SAN BEDA COLLEGE OF LAW
MEMORY AID in LABOR LAW Any form of reproduction of this copy is strictly prohibited!!!
PRELIMINARY TITLE CHAPTER I GENERAL PROVISIONS ✍ ART 1. NAME OF DECREE ☛ LABOR LEGISLATION - Consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. It is divided into labor standards and labor relations. ☛ LABOR STANDARDS - Are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards. ☛ LABOR RELATIONS LAW - defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. - The law which seeks to stabilize the relation between employer and employee, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration.
7.Right to Participate in Policy & Decision-Making Processes affecting their rights and benefits as may be provided by law
☛ RELATED LAWS: 1. CIVIL CODE: see Arts. 1700, 1701and 1703 2. REVISED PENAL CODE: Art. 289 3. OTHERS: SSS Law, GSIS Law, Agrarian Reform Law, the 13th month pay law, the Magna Carta for Public Health Workers, etc.
☛ RATIONALE : - The raison d’ etre of labor laws is the POLICE POWER of the State ✍ ART 3. DECLARATION OF BASIC
POLICY The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, age or creed, and regulate the relations between workers and employers. The State shall assure the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.
☛ EMPLOYER - one who employs the services of others; one for whom employees work and who pays their wages or salaries.
☛ EMPLOYEE - one who works for an employer; a person working for salary or wages
✍ ART. 2. DATE OF EFFECTIVITY
✍ ART 4. CONSTRUCTION IN FAVOR OF LABOR
☛ The Labor Code took effect on November 1, 1974 (six months after its promulgation on May 1,1974)
☛ CONSTRUCTION IN FAVOR OF LABOR CLAUSE -this is with a view to apply
☛ SEVEN (7) BASIC RIGHTS OF WORKERS AS GUARANTEED BY THE CONSTITUTION (OCESHLP):
the Code to the greater number of employees to enable them to avail of the benefits under the law (Abella vs. NLRC). The working man’s welfare should be the primordial consideration.
1. Right to Organize 2. Right to Conduct Collective Bargaining or Negotiation with Management 3. Right to Engage in Peaceful Concerted Activities including strike in accordance with law 4. Right to Enjoy Security of Tenure 5.Right to Work Under Humane Conditions 6.Right to Receive a Living Wage
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This rule is applicable if there is a doubt as to the meaning of the legal or contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms.
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These laws should be interpreted with a view to the fact that they are remedial in nature, they are enacted to better the lot
LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon
SAN BEDA COLLEGE OF LAW
MEMORY AID in LABOR LAW Any form of reproduction of this copy is strictly prohibited!!!
and promote the welfare of the members of the laboring class. -
Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order. Courts adopt a liberal approach that favors the exercise of labor rights. The mandate under Art. 4 is simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is.
✍ ART 6. APPLICABILITY ☛ AGRICULTURAL OR FARM WORKER one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activities performed by a farmer as an incident to or in conjunction with such farming operations. -
There may be in one employer both agricultural as well as industrial workers.
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PURPOSE of the provision: intended to encourage workers to seek employment in agricultural enterprises instead of migrating to already overcrowded urban areas to find work in industrial establishments
☛ MANAGEMENT RIGHTS: (CPST) C P S T
Right to conduct business Right to prescribe rules Right to select employees Right to transfer or discharge employees
☛ MANAGEMENT PREROGATIVE Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including: HIRING, WORK ASSIGNMENTS, WORKING METHODS, TIME PLACE AND MANNER OF WORK, TOOLS TO BE USED, PROCESSES TO BE FOLLOWED, SUPERVISION OF WORKERS, WORKING REGULATIONS, TRANSFER OF EMPLOYEES, WORK SUPERVISION, LAY-OFF OF WORKERS, AND DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD)
Thus, so long as management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of employees under special law or under valid agreements, it shall be upheld. ✍ ART 5. RULES AND REGULATIONS - The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.
- The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code.
FARM EMPLOYERFARM WORKER RELATIONSHI P - The lease is one of labor with the agricultural laborer as the lessor of his services and the farm employer as the lessee - The agricultural worker works for the farm employer and for his labor he receives a salary or wage, regardless of whether the employer makes a profit.
TENANCY RELATIONSHIP
- It is the landowner who is the lessor and the tenant the lessee of agricultural land
- The tenant derives his income from the agricultural produce or harvest
LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon
Page 2 of 70
☛ WORKER -any member of the labor force, whether employed or unemployed
CHAPTER II EMANCIPATION OF TENANTS (Note: not included as per SC Memo)
✍ ART 7-11 -
Share tenancy has been abolished placing in its stead leasehold system.
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Under Art. 8, the land covered by operation land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in are.
☛ Present retention limits: -
5 hectares per landowner and 3 hectares per child provided the child is:
1. Is at least 15 years of age; and 2. Actually tilling the land or directly managing the farm
☛ EXCEPTIONS: -
those covered by homestead patents those covered by PD 27
☛ EMANCIPATION PATENT - is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation pf the tenant from the bondage of the soil.
☛ PROHIBITION AGAINST ALIENATION IS INTENDED TO: 1. Preserve the landholding in the hands of the owner-tiller and his heirs; 2. minimize land speculation; and 3. prevent a return to the regime of land ownership by a few.
BOOK ONE PRE-EMPLOYMENT TITLE I RECRUITMENT AND PLACEMENT OF WORKERS CHAPTER I GENERAL PROVISIONS ✍ ART 13. DEFINITIONS
☛ RECRUITMENT AND PLACEMENT - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; PROVIDED, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. (CEC-TUCP) (RCPA) -The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates the presumption.
✍ ART 16. PRIVATE RECRUITMENT ☛ ENTITIES AUTHORIZED TO RECRUIT 1. Public employment offices 2. Private recruitment entities; private employment agencies 3. Shipping or manning agents or representatives 4. The POEA 5. Construction contractors if authorized by the DOLE and the Construction Industry Authority 6. Members of the diplomatic corps (but hirings must also go thru POEA) 7. Other persons or entities as may be authorized by the DOLE secretary
☛ DOCUMENTATION OF WORKERS: 1. Contract Processing – workers hired thru the POEA shall be issued the individual employment contract and such other documents as may be necessary for travel 2. Passport Documentation 3. Visa Arrangement
✍ ART 17. (POEA) -
POEA has taken over the functions of the OEDB
☛ ADJUDICATORY FUNCTIONS OF THE POEA : a. All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and b. Disciplinary action cases and other special cases which are administrative in character,
involving employers, principals, contracting partners and Filipino Migrant Workers
☛ JURISDICTION TRANSFERRED TO THE LABOR ARBITERS OF THE NLRC : a. claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. ☛ Venue – Money claims or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated, at the option of the complainant. ☛ Compromise Agreement - Consistent with the policy encouraging amicable settlement of labor disputes, Sec 10, RA 8042 allows resolution by compromise of cases filed with the NLRC. ☛ PREMATURE TERMINATION OF CONTRACT - Where the worker’s employment contract is terminated long before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Int’l Construction Corp. vs. NLRC). HOWEVER, under R.A. 8042, if the illegal dismissal took place on or after July 15, 1995, the illegally dismissed overseas worker shall be entitled to the full reimbursement of his placement fee with interest at the rate of 12% per annum plus salary for the unexpired portion of his employment contract or for 3 mos. for every year of the unexpired term whichever is LESS.
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Claims for death and burial benefits involving seamen OCWs which the POEA has jurisdiction are not the same as the claims against the State Insurance Fund of the LC.
- The basis for the award of backwages is the parties” employment contract, stipulating the wages and benefits. -
The fact that the employee has signed a satisfaction receipt does not result in waiver; the law does not consider as
valid any agreement to receive less compensation than what the worker is entitled to recover. (MR Yard Crew Union vs. PNR)
✍ ART 18. BAN ON DIRECT-HIRING ☛ Direct hiring of Filipino workers by a foreign employer is not allowed. ☛ EXCEPTIONS : the members of the diplomatic corps; international organizations; such other employers as may be allowed by the Department of Labor and employment 1. name hirees – individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation or any agency
☛ RATIONALE OF THE PROHIBITION -
Filipino workers hired directly by a foreign employer, without government intervention may not be assured of the best possible terms and conditions of work. The foreign employer must also be protected and may chance upon a Filipino worker who do not possess sufficient knowledge for which he is employed.
☛ MINIMUM EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT:
2. 3. 4. 5. 6.
7. 8.
1. Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the Administration Free Transportation from point of hire to site of employment and return; Free emergency medical and dental treatment and facilities; Just causes for termination of the contract or of the services of the workers; Workmen’s compensation benefits and war hazard protection; Repatriation of worker’s remains and properties in case of death to the point of hire, or if this is not possible the possible disposition thereof Assistance on remittance of worker’s salaries, allowances or allotments to his beneficiaries; and Free and adequate board and lodging facilities or compensatory food allowance at prevailing cost of living standards at the jobsite.
✍ ART 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS
program and their relatives within the 4th degree of consanguinity or affinity; or 6. Those whose license has been previously canceled or revoked.
☛ MANDATORY REMITTANCE REQUIREMENTS: 1. Seamen or mariners: 80% of the basic salary; 2. Workers for Filipino Contractors and Construction Companies: 70% of the basic salary; 3. Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities: same as #2 4. All other professionals without board and lodging: 50% of the basic salary; 5. Domestic and other service of workers; 50% of the basic salary.
