Law125 (Labor Law) Midterm Exams Reviewer I. DEFINITION 1.

Subcontracting - an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service w/n a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed w/n or outside the premises of the principal. 2. Control Test in employment relation and in subcontracting This relationship is established through a four-fold test, under which the employer has the: a. Right to hire or to the selection and engagement of the employee. b. right to payment of wages and salaries c. power of dismissal d. power to control the employee, with respect to not only the results of the work but also to the means and methods by which the work is to be accomplished. This is known as the right-of-control test. The power of control is the most important factor in determining the existence of an employer-employee relationship. The employer need not actually exercise this power. It is enough that the employer retains the right to exercise this power. It is enough that the employer retains the right to exercise In subcontracting, there are three parties involved: a. The principal, which decides to farm out a job or service to a subcontractor; b. The subcontractor, which has the capacity to independently undertake the performance of the job or service c. The employees engaged by the subcontractor to accomplish the job or service In subcontracting, the four-fold test of employer-employee relationship should be satisfied by the subcontractor in relation to the employees it engages to accomplish the subcontracted job or service. If the four-fold test is satisfied not by the subcontractor but by the principal, the principal then becomes the employer of the employees engaged to accomplish the job or service. What exists is not subcontracting but a direct employer-employee relationship between the principal and the employees. 3. Substantial Capital - capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements, machineries and work premises, directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out - refers to paid-up capital stocks/shares of at least 3M pesos in the case of corporations, partnerships and cooperatives; in the case of single proprietorship, a net worth of at least 3M pesos 4. Talent 5. Probationary Employment (Art. 281) - shall not exceed 6 months from the date the employees 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.

6. Discrimination against women - the unlawful discrimination of an employer to any woman employee with respect to terms and conditions of employment solely on account of her sex. - the following are acts of discrmination: a. payment of a lesser compensation, wage, salary or other forms of remuneration and fringe benefits to a female employees as against a male employee, for work of equal value b. favoring of male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes 7. Handicapped Workers (Art. 78) - are those whose earning capacity is impaired by age or physical or mental deficiency or injury. 8. Compensable hours of work (Book 3, Rule 1, Sec. 3) - the following shall be considered as compensable hours worked: a. All time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed work place b. All time during which an employee is suffered or permitted to work. 9. Solo Parents - any individual who falls under any of the following categories: a. A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child; b. Parent left solo or alone with the responsibility of parenthood due to death of spouse; c. Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year; d. Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner; e. Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children; f. Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children; g. Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year; h. 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; i. Any other person who solely provides parental care and support to a child or children; j. Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent. 10. Service Incentive Leave - right of every employee who has rendered at least one yr of service to a yearly service incentive leave of five days with pay. - shall not apply to those:

a. who are already enjoying the benefit b. enjoying vacation leave with pay of at least five days c. employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the DOLE 11. Service Charge - all service charges collected by hotels, restaurants, and similar establishments shall be distributed at the rate of 85% for all covered employees and 15% for management. The share of employees shall be equally distributed among them. In case service charges is abolished, the share of the covered employees shall be considered integrated in their wages. - The remaining fifteen percent (15%) of the charges may be retained by management to answer for losses and breakages and for distribution to managerial employees, at the discretion of the management in the latter case. Service charges are collected by most hotels and some restaurants, nightclubs, cocktail lounges. - the shares of the employees in the service charges shall be distributed to them once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. - where the company stopped collecting service charges, the average share previously enjoyed by the employees for the past twelve (12) months immediately preceding such stoppage shall be integrated into their basic wages. 12. Employer - any person or entity who employs the services of others, one for whome employees work and who pays their wages or salaries. DIFFERENTIATION: 1. Principal vs. Subcontractor Principal refers to any employer who puts out or farms out a job, service or work to a contractor or subcontractor. It is the client of the subcontractor to whom the latter supplies employees. Subcontractor refers to any person or entity engaged in a legitimate contracting or subcontracting arrangement. Enters into an agreement with the principal to supply, recruit and place workers for the performance of a job, work or service of the principal. 2. Job Contracting vs. Labor-Only Contracting Job Contracting: - the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own directions of the principal in all matters connected with performance of the work except as to the results thereof - the contractor or subcontractor has substantial capital or investment. - the agreement between, the principal and the contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self- organization, security of tenure and social and welfare benefits. Labor-only Contracting:

