if any, are
violated and/or which among the grounds under
Art. 282 is being charged against the
employees.
(2) After serving the first notice, the employers
should schedule and conduct a hearing or
conference wherein the employees will be given the
opportunity to:
(1) explain and clarify their defenses to the
charge against them;
(2) present evidence in support of their
defenses; and
(3) rebut the evidence presented against them
by the management.
During the hearing or conference, the employees
are given the chance to defend themselves
personally, with the assistance of a representative
or counsel of their choice. Moreover, this
conference or hearing could be used by the parties
as an opportunity to come to an amicable
settlement.
(3) After determining that termination of
employment is justified, the employers shall serve
the employees a written notice of termination
indicating that:
(1) all circumstances involving the charge
against the employees have been considered;
and
(2) grounds have been established to justify the
severance of their employment.