✍ ART 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS ☛ QUALIFICATIONS FOR PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM: 1. Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens; 2. Minimum capitalization of 1M in case of single proprietorship or partnership and a minimum of 1M paid-up capital for corporations; 3. Those not otherwise disqualified by law or these guidelines to engage in the recruitment and placement of workers for overseas employment ☛ DISQUALIFICATIONS: 1. Travel agencies and sales agencies of airline companies; 2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency. 4. Persons, partnerships, or corporations which have derogatory records; 5. Persons employed in the Department of Labor or in other government agencies directly involved in overseas employment
CHAPTER II REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES ✍ ART 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY -
No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity.
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Licensees or holders of authority or their duly authorized representatives may as a rule, undertake recruitment and placement activities only at their authorized official addresses.
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Change of ownership or relationship of single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license.
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All overseas landbased workers shall be provided both life and personal accident insurance.
☛ GROUNDS FOR DISCIPLINARY ACTION (Under the MWA of 1995) ; 1. Commission of a felony punishable by the laws of the Philippines or by the host country; 2. Drug addiction or possession or trafficking of prohibited drugs; 3. Desertion or abandonment; 4. Drunkenness, especially where the laws of the of the host country prohibit the same; 5. Gambling, especially where the laws of the host country prohibit the same; 6. Initiating or joining a strike or work stoppage where the laws of the host country prohibit strikes or similar actions; 7. Creating trouble at the worksite or in the vessel; 8. Embezzlement of company funds or of money an properties of a fellow worker entrusted for delivery to kins or relatives in the Philippines; 9. Theft or robbery; 10. Prostitution; 11. Vandalism or destroying company property;
12. Gunrunning or possession of deadly weapons; 13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency; and 14. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker.
✍ ART 31. BONDS -
Cash bond filed by applicants for license or authority is not subject to garnishment by judgment creditor of agency
✍ ART 32. FEES TO BE PAID BY WORKERS -
Suspension or cancellation of licenses may include award of damages to repair the injury caused to its victims.
✍ ART 34. PROHIBITED PRACTICES -
A supplementary contract beneficial to worker not violative of protection afforded by the State to workers.
✍ ART 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY ☛ NON-LICENSEE OR NON-HOLDER OF AUTHORITY - any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.
MISCELLANEOUS PROVISIONS ✍ ART 38. ILLEGAL RECRUITMENT (as per RA 8042 otherwise known as the Migrant Workers’ Act of 1995) ☛ ILLEGAL RECRUITMENT - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not when undertaken by a non-licensee or non-holder of authority. PROVIDED that any such non-licensee or non-holder of authority who in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the commission of prohibited acts whether committed by a non-licensee or non-holder of authority or a licensee or holder of authority.
☛ PROHIBITED PRACTICES: (CFGIIEOFSBWF) C F G I
I
E
O F S B W
CHAPTER III
F
to charge or accept amount beyond amount allowed by law to furnish or publish false notice or information in relation to Recruitment and Placement to give any false notice and information or commit any act of misrepresentation to secure license or authority Induce or attempt to induce workers to quit employment to offer him another except if the transfer is to liberate a worker from oppressive terms and conditions of employment (NOTE: it is not necessary that worker was actually induced or did quit employment) to influence or attempt to influence any person or entity not to employ any worker who has not applied for employment in his agency to engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Phil. Obstruct or attempt to obstruct inspection by Secretary Fail to file reports Substitute or alter employment contracts Become officer or Board member of corporation engaged in travel agency Withhold or deny travel documents before the departure for monetary or financial consideration other than those authorized by the Code. Failure to actually deploy without valid reason as determined by the DOLE
F
Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault
☛ THE QUALIFYING CIRCUMSTANCES THAT WOULD MAKE ILLEGAL RECRUITMENT AS A CRIME INVOLVING ECONOMIC SABOTAGE ARE : When committed by a SYNDICATE i.e., if it is carried out by a group of three (3) or more persons conspiring and confederating with one another; or (a) When committed in a LARGE SCALE i.e., if it is committed against three (3) or more persons
TITLE II EMPLOYMENT OF NON-RESIDENT ALIENS ✍ ART 40. EMPLOYMENT PERMIT OF NON-RESIDENT ALIENS -Foreigners or domestic and foreign employers desiring to employ aliens must secure employment permit from the DOLE upon determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the alien is desired. -
Foreigners may not be employed in certain nationalized business.
- a non-resident alien worker and the employer shall bind themselves to train at least 2 Filipino understudies.
☛ VENUE OF ACTIONS ON ILLEGAL RECRUITMENT:
☛ PROHIBITION EMPLOYMENT OF ALIENS
1. RTC of the province or city where the offense was committed; or 2. where the offended party resides at the time of the commission of the offense → at the option of the complainant
Section 2-A of the Anti-Dummy Law prohibits the employment of aliens in establishment or entities which have under their name or control a right, franchise, privilege, property or business the exercise or enjoyment of which property or business the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned by such citizens.
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These circumstances only qualify. They do not define the offense themselves
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Recruitment and placement activities of agents or representatives appointed by a licensee, whose appointments were not previously authorized by the POEA shall likewise constitute illegal recruitment.
ART. 38 ( c ) declared unconstitutional since only a judge may issue search warrant/ warrant of arrest. The Sec. Of Labor may only recommend not issue. However, Closure of establishments of illegal recruiters may still be ordered by Secretary of Labor, same being essentially administrative and regulatory in nature.(Salazar vs. Achacoso and Marquez)
☛ EXCEPTIONS PROHIBITION: a. b.
AGAINST
TO
THE
where the Secretary of Justice specifically authorizes the employment of technical personnel; or where the aliens are elected members of the board of directors or governing body of corporations or association in proportion to their allowable participation in the capital of such entities.
☛ PRESCRIPTIVE PERIOD Illegal Recruitment cases under RA 8042 shall prescribe in five (5) years Provided, however, That illegal recruitment cases involving economic sabotage shall prescribe in twenty (20) years.
BOOK TWO
HUMAN RESOURCES DEVELOPMENT TITLE I NATIONAL MANPOWER DEVELOPMENT PROGRAM CHAPTER I NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLELENTATION ✍ ART 45. DEFINITIONS ☛ MANPOWER - that portion of the nation’s population which has actual or potential capability to contribute directly to the production of goods and services. ☛ ENTREPRENEURSHIP - training for selfemployment or assisting individual or small industries within the purview of this the LC.
TITLE II TRAINING AND EMPLOYMENT OF SPECIAL WORKERS CHAPTER I APPRENTICES
binds himself to train the apprentice and the apprentice in turn accepts the terms of training ☛ ON-THE-JOB TRAINING – the practical work experience through actual participation in productive activities given to or acquired by an apprentice ☛ HIGHLY TECHNICAL INDUSTRIES – trade, business, enterprise, industry or other activity, which is engaged in the application of advanced technology
✍ ART 59. QUALIFICATIONS OF APPRENTICES ☛ Qualifications of an Apprentice 1.
at least 15 years of age; provided those who are at least 15 years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations and the apprenticeship agreement shall be signed in his behalf by the parent or guardian or authorized representative of DOLE. 2. vocational aptitude/ capacity for appropriate test 3. ability to comprehend and follow oral and written instructions ✍ ART 60. EMPLOYMENT OF
APPRENTICES
Types of Special Workers: 1. Apprentice 2. Learners 3. Handicapped
✍ ART 58. DEFINITION OF TERMS ☛ APPRENTICESHIP - practical training on the job supplemented by related theoretical instruction ☛ APPRENTICE - worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter ☛ APPRENTICEABLE OCCUPATION - any trade, form of employment or occupation which requires more than 3 months of practical training on the job supplemented by related theoretical instruction
☛ APPRENTICESHIP AGREEMENT an employment contract wherein the employer
Only employers in highly technical industries may hire apprentices and only in apprenticeable occupations as determined by the Sec. Of Labor
☛ Requisites APPRENTICESHIP
for
a
VALID
1. QUALIFICATIONS OF THE APPRENTICE 2. APPRENTICESHIP AGREEMENT DULY EXECUTED AND SIGNED PROVIDING FOR COMPENSATION NOT LESS THAN 75% OF THE APPLICABLE MINIMUM WAGE, EXCEPT ON-THE-JOB TRAINING (OJT) 3.APPRENTICESHIP PROGRAM DULY APPROVED BY DOLE 4. PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS.
✍ ART 71. DEDUCTIBILITY OF TRAINING COSTS
☛ Requisites for tax deductions in case employers have apprenticeship programs:
learner as regular employee if he desires upon completion of learnership
1. Program duly recognized by the Department of Labor 2. Deduction shall not exceed 10% of direct labor wage 3. Pay his apprentices the minimum wage
✍ ART 72. APPRENTICES WITHOUT COMPENSATION
4. In case of pretermination of the apprenticeship agreement, the worker is not considered as a regular employee
4. Learner is considered as a regular employee in case of pretermination of contract after 2 mos. of training and the dismissal is without fault of learner
5. Highly technical industries and only in industrial occupation
5. Semi-skilled / industrial occupations
☛ Apprentices who may be hired without compensation: 1.those whose training on the job is required by the school; 2.Training Program Curriculum; 3.Requisite for Graduation; or 4.A requisite for Board Examination
CHAPTER II LEARNERS
Learners in piecework/ incentive - rate jobs are to be paid in full for the work done.
CHAPTER III HANDICAPPED WORKERS
✍ ART 73. LEARNERS DEFINED ☛ LEARNERS - persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time which shall not exceed 3 mos.
APPRENTICESHIP
LEARNERSHIP
1. Practical training on the job supplemented by related theoretical instruction.
1. Hiring of persons as trainees in semi-skilled and other industrial occupations which are nonapprenticeable and which may be learned thru practical training on the job in a relatively short period of time.