- is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal
- where the persons supplying workers to an employer does not have substantial capital and investment in the form of tools, equipment, machineries, work premises - the workers recruited and placed by such person are performing activities w/c are directly related to the principal business of such employer - the subcontractor or contractor 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

3. Liability of Principal vs. Liability of Subcontractor to the Subcontracted Worker In legitimate job contracting, the principal shall be solidarily liable with the subcontractor in case the latter fails to pay the wages of its contractual employees up 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. 4. Project Employment vs. Seasonal Employment vs. Fixed Term Employment 5. Househelpers vs. Homeworkers Househelper: - synonymous to domestic servant - any person, whether male or female who renders services in and about the employers home and which services are usually necessary or desirable for the maintenance and enjoyment and ministers exclusively to the personal comfort and enjoyment of the employers family -employmeny contract shall not last for more than 2 yrs but may be renewable from year -Min. wage rates: P800, P650 & P550 - may employ minor Homeworker: - any person who performs industrial work for an employer, contractor or subcontractor - means a worker who is engaged in industrial homework, a system of production under w/c 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 - decentralized form of production where there is ordinarily very little supervision or regulation of methods of work - have rights of self-organization - standard wage rates in appropriate orders for the particular work or processing to be performed by homeworkers are established by DOLE - may employ minor 6. Apprentices vs. Learners Apprentices: - workers who are covered by a written apprenticeship agreement, not exceeding 6 months, with an individual employer or any of the entities recognized by the law. - persons under a practical training on job supplemented by theoretical instruction by the employer. - employed in highly technical industries - wage rates below legal minimum wage but not below 75% of it. Learners: - persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time w/c shall not exceed 3 months - those who have been allowed or suffered to work during the first 2 months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period w/o learners fault 7. Rules on Nightwork vs. Rules on Overtime Rules on Nigthwork: - every employee shall be paid a night shift differential of not less than 10% of his regular wage for each hr of work performed between 10pm 6am Overtime Work: - work may be performed beyond 8 hrs on a regular day, provided that the employee is paid for the over time work an additional compensation = to his regular wage + 25%(regular wage) - work performed beyond 8 hrs during a holiday or rest day: an additional compensation = to the rate of the first 8 hrs on a holiday or rest day + at least 30% (first 8 hrs) - undertime work on any particular day shall not be offset by overtime work on any other day - any employee may be required by the employer to perform overtime work on specific circumstances:

a. country at war, natl/ local emergency b. to prevent loss of life/ imminent danger to public safety c. urgent work to be performed on machines etc. to avoid loss to the employer d. to prevent loss of perishable goods e. where the completion of the work started before th 8th hr is necessary to prevent serious obstruction to the business of the employer 8. Regular Holiday vs. Special Days Regular Holiday: -

ENUMERATION: 1. Rights of workers under the Constitution a. b. c. d. e. f. g. h. i. j. right to self-organization right to collective bargaining and negotiations right to peaceful concerted activities right to strike right to security of tenure right to humane conditions of work right to a living wage right to participate in policy and decision-making processes right to just share of fruits of production right of enterprises to reasonable returns on investments, and to expansion and growth

2. Elements used to determine employer-employee relation Four-Fold Test a. right to selection of hiring and engagement of employee b. right to payment of wages c. power to control the employees conduct, achieved work and the means and methods of achieving such work d. power to dismiss 3. Prohibited acts in subcontracting (a) Contracting out of a job, work or service when not done in good faith and not justified by the exigencies of the business and the same results in the termination of regular employees and reduction of work hours or reduction or splitting of the bargaining unit (b) Contracting out of work with a "cabo" as defined in Section 1 (ii), Rule I, Book V of these Rules. "Cabo" refers to a person or group of persons or to a labor group which, in the guise of a labor organization, supplies workers to an employer, with or without any monetary or other consideration whether in the capacity of an agent of the employer or as an ostensible independent contractor (c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractual employee, or undermining his security of tenure or basic rights, or circumventing the provisions of regular employment, in any of the following instances: i) In addition to his assigned functions, requiring the contractual employee to perform functions which are currently being performed by the regular employees of the principal or of the contractor or subcontractor ii) Requiring him to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal, contractor or subcontractor from any liability as

to payment of future claims iii) Requiring him to sign a contract fixing the period of employment to a term shorter than the term of the contract between the principal and the contractor or subcontractor, unless the latter contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement (d) Contracting out of a job, work or service through an in-house agency which refers to a contractor or subcontractor engaged in the supply of labor which is owned, managed or controlled by the principal and which operates solely for the principal (e) Contracting out of a job, work or service directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent;(f) Contracting out of a job, work or service being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self organization as provided in Art. 248 (c) of the Labor Code, as amended. 4. Kinds of Regular Employees a. b. c. d. e. regular employees casual employees casual-to-regular remployees project-to-regular employees seasonal-to-regular employees