2. Not less than 3 months practical training on the job but not more than 6 months
2. Practical training on the job not to exceed 3 mos.
3. No Commitment to hire
3. With Commitment to employ the
✍ ART 78. DEFINITION ☛ HANDICAPPED WORKERS - Are those whose earning capacity is impaired by age or physical or mental deficiency or injury. -
Subject to the provisions of the Code, handicapped workers may be hired as regular workers, 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 were hired.
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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. Even a handicapped worker can acquire the status of a regular employee.
☛ Duration of employment - no minimum, no maximum. Dependent on agreement but is necessary that there is a specific duration
BOOK THREE CONDITIONS OF EMPLOYMENT
TITLE I WORKING CONDITIONS AND REST PERIODS CHAPTER I HOURS OF WORK ✍ ART 82. COVERAGE ☛
ELEMENTS OF EMPLOYEREMPLOYEE RELATIONSHIP:
1. selection and engagement of the employee 2. the payment of wages 3. the power of dismissal 4. the employer’s power to control the employee (with respect to the means and methods by which the work is to be accomplished) -
The last element as mentioned above is what is known as the CONTROL TEST whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. This last element is the most important index of the existence of the relationship.
☛ EMPLOYEE - A natural person who is hired, directly or indirectly, by a natural or juridical person to perform activities related to the business of the “hirer” who, directly or through an agent, supervises or controls the work performance and pays the salary or wage of the hire.
☛ MANAGERIAL EMPLOYEES - Refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other members of the managerial staff ☛ Note: Definition applies only to the 8hour Labor law ☛ FIELD PERSONNEL - Refer to nonagricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. ☛ WORKERS PAID BY RESULTS - Method of computing compensation based on the work completed and not on the time spent in working. ☛ PIECE-RATE METHOD - Where pay is dependent on unit of product finished, preferred where the work process is repetitive and the out put is standardized and easily countable. DOMESTIC HELPERS/ PERSONS RENDERING PERSONAL SERVICES - Perform services in the employers home which are usually necessary and desirable for the maintenance or enjoyment thereof, or ministers to the personal comfort, convenience or safety of the employer, as well as the members of the employer’s household. -
The existence of employment relationship is determined by law and not by contract.
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Whether or not an employer-employee relationship exists between the parties is a question of fact. The findings of the NLRC are accorded not only respect but finality if supported by substantial evidence.
☛ Employees Exempt from the Benefits of E-E Relationship 1. 2. 3. 4.
Government Employees Managerial Employees Field Personnel Family Members dependent on the employer for support 5. Domestic Helpers 6. Persons on the Personal Service of another 7. Workers Paid by Result ☛ GOVERNMENT EMPLOYEES - Refers only to employees of government agencies, instrumentalities or political subdivisions and of government corporations that are not incorporated under the Corporation Code, meaning those which have original charters.
☛ MANAGEMENT PREROGATIVE - except as otherwise limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place, and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers. -
Management prerogative recognizes the right of the employer to advance its interest to prescribe standards of work and impose reasonable quotas or work
assignments, and failure on the part of the employees to meet the requirement, impose in good faith, constitutes a just cause for his dismissal. -
New owner/management group has no obligation to re-employ workers who freely and voluntarily accepted their separation pay and other benefits. A change of ownership in a business concern is not proscribed by law.
work is with the knowledge of his employer or immediate supervisor 4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. - Only the maximum is prescribed, not minimum. Part- time work is therefore not prohibited.
✍ ART 83. NORMAL HOURS OF WORK - Shall not exceed 8 hours in a regular working day
☛ PURPOSE -
to safeguard the health and welfare of the laborer and in a way to minimize unemployment by utilizing different shifts
☛ REGULAR WORKING DAYS: The regular working days of covered employees shall not be more than five days in a workweek. The workweek may begin at any hour and on any day, including Saturday or Sunday, designated by the employer. ✍ ART 84. HOURS WORKED
SHALL INCLUDE: 1. All time during which an employee is required to be on duty or to be at a prescribed workplace; and 2. All time during which an employee is suffered or permitted to work
☛ PRINCIPLES IN DETERMINING HOURS WORKED: 1. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hour are spent in productive labor or involve physical or mental exertion; 2. An employee need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his workplace, to go elsewhere whether within or outside the premises of his workplace; 3. If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked if the
☛ ENGAGED TO WAIT - when waiting is an integral part of the job, it is compensable ☛ WAITING TO BE ENGAGED - idle time is not working time, not compensable
☛ WHEN COMPENSABLE:
TRAVEL
TIME
1. Travel from home to work- refers to ordinary work travel but where the worker is made to work on an emergency call and travel is necessary in proceeding to the workplace, the time spent on travel is compensable 2. Travel that is all in a day’s work- time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. 3. Travel away from home- travel that keeps an employee away from home overnight. Work hours of seamen are governed by the same rules as land based employees. Thus, they must show sufficient proof that said work is actually performed. Rest Periods of short duration during working hours shall be considered as hours worked. -
Preliminary activities compensable when controlled or required by employer and are pursued necessarily and primarily for the employer’s benefit,
✍ ART 85. MEAL PERIODS
☛ MEAL PERIODS 1. Should not be less than sixty (60) minutes, and is time-off/non-compensable 2. Under specified cases, may be less than sixty (60) minutes, but should not be less
than twenty (20) minutes an must be with full pay. 3. If less than twenty(20) minutes, it becomes only a rest period and is thus considered as work time
✍ ART 87. OVERTIME WORK
☛ NOTE: Employee must be completely relieved from duty. Otherwise, it is compensable as hours worked.
30% of 130% if on a special holiday/rest day 1. 25% of regular wage if done on a regular workday 2. 30% of 150% if on special holiday AND rest day 3. 30% of 200% if on a regular holiday
-
-
Mealtime is not compensable EXCEPT in cases where the lunch period or meal time is predominantly spent for the employer’s benefit or where it is less than 60 minutes. Employees may request that their meal period be shortened so that they can leave work earlier that the previously established schedule.
☛ REQUISITES : 1. The employees voluntarily agree in writing to a shortened meal period and are willing to waive the overtime pay for such shortened meal period; 2. No diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period; 3. Work does not involve strenuous physical exertion and they are provided with adequate coffee breaks; 4. The value of benefits is equal with the compensation due them for the shortened meal period 5. OT pay will become due and demandable after the new time schedule; and 6. The arrangement is of temporary duration. ✍ ART 86. NIGHT SHIFT DIFFERENTIAL ☛ NIGHT SHIFT DIFFERENTIAL -Additional compensation of not less than ten percent (10%) of an employee’s regular wage for every hour of work done between 10:00 PM and 6:00 AM, whether or not this period is part of the worker’s regular shift. -
☛ OVERTIME PAY- Additional compensation for work performed beyond eight (8) hours within the worker’s 24-hour workday.
☛ RATIONALE - employee is given OT pay because he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. -
☛ NOTE: OT pay will not preclude payment of night shift differential pay. -
- it serves as an inducement of employment
Meal periods during overtime work is not given to workers performing overtime for the reason that OT work is usually for a short period ranging from one to three hours and to deduct from the same one full hour as meal period would reduce to nothing the employee’s OT work.
☛ WORK DAY - the 24-hour period which commences from the time the employee regularly starts to work. e.g., if the worker starts to work 8 am today, the workday is from 8am today up to 8 am tom. -
The minimum normal working hours fixed by the Act need not be continuous to constitute the legal working day
-
Express approval by a superior is not a prerequisite to make overtime work compensable. HOWEVER, written authority after office hours during rest days and holidays are required for entitlement to compensation.
-
The right to OT pay cannot be waived. Such waiver is contrary to law and public policy.
If work done between 10 PM and 6 AM is overtime work, then the 10% night shift differential should be based on his overtime rate.
☛ RATIONALE
As a rule, cannot be waived, as it is intended to benefit laborers and employees. But when the waiver is made in consideration of benefits and privileges which may even exceed the overtime pay, the waiver may be permitted.
☛ EXCEPTIONS:
1. When the waiver stipulates higher payment or rate of OT pay; or 2. Where the contract of employment requires work for more than eight hours of work at specified wage per day providing for a fixed hourly rate or that the daily wages include overtime pay. ☛ COMPRESSED WORKWEEK -allowable under the following conditions: 1. It is voluntary on the part of the worker 2. There will be no diminution of the weekly or monthly take-home pay and fringe benefits of the employees; 3. The value of the benefits that will accrue to the employees under the proposed schedule is more than or at least commensurate with the one-hour OT pay that is due them during weekdays based on the employee’s quantification 4. The one-hour OT pay will become due and payable if they are made or permitted to work on a day not scheduled for work on the compressed work week 5. The work does not involve strenuous physical exertion and employees must have adequate rest periods 5. The arrangement is of temporary duration.
✍ ART 88. UNDERTIME NOT OFFSET BY OVERTIME Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation.
W
N U
N C
N
✍ ART 90. REGULAR WAGE - include the cash wage only, without deduction on account of facilities provided by the employer
CHAPTER II WEEKLY REST PERIOD ✍ ART 91. RIGHT TO A WEEKLY REST DAY -
Employees should be provided a rest period of not less than twenty four (24) consecutive hours after every six (6) consecutive normal work days.
-
Employer shall schedule the weekly rest day of his employees subject to collective bargaining agreement. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. But when such preference will prejudice the operations of the undertaking and the employer cannot normally result to other remedial measures, the employer may so schedule the weekly rest day that meets the employee’s choice for at least two (2) days a month
☛ RATIONALE -
An employee’s regular pay rate is lower than the overtime rate. Offsetting the undertime hours against the overtime hours would result in undue deprivation of the employee’s extra pay for overtime work.