5. Protection to women under the Labor Code ART. 130. Nightwork prohibition ART. 131. Exceptions ART. 132. Facilities for women ART. 133. Maternity leave benefits Article 134. Family Planning Services; Incentives for Family Planning Article 135. Discrimination Prohibited Article 137. Prohibited Acts Article 138. Classification of Certain Women Workers b. Protection of Women in RA 10151 Art. 158. Women Night Workers. ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth During pregnancy During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers. During the periods referred to in this article: o A woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities o A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position. o Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work.

6. Protection to women workers under the Magna Carta of Women Section 8. Human Rights of Women. Section 9. Protection from Violence. ensure that all women shall be protected from all forms of violence as provided for in existing laws Section 10. Women Affected by Disasters, Calamities, and Other Crisis Situations. - protection and security in times of disasters, calamities, and other crisis situations especially in all phases of relief, recovery, rehabilitation, and construction efforts shall provide for immediate humanitarian assistance, allocation of resources, and early resettlement, if necessary. It shall also address the particular needs of women from a gender perspective to ensure their full protection from sexual exploitation and other sexual and gender- based violence committed against them. Responses to disaster situations shall include the provision of services, such as psychosocial support, livelihood support, education, psychological health, and comprehensive health services, including protection during pregnancy. Section 11. Participation and Representation. - to accelerate the participation and equitable representation of women in all spheres of society particularly in the decision-making and policy-making processes in government and private entities The State shall institute the following affirmative action mechanisms so that women can participate meaningfully in the formulation, implementation, and evaluation of policies, plans, and programs for national, regional, and local development: (a) Empowerment within the Civil Service (b) Development Councils and Planning Bodies (c) Other Policy and Decision-Making Bodies (d) International Bodies (e) Integration of Women in Political Parties (f) Private Sector Section 12. Equal Treatment Before the Law Section 13. Equal Access and Elimination of Discrimination in Education, Scholarships, and Training. ensure that gender stereotypes and images in educational materials and curricula are adequately and appropriately revised. Section 14. Women in Sports. develop, establish, and strengthen programs for the participation of women and girl-children in competitive and noncompetitive sports ensure the safety and well-being of all women and girls participating in sports, especially, but not limited to, trainees, reserve members, members, coaches, and mentors of national sports teams, whether in studying, training, or performance phases Section 15. Women in the Military. eliminate discrimination of women in the military, police, and other similar services. Women in the military shall be accorded the same promotional privileges and opportunities as men. Section 16. Nondiscriminatory and Nonderogatory Portrayal of Women in Media and Film. raise the consciousness of the general public in recognizing the dignity of women and the role and contribution of women in the family; community, and the society through the strategic use of mass media. Section 17. Women's Right to Health. - provide for a comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's life cycle and which addresses the major causes of women's mortality and morbidity protection from hazardous drugs, devices, interventions, and substances. Section 18. Special Leave Benefits for Women. - special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. Section 19. Equal Rights in All Matters Relating to Marriage and Family Relations. - eliminate discrimination against women in all matters relating to marriage and family relations and shall ensure