✍ ART 89. EMERGENCY OVERTIME WORK ☛ WHEN WORKER MAY BE REQUIRED TO RENDER OT: (WNUNCN)
1. Country is at war or any other national/local emergency has been declared by the Chief Executive/Congress 2. Necessary to prevent loss of life/property/ in case of actual/impending emergency in the locality 3. There is urgent work to be performed on machines, installations, or equipment in order to avoid serious loss/damage to the employer or some other causes of similar nature 4. Work is necessary to prevent loss/damage to perishable goods; and 5. where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. 6. when it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon
✍ ART 92. WHEN EMPLOYER MAY REQUIRE WORK ON A REST DAY ☛
WHEN EMPLOYEE MAY BE REQUIRED TO RENDER WORK ON A REST DAY:
1. In case of actual or impending emergencies caused by serious accident, fire, flood typhoon, earthquake epidemic or other disaster or calamity, to prevent loss of life or property or in cases of force majeure or imminent danger to public safety 2. urgent work to be performed on the machinery, equipment or installation to avoid serious loss which the employer would otherwise suffer 3. abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures 4. prevent serious loss of perishable goods 5. nature of work requires continuous operation for seven days a week 6. work is necessary to avail of favorable weather or environmental conditions where performance or quality of work depends upon them
✍ ART 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK -
this article does not prohibit a stipulation in the CBA for higher benefits
☛ SPECIAL HOLIDAYS 1. All Saint’s Day -November 1 2. Last Day of the Year-December 31 3. And all other days declared by law or ordinances to be a special holiday or nonworking day NOTE: worked = regular wage plus 30% premium pay not worked = none
☛ ADDITIONAL COMPENSATION FOR WORK ON A REST DAY, SUNDAY OR HOLIDAY WORK: 1. Work on a scheduled rest day - 30% of regular wage 2. No regular workdays and rest days -30% of regular wage for work on Sundays & Holidays 3. Work on Special Holidays -30% of regular wage 4. Holiday Work falls on Scheduled Rest Day 50% of regular wage
CHAPTER III HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES
✍ ART 94. RIGHT TO HOLIDAY PAY ☛ HOLIDAY PAY - A day’s pay given by law to an employee even if he does not work on a regular holiday. It is limited to the ten (10) regular holidays listed by law. - employee should not have been absent without pay on the working day preceding the regular holiday Art. 94(b) refers to regular holidays, special holidays are taken care of under Art. 93. ☛ PREMIUM PAY - Additional compensation for work performed on a scheduled rest day or holiday.
☛ REGULAR HOLIDAYS: 1. 2. 3. 4. 5. 6. 7.
New Year’s Day -January 1 Maundy Thursday -Movable date Good FridayMovable date Araw ng Kagitingan -April 9 Labor Day -May 1 Independence Day -June 12 National Heroes Day`-Last Sunday August 8. Bonifacio Day-November 30 9. Christmas Day-December 25 10. Rizal Day-December 30 Note: Compensable unworked.
whether
worked
of
or
☛DOUBLE HOLIDAY PAY 200% of the basic wage provided, he works on that day and was present or on leave with pay on the preceding workday. If on leave without pay, rate still applies if leave is authorized. 2. 400% if he worked – as per DOLE Memo if there are 2 regular holidays in one day eg. April 9 and Good Friday. Provided the employee worked on the day prior to the regular holiday or on leave with pay or on authorized absence. 3. If there are two succeeding holidays eg., Maundy Thursday and Good Friday, the employee must be present the day before the scheduled regular holiday to be entitled to compensation to both otherwise, he must work on the first holiday to be entitled to holiday pay on the second regular holiday. 1.
REGULAR HOLIDAY
SPECIAL HOLIDAY
- compensable even
- not compensable if
if unworked subject to certain conditions
considered integrated in their wages on the basis of the average monthly share of each employee for the past 12 months immediately preceding the abolition.
unworked
- limited to the 10 enumerated by the LC
- not exclusive since law may provide for other special holidays
- rate is twice the regular rate if worked
- rate is 130% if worked
✍ ART 95. RIGHT INCENTIVE LEAVE
TO
TITLE II WAGES CHAPTER I PRELIMINARY MATTERS
SERVICE
☛ SERVICE INCENTIVE LEAVE (SIL) - Five (5) days leave with pay for every employee who has rendered at least one (1) year of service.
☛ BUT DOES NOT APPLY TO THOSE WHO ARE: already enjoying the said benefits; or enjoying vacation leave with pay for at least 5 days those employed in establishments regularly employing less than 10 employees those employed in establishments exempted from granting this benefit by the Secretary of Labor. ☛ ONE (1) YEAR OF SERVICE.- service within 12 months, whether continuous or broken, reckoned from the date the employee started working including authorized absences and paid regular holidays unless the number of working day in the establishment as a matter of practice or policy, or provided in the employment contract is less than 12 mos. -
SIL is commutable i.e., convertible to cash- the cash equivalent is aimed primarily at encouraging workers to work continuously and with dedication to the company.
✍ ART 96. SERVICE CHARGES
☛
TO BE DISTRIBUTED TWICE MONTH AND AT THE RATE OF:
A
1. 85% for all covered employees to be equally distributed among them 2. 15% for management (may answer for losses and breakages or distributed to management) -
If collection of service charges is abolished, the share of covered employees shall be
✍ ART 97. DEFINITION ☛ WAGE - the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis or other method or calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done or for services rendered or to be rendered and includes the fair and reasonable value of board, lodging, or other facilities customarily furnished by the employer to the employee. FAIR DAY’S WAGE FOR A FAIR DAY’S LABOR - if there is no work performed by the employee, there can be no wage or pay unless the laborer was able, willing, and ready to work but was prevented by management or was illegally locked out, suspended or dismissed.
WAGE - compensation manual labor -
Not subject execution
SALARY for
to
- denotes higher degree of employment - subject to execution (Gaa vs. CA)
☛ FACILITIES – shall include all articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or services primarily for the benefit of the employer or necessary to the conduct of the employer’s business.
FACILITIES
SUPPLEMENTS
- Are items of expense necessary for the laborer’s and his family’s existence and subsistence
- Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings wages
- part of the wage
- independent of the wage
- deductible from the wage
- not wage deductible
3. It is not due to an error in the construction /application of a doubtful or difficult question of law. -
☛ BONUS - A supplement or employment benefit given under certain conditions, such as success of the business or greater production or output. As a rule, it is an amount granted voluntarily to an employee for his industry and loyalty which contributed to the success and realization of profits of the employer’s business. Therefore, from a legal point of view, it is not a demandable and enforceable obligation. Unless, it was promised to be given without any conditions imposed for its payment, as such, it is deemed part of the wage.
✍ ART. 98. APPLICATION OF TITLE ☛ This Title shall not apply to the following: 1. household or domestic helpers 2. homeworkers engaged in needle-work 3. workers employed in any establishment duly registered with the National Cottage Industry 4. Workers in any duly registered cooperatives
CHAPTER II MINIMUM WAGE RATES ✍ ART 100. PROHIBITION AGAINST ELIMINATION OR DIMUNITION OF BENEFITS ☛ LEGAL REQ’TS. BEFORE FACILITIES CAN BE DEDUCTED FROM THE EMPLOYEES’ WAGES: 1. Proof that such facilities are customarily furnished by the trade ; 2. Voluntarily Accepted in writing by the employee 3. Charged at Fair & Reasonable Value ☛ THE NON-DIMINUTION RULE -the benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten.
But even in cases of error, it should be shown that the correction is being done soon after the discovery of the error.
☛ 13TH MONTH PAY (OR “ITS EQUIVALENT”) -additional income based on wage required by P.D. 851 which is equivalent to 1/12 of the total basic salary earned by an employee within a calendar year. - may be given anytime but not later than Dec. 24
COVERAGE: - All rank-and-file employees regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided, that they have worked for at least one (1) month during the calendar year.
FORMS: 1. 2. 3. 4.
Christmas bonus midyear bonus profit sharing payments; and other cash bonuses amounting to not less than 1/12 of its basic salary.
-
Difference of opinion on how to compute the 13th month pay does not justify a strike
-
It must always be in the form of legal tender . Free rice, electricity cash and stock dividends, COLA not equivalent
The rule is applicable if it is shown that the grant of the benefit is: 1. based on an express policy, or 2. has ripened into practice over a long period of time, and the practice is consistent and deliberate.
✍ ART 101. PAYMENT BY RESULTS
☛ CATEGORIES OF PIECE-RATE WORKERS:
✍ ART 103. TIME OF PAYMENT
1. those who are paid piece rates as prescribed in Piece Rate Orders by the DOLE 2. Those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE
-
☛ WORKERS PAID ON PIECE-RATE BASIS shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.
BENEFITS PAYABLE TO PIECE-RATE WORKERS: 1. Applicable statutory minimum daily rate; 2. Yearly service incentive leave of five days with pay; 3. Night shift differential pay 4. Holiday pay 5. Meal and rest periods 6. OT pay (conditional) 7. Premium pay (conditional) 8. 13th month pay 9. other benefits granted by law, individual or collective bargaining agreement or company policy or practice.
CHAPTER III PAYMENT OF WAGES ✍ ART 102. FORMS OF PAYMENT ☛ EMPLOYER CANNOT PAY HIS WORKERS BY MEANS OF: 1. 2. 3. 4. 5. 6. 7.
promissory notes vouchers coupons tokens tickets chits or any object.
☛ WHEN TO PAY: at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days force majeure or other circumstances beyond the employer’s control, payment must be made immediately after such occurrence have ceased.