Section 20. Food Security and Productive Resources. - The State recognizes the contribution of women to food production and shall ensure its sustainability and sufficiency with the active participation of women. Section 21. Right to Housing. develop housing programs for women that are localized, simple, accessible, with potable water, and electricity, secure, with viable employment opportunities and affordable amortization Section 22. Right to Decent Work. ensure decent work standards for women that involve the creation of jobs of acceptable quality in conditions of freedom, equity, security, and human dignity. Section 23. Right to Livelihood, Credit, Capital, and Technology. - The State shall ensure that women are provided with the following: Section 24. Right to Education and Training. Section 25. Right to Representation and Participation. - ensure women's participation in policy-making or decision-making bodies in the regional, national, and international levels. Section 26. Right to Information - Access to information regarding policies on women, including programs, projects, and funding outlays that affect them, shall be ensured. Section 27. Social Protection Section 28. Recognition and Preservation of Cultural Identity and Integrity. protection to recognize and respect the rights of Moro and indigenous women to practice, promote, protect, and preserve their own culture, traditions, and institutions Section 29. Peace and Development. Section 30. Women in Especially Difficult Circumstances. - victims and survivors of sexual and physical abuse, illegal recruitment, prostitution, trafficking, armed conflict, women in detention, victims and survivors of rape and incest, and such other related circumstances which have incapacitated them functionally. Section 31. Services and Interventions. - WEDC shall be provided with services and interventions as necessary such as, but not limited to, the following: (a) Temporary and protective custody, Medical and dental services, Psychological evaluation; Counseling; Psychiatric evaluation; Legal services; Productivity skills capability building; Livelihood assistance; Job placement; Financial assistance, Transportation assistance. Section 32. Protection of Girl-Children. eliminate all forms of discrimination against girl-children in education, health and nutrition, and skills development. Section 33. Protection of Senior Citizens. protection of women senior citizens from neglect, abandonment, domestic violence, abuse, exploitation, and discrimination. Section 34. Women are entitled to the recognition and protection of their rights defined and guaranteed under this Act including their right to nondiscrimination 7. Worst forms of child labor Sec. 12-D. Prohibition Against Worst Forms of Child Labor. - No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: "(1) All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or "(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or "(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or "(4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it:

a. Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being b. Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals c. Is performed underground, underwater or at dangerous heights d. Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools e. Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads f. Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations g. Is performed under particularly difficult conditions h. Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites i. Involves the manufacture or handling of explosives and other pyrotechnic products. 8. Employees covered by the title on conditions of employment All employees in all establishments and undertakings, whether or not for profit or not, but not to: a. b. c. d. e. f. g. govt employees managerial employees field personnel persons hired for personal service of another members of the family of the employer who are dependent on him for support workers paid by results domestic helpers

9. Leaves under the law a. Service Incentive Leave

Service Incentive Leave Pay is the benefit of employees to avail of leave with pay for 5 days provided she has rendered service for at least one year. b. Solo Parents' Leave

Persons who fall under the definition of solo parents and who have rendered service of at least one year are entitled to 7 working days of leave to attend to their parental duties. c. Maternity Leave

A female member of the Social Security System (SSS) who has paid at least 3 monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary. The benefit is for 60 days for normal delivery and 78 days for caesarian delivery for the first four deliveries and miscarriages. d. Paternity Leave

The law provides for paternity leave of 7 days with full pay to all married male employees in the private and public sectors. It is only available for the first four (4) deliveries of the legitimate spouse with whom the employee is cohabiting. e. Leaves under RA 9262

Women victims of violence provided under R.A. 9262 of the Anti-Violence against Women and their Children Act are entitled to a paid leave of absence from work up to 10 days. f. Leaves under RA 9710

The Magna Carta of Women introduced a 2 month leave for women with full pay based on gross monthly compensation, for women employees who undergo surgery caused by gynecological disorders, provided that

they have rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months

10. Kinds of homeworkers a. b. homeworkers field personnel

11. Requirements for alien employment a. employers of aliens shall submit a list of such aliens to the Bureau indicating their: names, citizenships, foreign and local addresses, nature of employment and status of stay in the Philippines b. registration of resident aliens to the Bureau c. employment permit from the DOLE curriculum vitae, signed by the applicant, including: educational background, work experience and other data showing that he possesses high technical skills in his trade or profession contract of employment between employer and the principal, indicating: o that the non-resident alien worker shall comply w/ all applicable laws, rules & regulations of the Philppines o that the non-resident alien worker and the employer shall bind themselves to train at least 2 Filipino understudies o that he shall not engage in any gainful employment other than that for w/c he was issued a permit a designation by the employer of at least 2 understudies of most ranking regular employees in the section or dept for w/c the expatriates are being hired to ensure the actual transfer of technology. d. issuances of employment permit compliance by the employer & employee w/ the requirements of sec.2 report of the bureau director as to the non-availability of any person in the Philippines who is competent, able and willing to do the job for w/c the services of the applicant are desired his assessment as to whether or not the employment of the applicant will redound to the national interest admissibility of the alien as certified by the Commission on Immigration and Deportation recommendation of the Board of Investments or other apt. govt agencies if the applicant will be employed in preferred areas of investments or in acc. w/ imperatives of economic devt payment fee of P100