✍ ART.104. PLACE OF PAYMENT ☛ WHERE TO PAY: -
Shall be made at or near the place of undertaking,
☛ EXCEPTIONS: 1. When payment cannot be effected at or near the place of work by reason of deterioration of peace and security 2. When the employer provides for free transportation to the employees back and forth; 3. And under analogous circumstances -
payment of wages in bars, night or day clubs, massage clinics or similar establishments are prohibited except for the workers therein.
PAYMENT THRU BANKS: REQUISITES : 1. There must be written permission of the majority of the employees concerned in an establishment; 2. The establishment must have 25 or more employees; and 3. The bank must be located within one kilometer radius to the bank from the location of the establishment - payment through the ATM is allowed
GENERAL RULE: -
payment by legal tender
EXCEPTIONS: - checks or money orders may be paid if: 1. the same is customary on the date of effectivity of the LC; 2. necessary because of special circumstances; or 3. as stipulated in the CBA
✍
ART 105. DIRECT PAYMENT OF WAGES
☛ TO WHOM PAID
-
wages shall be paid directly to the workers to whom they are due.
☛ EXCEPTIONS: a. in case of force majeure/special circumstances, payment may be made through another person under written authority where the worker has died, the b. employer may pay the wages of the deceased worker to the heirs of the latter, through the Secretary of Labor or his representative, without the necessity of intestate proceedings, after the heirs have executed an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all others
standards, free exercise of the right to selforganization, security of tenure and social and welfare benefits. -
JOB C O NT R A CT IN G
✍ ART 106. CONTRACTOR OR SUBCONTRACTOR ☛ 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 persons are performing activities which are directly related to the principal business of such employer. ☛ INDEPENDENT CONTRACTOR - one who exercises independent employment and contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result thereof. -
A mere statement in a contract with a company that laborers who are paid according to the amount and quality of work are independent contractors does not change their status as mere employees in contemplation of labor laws.
☛ REQUISITES FOR A CONTRACTING OR SUBCONTRACTING TO BE : 1. where the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; 2. the contractor or subcontractor has substantial capital or investment; and 3. the agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health
Substantial capital need not be coupled with investment in tools or equipment. This is clear from the use of the conjunction “or”. LABOR ONLY CONTRACTING
1. No E- E relationship exist between employer and the contractor’s employee except when the contractor or subcontractor fails to pay the wages of his employees
1. Employer is treated as direct employer of the person recruited in all instances
2. liability is limited to unpaid wages and other labor standards violations
2. liable to all rights duties and liabilities under labor standards laws including the right to self- organization
3. Permissible
3. Prohibited by law
4. Contractor has substantial capital or investment
4. Contractor has no substantial capital/ investment
☛ WORKING CONDITIONS - Refers to the terms and circumstances affecting the employment of an employee, including policies, programs and regulations governing his employment status, work, and work relationships. They are, as a rule, determined by the employer.
✍ ART. 110. WORKER PREFERENCE IN CASE OF BANKRUPTCY -
This Article did not sweep away the overriding preference accorded under the
scheme of the Civil Code to tax claims of the government. -
just a preference, must yield to special preferred credit, e.g. secured creditors The formal declaration of insolvency or bankruptcy or a judicial liquidation of the employer’s business is a condition sine qua non to the operation of the preference accorded to workers under Art. 110.
CHAPTER IV PROHIBITIONS REGARDING WAGES ✍ ART 112. NON-INTERFERENCE IN DISPOSAL OF WAGES In relation to the Civil Code: Art. 1705. The laborer’s wages shall be paid in legal currency. Art. 1706. Withholding of the wages except for a debt due, shall not be made by the employer Art. 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done. Art. 1708. The laborer’s wages shall not be subject to execution or attachment except for debts incurred for food, shelter, clothing, and medical attendance. Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
☛ PROHIBITIONS REGARDING WAGES: 1. Payment of wages with less frequency than once (1) a month. 2. Limitations/Interference by the employer with the employees freedom to dispose of his wages. 3. Forcing, Compelling/Obliging employees to purchase merchandise , commodities or other properties from the employer or from any other person, or to make use of any store or service of such employer or any other person 4. Withholding of wages 5. Deduction of wages as consideration of a promise of employment or retention in employment 6. Refusal to pay/ Reduction of wages and benefits, discharge/ discrimination against any employee as retaliatory measures against any employee who has filed any complaint or instituted any proceedings against his employer
✍ ART 113. WAGE DEDUCTION ☛ ALLOWABLE DEDUCTIONS: WITH EMPLOYEES CONSENT: 1. 2. 3. 4. 5.
SSS Payments MEDICARE Contributions to PAG-IBIG Funds value of meals and others payments to third persons with employees consent 6. deduction of absences W/OUT EMPLOYEES CONSENT: 1. Worker’s insurance acquired by the employer 2. Union Dues, where the right to check-off has been recognized by the employer 3. Cases where the employer is authorized by law or regulations issued by the Secretary of Labor 4. debts of the employee to the employer which have become due and demandable
✍ ART 114. DEPOSITS FOR LOSS OR DAMAGE -
Deposits for Loss or Damage to tools, materials and equipment supplied by the employer shall not be made, EXCEPT when the trade, occupation or businesses of the employer recognizes, or considers the practice of making deductions or requiring deposits necessary or desirable.
☛ REQUISITES FOR DEDUCTION FOR LOSS OR DAMAGE : 1. employee clearly shown responsible 2. opportunity to show cause to show why deduction should not be made
3. deduction is fair and reasonable and shall not exceed the actual loss or damage
4. does not exceed 20% of the employees wages in a week.
CHAPTER V WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION ✍ ART 122. CREATION OF THE REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARDS
☛ WHO MAY SET MINIMUM WAGE:
1. Regional Tripartite Wages and Productivity Board 2. Congress
distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation. ☛ CORRECTING WAGE DISTORTION
MINIMUM WAGE - The lowest wage rate fixed by law that an employer can pay his employees.
✍ ART. 123 WAGE ORDER ☛ WAGE ORDER – an order issued by the Regional Board whenever the conditions in the region so warrant after investigating and studying all pertinent facts and based on the standards and criteria prescribed by the LC, the Regional Board proceeds to determine whether to issue the same or not. ☛ EFFECTIVITY of a wage Order – it shall take effect after 15 days from the its complete publication in at least one newspaper of general circulation in the region. ☛ FREQUENCY of a wage order - Wage Order issued by the Board may not be disturbed for a period of 12 months from its effectivity and no petition for wage increase shall be entertained during said period. EXCEPTION: When Congress itself issues a law increasing wages.
✍ ART 124. STANDARDS/CRITERIA FOR MINIMUM WAGE FIXING ☛ FACTORS FOR DETERMINING REGIONAL MINIMUM WAGE RATES (DACNNIPFEE) 1. Demand for living wages; 2. Wage Adjustment vis-a vis the consumer price index; 3. Cost of living and changes or increases therein; 4. Needs of workers and their families; 5. Need to induce industries to invest in the countryside; 6. Improvements in standards of living; 7. Prevailing wage levels; 8. Fair Return of the capital invested and capacity to pay of employers; 9. Effects on Employment Generation and Family Income; 10. Equitable Distribution of Income & Wealth along the imperatives of economic and social development ☛ WAGE DISTORTION - situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the
Unionized Establishment 1. Negotiate to correct the distortion. 2. Any dispute arising therefrom should be resolved through grievance procedure under their CBA. 3. If the dispute remains unresolved, through voluntary arbitration. Establishments without Unions 1. The employers and workers shall endeavor to correct the distortion. 2. Any dispute arising therefrom shall be settled through the NCMB and 3. If it remains unresolved after 10 days of conciliation, it shall be referred to the NLRC. -
Wage distortion is non- strikeable.
☛ Is the employer legally obliged to try & correct a wage distortion? It appears so. Article 124 of the Code provides that “ the employer and the union shall negotiate to correct the distortions.” If there is no union, “ the employer and the workers shall endeavor to correct such distortions.
☛ Must the previous pay gaps be restored? While that is the aim, it need not necessarily be restored to the last peso. An appreciable differential, a significant pay gap should suffice as correction of the distortion.
CHAPTER VII ADMINISTRATION AND ENFORCEMENT ✍ ART. 128. VISITORIAL AND
ENFORCEMENT POWER ✍ ART. 129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS -
Under Art. 129, the Regional Director is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages and other monetary claims and benefits, including legal interests.
☛ REQUISITES : 1. The claim is presented by an employee or person employed in domestic or household service or househelper; 2. The claim arises from employer-employee relations; 3. The claimant does not seek reinstatement; and 4. The aggregate money claim of each employee or househelper does not exceed P5, 000.00 -
Access to employer’s records and premises → the day/night whenever work is being undertaken therein → includes the right to copy therefrom, to question any employee & investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Code and of any labor law, wage order, or rules and regulations
-
Issue Compliance Orders (ART. 128) →based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection
-
Issue Writs of Execution (ART. 128) →for the enforcement of orders →except in cases where the employer contests the findings of the said labor officers and raises issues supported by documentary proofs which were not considered in the course of inspection.
-
Order Work Stoppage/Suspension of Operations → when non-compliance with the law or implementing rules and regulations poses grave & imminent danger to the health and safety of the workers in the workplace. Conduct Hearings within 24 hours → to determine whether an order for stoppage of work/suspension of operations shall be lifted or not. → employer shall pay the employees concerned their salaries in case the violation is attributable to his fault Require employers to keep and maintain Employment Records -→ as may be necessary in aid of his visitorial and enforcement powers
-
-
ART 128
ART 129
1. Visitorial and enforcement power of the Secretary of Labor /his duly authorized representatives exercised through routine inspections of establishments
1. Power of the Regional Director or any duly authorized hearing officers to hear and decide matters involving the recovery of wages, upon complaint of any interested party
2. requires the existence of E-E Relationship
2. E-E relationship not necessary since it should not include a claim for reinstatement
3. No limit as to amount of claim
3. Aggregate claim of each complainant does not exceed P5,000
4. Appeal is with Sec.of Labor ; period of appeal is 10 calendar days
4. Appeal with NLRC; period of appeal is 5 calendar days
5. Person exercising the power is the Sec. Of Labor or any of his duly authorized representatives who may or may not be a regional director
5. The power is vested upon a regional director or any duly authorized hearing officer of the DOLE.
TITLE III WORKING CONDITIONS FOR SPECIAL GROUP OF EMPLOYEES CHAPTER I EMPLOYMENT OF WOMEN ✍ ART 130. NIGHTWORK PROHIBITION -
No woman , regardless of age, shall be employed or permitted or suffered to work, with or without compensation in any :
1. Industrial undertaking between 10PM-6AM 2. Commercial/Non-Industrial undertaking between 12 MN-6AM 3. Agricultural undertaking at nighttime unless, she is given a period of rest of not less than 9 consecutive hours
✍ ART 131. EXCEPTIONS 1. Actual/Impending Emergencies caused by serious accident, flood, typhoon, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety 2. Urgent work to be performed on machineries, equipment or installation, to avoid serious loss 3. Work is necessary to prevent serious loss of perishable goods 4. Where she holds a responsible position of managerial/technical nature/engaged to provide health and welfare service 5. Nature of the work requires the manual skill and dexterity of women workers & cannot be performed with equal efficiency by male workers 6. Where women workers are immediate family members of the family operating the establishment or undertaking 7. Analogous cases ✍ ART 132. FACILITIES FOR WOMEN ☛The Secretary of Labor may require employers to: 1. Provide seats proper for women and permit them to use the seats when they are free from work or during office hours provided the quality of the work will not be compromised; 2. To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; 3. To establish a nursery in the establishment; 4. To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like
1. Employee notified her employer of her pregnancy of the probable date of her childbirth 2. Full payment be advanced by the employer within 30 days from the filing of the maternity leave application 3. That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits 4. That the maternity benefits shall be paid only for the first four (4) deliveries or miscarriages 5. That the SSS shall immediately reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer 6. That if an employee member should give birth or suffer a miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. -
ART 133 (b) subsists, i.e., the maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, or miscarriage, which renders the woman unfit for work , unless she has earned unused leave credits from which such extended leave may be charged.
☛ LIMIT OF THE BENEFIT: Applies only for the first four deliveries irrespective of who is the father of the children, and may not be availed of in addition to sickness benefit under the Social Security program. ☛ RA 8187 (PATERNITY LEAVE)
✍ ART. BENEFITS
133
MATERNITY
LEAVE
☛ MATERNITY LEAVE UNDER THE SSS LAW A female member, who need not be legally married, who has paid for at least three (3) monthly contributions in the 12-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 credit for 60 days or 78 days, in case of caesarian delivery.
REQUISITES :
-
This law grants paternity leave of seven day with full pay to all married male employees in the private and public sectors.
- It is available only for the first four deliveries of the legitimate spouse with whom the husband is cohabiting.
DELIVERY – includes childbirth, miscarriage, or abortion. Purpose: to enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child.
☛ CONDITIONS :
2.
1. he is an employee at he time of the delivery of his child; 2. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage; 3. he has applied for paternity leave ; and 4. his wife has given birth or suffered a miscarriage -
Paternity leave, if not availed of, is not convertible to cash.
WIFE - refers to the lawful wife which means the woman who is legally married to the male employee concerned. -
Where the male employee is already enjoying the paternity leave by reason of any law, decree, executive orders or any contract, agreement or policy between employer and employee and the existing paternity benefit is greater, the greater benefit shall prevail; if lesser, the existing benefit shall be adjusted to the extent of the difference.
✍ ART 135. PROHIBITED -
3.
✍ ART 136. STIPULATION AGAINST MARRIAGE - it shall be unlawful for an employer to require as a condition for employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly 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.
✍ ART 138. CLASSIFICATION CERTAIN WOMEN WORKERS -
DISCRIMINATION
It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
☛ Acts of Discrimination: of equal value. employee solely on the account of their sexes.
Sexual Harassment in a Work-Related or Employment Environment : 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, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee
OF
Any woman who is permitted to work or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishment, under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor, shall be considered as an employee of such establishment for purposes of labor and social legislation.
CHAPTER II EMPLOYMENT OF MINORS
a. Payment of a lesser compensation for work b. Favoring a male employee over a female
the above acts would impair the employee’s rights or privileges under existing labor laws or The above acts would result in an intimidating, hostile, or offensive environment (Sec. 3[a], RA No. 7877)
✍ ART 139. MINIMUM EMPLOYABLE AGE -
Any person between ages 15 and 18 may be employed in any non hazardous work.
☛ Exception and condition on the employment of a child below 15: 1. When the child works directly under the sole responsibility of his/her parents or legal guardian who employs members of his/her family only under the following conditions: a. employment does not endanger the child’s life, safety, health and morals b. employment does not impair the child’s normal development c. the parent/legal guardian provides the child with the primary and/or secondary education prescribed by DECS
2. Where the child’s employment or participation in public entertainment or information through cinema, theater, radio, or television is essential, provided that: a.
b. c.
employment does not involve advertisements or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts or exhibiting violence; There is a written contract approved by the DOLE; and The conditions prescribed for the employment of minors {above stated} are met.
NONHAZARDOUS WORK OR UNDERTAKING – one where the employee is not exposed to any risk which constitutes an imminent danger to his safety and health.
☛ HAZARDOUS WORKPLACES: 1. Where the nature of the work exposes the workers to dangerous environmental elements, contaminants or work conditions; 2. Where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing, and mechanized farming; 3. Where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products; 4. Where the workers use or are exposed to heavy or power-driven machinery or equipment; and 5. Where the workers use or are exposed to power-driven tools,
CHAPTER III EMPLOYMENT OF HOUSEHELPERS ☛ RIGHTS OF HOUSEHELPERS: 1. minimum cash wage 2. non-assignment to non- household work 3. opportunity for education: if under 18 (cause of education part of compensation) 4. board/ lodging, medical attendance 5. just and humane treatment 6. indemnity for unjust termination of services 7. just causes for termination 8. right not to be required to work more than 10 hours a day 9. for days vacation each month 10. to regular wages if employed in industrial or commercial or agricultural undertaking 11. funeral expenses must be paid by employer if the househelper has no relatives with
sufficient means in the place where the head of the family lives. 12. at least elementary education 13. employment certification
CHAPTER IV EMPLOYMENT OF HOMEWORKERS ☛ INDUSTRIAL HOMEWORK - a system of production under which work for an employer or contractor is carried out by a homeworker at his home. ☛ INDUSTRIAL HOMEWORKER - a worker who is engaged in industrial homework
BOOK FOUR HEALTH, SAFETY AND SOCIAL WELFARE BENEFITS TITLE I MEDICAL, DENTAL AND OCCUPATIONAL SAFETY CHAPTER I MEDICAL AND DENTAL SERVICES ✍ ART 156. FIRST-AID TREATMENT ☛ FIRST-AID TREATMENT – adequate, immediate, and necessary medical and dental attention or remedy given in case of injury or illness suffered by a worker during employment, irrespective of whether or not such injury or illness is work-connected, before a more extensive medical and/or dental treatment can be secured. ☛ FIRST AIDER – any person trained and duly certified as qualified to administer first aid by the Phil. National Red Cross or by any other organization accredited by the former.
TITLE II EMPLOYEES’ COMPENSATION AND STATE INSURANCE FUND ☛ WORKMEN’S COMPENSATON- A general and comprehensive term applied to those laws providing for compensation for loss resulting from the injury, disablement or death of a workman through industrial accident, casualty or disease. ☛ COMPENSATION - Money relief afforded according to the scale established under the statute as differentiated from compensatory damages recoverable in an action at law for
breach of contract or for tort.
WORKMEN’S COMPENSATION ACT
EMPLOYEES COMPENSATION LAW
1. There is a presumption of compensability
1. no presumption of compensability
2. there is a presumption of aggravation
2. no presumption of aggravation
3. there is a need for the employer to controvert the claim within 14 days otherwise he is deemed to have waived the right
3. no need for the employer to controvert
4. payment of compensation made by the employer
4. payment of compensation made by SSS/GSIS through the State Insurance Fund
☛ Conditions for an occupational disease and the resulting disability or death to be compensable : 1. The employee’s work must involve the risk described therein 2. The disease was contracted as a result of the employee’s exposure to the described risks; 3. The disease was contracted within a period of exposure and under such other factors necessary to contract it; 4. There was no notorious negligence on the part of the employee ☛ DEATH or sickness
Loss of life resulting from injury
☛ DISABILITY -Loss or impairment of a physical or mental function resulting from injury or sickness.
✍ ART 164. DEFINITION OF TERMS.
☛ DIRECT PREMISES RULE – as a general rule, the accident should have occurred at the place of work to be compensable
☛ EXCEPTIONS TO THE DIRECT PREMISES RULE 1.
INGRESS- EGRESS/ PROXIMITY RULEwhen the employer is about to leave or about to enter the premises of the employer by way of the customary or exclusive means of ingress or egress.
2.
GOING TO OR COMING FROM WORKwhen the injury occurred when the employee is proceeding to or from his work on the premises of the employer →must be a continuing act and has not diverted therefrom by any other activity and he has not departed from his usual route to or from his workplace and if the employee is on a special errand, it must have been official and in connection with his work.
☛ INJURY - Any harmful change in the human organism from any accident arising out of and in the course of employment.
☛ GROUNDS FOR AN INJURY TO BE COMPENSABLE 1. the employee must have been injured at the place where the work requires him to be 2. the employee must have been performing his official functions 3. if the injury is sustained elsewhere, the employee must have been executing an order for the employer 4. the injury was not due to the employee’s intoxication, willful intention to injure or kill himself or another, notorious negligence or otherwise prohibited under this Title. ☛ SICKNESS - Any illness definitely accepted as an occupational disease listed by the Commission or any illness caused by employment subject to proof that the risk of contracting the same is increased by working conditions.
3. EXTRA-PREMISES RULE – (or the shuttle bus rule) where the company provides the means of transportation in going to or coming from the place of work is liable to the injury sustained by the employees while on board said means of transportation.
4. SPECIAL
ERRAND RULE – injury sustained outside the company premises is compensable if his being out is covered by
an office order or a locator slip or a pass for official business.
5. DUAL PURPOSE DOCTRINE – allows compensation where a special trip would have to be made for the employer if the employee had not combined the service for the employer with his own going or coming trip.
6. SPECIAL ENGAGEMENT RULE – covers field trips, outings, intramurals and picnics when initiated or sanctioned by the employer
2. 3. 4.
☛ NOTORIOUS NEGLIGENCE –deliberate act of the employee to disregard his own personal safety. ☛ Is death through suicide compensable ? As a rule NO. However as held in NAESS vs. NLRC, the supreme court ruled that a self inflicted death could be compensable if : 1. by agreement of the parties 2. The suicide/death is caused by a work related or compensable illness or disease.
7. POSITIONAL
AND LOCAL RISKS DOCTRINE – If an employee by reason of his duties is exposed to a special or peculiar danger from the elements, that is, one greater than that to which other persons in the community are exposed and an unexpected injury occurs, the injury is compensable
✍ ART 173. EXTENT OF LIABILITY -
Simultaneous recovery under the Labor Code and the Civil Code cannot be made. The action is selective and the employee may either choose to file the claim under either. But once the election is made, the claimant cannot opt for the other remedy.
-
Simultaneous recovery under the LC and the SSS can be made as per an advisory opinion dated May 23, 1989 of Sec. Drilon since PD 1921 has lifted the ban on simultaneous recovery.
8. FORCE MAJEURE OR AN ACT OF GODwhen one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets an accident although one which any other person then and there present would have met irrespective of his employment.
CHAPTER II COVERAGE AND LIABILITY
Willful intention to injure or kill himself or another; Notorious negligence; or Unless otherwise provided by the LC
-
ECL applies to all employers, public or private, and to all employees, public or private including casual, emergency, temporary, or substitute employees.
☛ STATE INSURANCE FUND: all covered employers are required to remit to a common fund a monthly contribution equivalent to one percent of the monthly salary credit of every covered employee. The employee pays no contribution to the fund. Any agreement to the contrary is prohibited.
-
Every employee is covered who is not over 60 years over 60 years of age or over 60 years of age if he had been paying contributions prior to the age of 60
CHAPTER VI DISABILITY BENEFITS
✍ ART 168. COMPULSORY COVERAGE
ART 170. COVERAGE ✍
-
EFFECTIVE
DATE
OF
The employer is covered compulsorily from first day of operation and the employee from the first day of employment
✍ ART 172. LIMITATIONS OF LIABILITY -
1.
NO COMPENSATION can be obtained if the injury, death or disability is a result of the employee’s: Intoxication;
DISABILITY CATEGORIES: ☛ TEMPORARY TOTAL - if as a result of the injury or sickness, the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days ☛ PERMANENT TOTAL - if as a result of the injury or sickness, the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days ☛ PERMANENT PARTIAL - if as a result of the injury or sickness, the employee suffers a
permanent partial loss of the use of any part of his body.
☛ DEATH BENEFITS -
The System shall pay to the primary beneficiaries upon the death of the covered employee an amount equal to his monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution. The income benefit shall be guaranteed for five years.
☛ DEPENDENTS: 1. the legitimate, legitimated, legally adopted or acknowledged natural child who is unmarried, not gainfully employed and not over 21 years of age or over 21 years of age provided that he is incapable of selfsupport due to a physical or mental defect which is congenital or acquired during minority 2. legitimate spouse living with the employee 3. the parents of said employee wholly dependent upon him for regular support
☛ LABOR RELATIONS LAW - Concerned with the stabilization of relations of employer and employees and seeks to forestall and adjust grievances through - the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation and arbitration. -
☛ PARTIES TO LABOR RELATIONS CASES: 1. The employee’s organization, 2. management, and 3. the public
-
The public is always to be considered in disputes between labor and capital, and it ahas been held that the rights of the general public are paramount.
-
Labor relations policy under the LC is embodied in Section 3 Article XIII of the 1987 Constitution which guarantees to all workers their right among others to selforganization, collective bargaining and negotiations, peaceful land concerted activities including the right to strike in accordance with law, and to participate in policy and decision making processes affecting their rights and benefits as may be provided by law.
☛ BENEFITS 1. for life to the primary beneficiaries, guaranteed for five years 2. for not more than 60 months to the secondary beneficiaries in case there are no primary beneficiaries 3. in no case shall the total benefit be less that P 15, 000.00
☛ THE BENEFICIARIES ARE: PRIMARY BENEFICIARIES a. Dependent spouse until he remarries b. dependent children ( legitimate, legitimated, natural born or legally adopted)
SECONDARY BENEFICIARIES a. Illegitimate children and legitimate descendants b. parents, grandparents, grandchildren
BOOK FIVE LABOR RELATIONS
✍ ART. 212. DEFINITIONS ☛ LABOR DISPUTE INCLUDES: 1. any controversy or matter concerning terms or conditions of employment or 2. the association or representation of persons in negotiating, fixing, maintaining, charging or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. ☛ EMPLOYEE- shall not be limited to the employees of a particular employer. -
TITLE I POLICY AND DEFINITIONS ✍ ART 211. DECLARATION OF POLICY
Absent an employer-employee relation, there is no labor relations to speak of.
-
it shall include any individual whose work has ceased: as a result of or in connection with any current labor dispute; or because of unfair labor practice
If he has not obtained any other: 1. Substantially equivalent and 2. Permanent employment
☛ MANAGERIAL EMPLOYEE - is one who is vested with powers or prerogatives to lay down and execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. ☛ SUPERVISORY EMPLOYEES – are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. ☛ WORKER’S ASSOCIATION any association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining. ☛ INDEPENDENT UNION - any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration prescribed under Art. 234. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate. NATIONAL UNION/FEDERATION - any labor organization with at least 10 locals/chapters or affiliates each of which must be a dully certified or recognized collective bargaining agent. ☛ LEGITIMATE WORKER’S ASSOCIATION – any workers association as defined herein which is duly registered with the Department of Labor.
a) organizational right dispute/unfair labor practice (coercion, restraint or interference in unionization efforts) b) representation disputes c) bargaining disputes ( refusal to bargain ) d) contract administration or personnel policy disputes (noncompliance with CBA provisions) e) employment tenure disputes f) ( non regularization of employees)
PARTIES TO A DISPUTE: 1. Primary Parties – employer, employees, union 2. Secondary Parties – voluntary arbitrator, agencies of DOLE (BLR, NLRC, VAC, Sec. Of Labor, Office of the President)
☛ CONSULTATION ON POLICIES OF MANAGEMENT AND OF THE EMPLOYER -
What is needed is only consultation or participation. The employees need not agree.
1. the last say is still with the management 2. it is still the management prerogative that prevails - If there is no labor union, then consultation should be made with the labor management council. - If the employees were not given the right to participate, then they could file with the NLRC a grievance.
☛ LABOR ORGANIZATIONS - Any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employees concerning terms and conditions of employment.
PURPOSES OF LABOR ORGANIZATIONS: 1. for collective bargaining; and 2. for mutual aid and protection.
☛ TYPES OF LABOR DISPUTES 1. Labor Standards Disputes : a) compensation (underpayment of minimum wage) b) benefits ( nonpayment of holiday pay, overtime pay) c) working conditions ( unrectified working hazards) 2. Labor Relations Disputes
TITLE II NATIONAL LABOR RELATIONS COMMISSION CHAPTER I CREATION AND COMPOSITION ✍ ART. 213. NATIONAL LABOR RELATIONS COMMISSION TRIPARTISM - Five (5) divisions of NLRC. - Three (3) sectors are represented in the composition of the NLRC. - each division (3 commissioners) will have representative from the following :
2. Cases decided by the Regional Offices of DOLE in the exercise of its adjudicatory function under Art 129 of the Labor Code
1. Choice of the Sec. Of Labor coming from the public sector 2. labor 3. employer and management sector
☛ QUALIFICATIONS OF THE CHAIRMAN AND THE COMMISSIONER 1. must be a member of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 15 years; 3. must have experience or exposure in handling labor management relations for at least 15 years; and 4. preferably a resident of the region where he is to hold office. - The Chairman and Commissioners of the NLRC are not subject to confirmation by the Commission on Appointments
☛ THE QUALIFICATIONS OF EXECUTIVE LABOR ARBITERS
THE NLRC ONLY SITS EN BANC FOR PURPOSES OF: 1. promulgating rules and regulation governing the hearing and disposition of cases before any of its divisions and regional branches, and 2. formulating policies affecting administration and operations.
-
The Commission may only sit en banc for the determination of policies and NOT for purposes of adjudication.
-
Petitions for certiorari against decisions of the NLRC should henceforth be initially filed with the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The SC noted that the CA is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martin Funeral Homes vs. NLRC G.R. No. 130866)
-
Findings of facts of a labor tribunal are accorded the utmost respect by the courts and are well-nigh conclusive if supported by substantial evidence.
-
Labor cases are not subject to Barangay Conciliation since ordinary rules on procedure are merely suppletory in character vis-a- vis labor disputes which are primarily governed by labor laws.
-
The failure of the petitioner to file a motion for reconsideration of the decision of NLRC before filing a petition for certiorari has in certain instances been held not to be a fatal omission.
1. must be members of the Philippine Bar; 2. must have been engaged in the practice of law in the Philippines for at least 7 years; 3. must have experience or exposure in handling labor management relations for at least 3 years.
☛ TERM OF OFFICE OF THE CHAIRMAN, COMMISIONERS, AND LABOR ARBITERS: -
until they reach the age of 65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office.
☛ CASES WERE THE NLRC HAVE EXCLUSIVE AND ORIGINAL JURISDICTION: 1. Cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263; 2. Injunction cases under Art. 218 and 264; and 3. Contempt cases.
☛ CASES WERE THE NLRC HAS APPELLATE JURISDICTION: 1. Cases decided by labor arbiters under Art 217b and Sec 10 RA 8012(Migrant Workers Act)
its
CHAPTER II POWERS AND DUTIES ✍ ART 217. JURISDICTION OF LABOR ARBITERS AND THE COMMISSION. a. Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within 30 calendar days after the submission of the case by the parties for decision without extension, even in the
absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1, Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from employeremployee relations; 5. Cases arising from any violation of Art 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 regardless of whether accompanies with a claim for reinstatement. 7.Monetary claims of overseas contract workers under the Migrant Workers Act of 1995. b. The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. c. Cases arising from the interpretation or implementation of CBA and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration. -
The labor arbiter has jurisdiction over the claims of employees against GOCCs if the latter does not have an original charter and has been incorporated under the Corporation Code.
-
The labor arbiter and the NLRC have no jurisdiction over claims filed by employees against international agencies such as IRRI, WHO etc.
✍ ART 218. POWERS OF THE COMMISSION ☛ POWERS OF THE NLRC:
a. Rule-making power b. Power to issue compulsory processes c. Power to investigate matters and hear disputes within its jurisdiction d. Contempt power e. Power to issue injunctions and Restraining Orders
☛ REQUISITES BEFORE RESTRAINING ORDER/ INJUNCTION MAY ISSUE: 1. filing of a verified petition 2. a hearing after due and personal notice has been served in such manner as the Commission shall direct, to all known persons against whom the relief is sought and also to the Chief Executive or other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect the complainant’s property 3. reception at the hearing of the testimony of witnesses with opportunity for crossexamination, in support of the allegations of the complaint made under oath as well as testimony in opposition thereto 4. a finding of fact of the Commission to the effect that : a) prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited, or unlawful act, except against the persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof. b) That substantial and irreparable injury to the complainant’s property will follow c) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of the relief than will be inflicted upon the defendants by the granting of the relief d) That complainants has no adequate remedy at law e) That public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection. 5. Posting of a bond
☛ REQUISITES BEFORE TRO MAY BE ISSUED EX PARTE:
1. The complainant shall allege that, unless a TRO shall be issued without notice, a substantial and irreparable injury to complaint’s property will be unavoidable; 2. There is testimony under oath, sufficient, is sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice ; 3. The complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expenses or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission; and 4. The TRO shall be effective no longer than 20 days and shall become void at the expiration of said 20 days counted from the date of the posting of the bond. -
-
In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter are null and void. The procedural and substantial requirements of Art 218 (e) must be strictly complied with before an injunction may issue in a labor dispute.
for any information or date concerning any matter or question relative to the object of the investigation
✍ ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT -
PURPOSE: for the employee’s protection for the labor arbiter before whom the case is pending would be in a better position than just any labor arbiter to personally determine the voluntariness of the agreement and certify its validity.
RES JUDICATA applies only to judicial or quasi-judicial proceedings and not exercise of administrative powers.
President (ART. 263, g) Secretary of Labor (ART. 263, g) Labor Arbiters (ART. 217) NLRC Regional Directors Med- Arbiters
☛ Art 219. OCULAR INSPECTION The Chairman, any Commissioner, labor Arbiter or their duly authorized representatives may, at anytime during working hours: a. Conduct an ocular inspection on any establishment, building, ship, place or premises, including any work, material, implement, machinery, appliance or any object therein; and b. Ask any employee. Laborer, or any person as the case may be
to
the
✍ ART 222. APPEARANCES AND FEES ☛ APPEARANCE OF NON-LAWYERS BEFORE THE COMMISSION: GENERAL RULE: ONLY lawyers can appear before the NLRC, or any Labor Arbiter, EXCEPTIONS : Non-Lawyers can appear ONLY in the following instances:
☛ THE FF. CAN ISSUE INJUNCTIONS/ TRO IN LABOR DISPUTES 1. 2. 3. 4. 5. 6.
An amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that it was voluntarily entered by the parties and after having explained to them the terms and consequences thereof.
1. if they represent themselves; or 2. if they represent their organization or members thereof; or 3. if he is a duly-accredited member of the legal aid office duly recognized by the DOJ of IBP in cases referred thereto by the latter. ATTORNEY’S FEES: The maximum amount to be given a lawyer is 10% of the monetary benefits awarded to the employees excluding the award for moral and exemplary damages shall not be included. -
Moral and exemplary damages and other benefits that employee receives when he is working are excluded.
-
This article prohibits the payment of attorney’s fees only where the same is effected through forced contributions from the workers form their own funds as distinguished from the union funds.
-
Where the employer failed to post a bond to perfect its appeal, the remedy of the employee is not a petition for mandamus by a motion to dismiss appeal.
-
The intention of the lawmakers is to make the bond an indispensable requisite for the perfection of an appeal by the employer.
-
Tardiness of an appeal form the decision of the labor arbiter may be considered as a mere procedural lapse.
CHAPTER III APPEAL ✍ ART. 223. APPEAL ☛ GROUNDS FOR APPEAL: 1. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Compulsory Arbitrator; 2. If the decision, order or award was secured through fraud or coercion, including graft and corruption; 3. If made purely on questions of law; 4. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.
☛ EXECUTION PENDING APPEAL: -
☛ PERIODS WITHIN WHICH TO APPEAL: A. DECISIONS OF THE REGIONAL DIRECTOR: - within 5 calendar days from receipt of the order. B. DECISIONS OF THE LABOR ARBITER: - within 10 calendar days from the receipt of the decision. -
The appeal must be under oath and must state specifically the grounds relied upon and the supporting arguments.
-
Where the 10th day falls on a Saturday, Sunday or legal holiday, the appeal may be filed on the next business day.
IS THE PERIOD OF APPEAL EXTENDIBLE? NO. The period of appeal to cases decided by the regional Director and the Labor Arbiter is NEVER extendible. It is the policy of the state to settle expeditiously labor disputes.
☛ REQUISITES BEFORE APPEAL TO THE NLRC IS DEEMED PERFECTED: 1. File a verified memo of appeal within the required period of appeal; 2. In case of monetary award, the employer should file a bond corresponding to the monetary award excluding awards for moral, exemplary damages and attorney’s fees. 3. Appeal fee of P110; 4. Furnish the other party with a copy of the memo of appeal (proof of service).
the decision of the labor arbiter ordering the reinstatement of a dismissed or separated employee shall immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution. There is no need for the arbiter to issue a writ of execution on the reinstatement order as it is self-executory (Pioneer Texturizing Case).
☛ OPTIONS OF THE EMPLOYER TO IN COMPLYING WITH AN ORDER OF REINSTATEMENT WHICH IS IMMEDIATELY EXECUTORY: 1. He can admit the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up. 2. He can reinstate the employee merely in the payroll. -
Failing to exercise any option may be compelled under pain of contempt and the employer may be made to pay instead the salary of the employee.
☛ A petition for relief from the decision of the labor arbiter must strictly comply with 2 reglementary periods: 1. The petition must be filed within 60 days from knowledge of the judgment; and 2. Within a fixed period of 6 months from entry of such judgment. - petitions filed beyond said period will no longer be entertained.
☛ APPEAL FROM THE DECISION OF THE NLRC: -
appeal by certiorari should be filed with the Court of Appeals(St. Martin Funeral’s Home)
✍ ART 224. EXECUTION OF DECISIONS, ORDER, OR AWARDS -
-
-
The decision of the Secretary of Labor, the Commission, the Bureau or Regional Director the Labor Arbiter, the Med-Arbiter or the Voluntary Arbitrator shall be final and executory after 10 calendar days from receipt thereof by the parties. The foregoing may upon its own initiative or on motion of any interested party, issue a writ of execution on a judgment within 5 years from the date it becomes final and executory.
☛ INTER- UNION DISPUTES - refers to questions involving or arising out of a representation disputes between or among the different unions. -
☛ DETERMINATION OF EMPLOYEREMPLOYEE RELATIONSHIP: -
The immediate execution of judgment should be undertaken only when the monetary award had been carefully and accurately determined by the NLRC and only after the employer is given the opportunity to be heard and to raise objections to the computation.
TITLE III BUREAU OF LABOR RELATIONS
It also includes all other conflicts which legitimate labor, organizations may have against each other based on any violation of their rights as labor organizations.
since the BLR has the original and exclusive jurisdiction to decide inter alia, all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces. Necessarily, in the exercise of this jurisdiction over labor-management relations, the Med-Arbiter has the authority, original and exclusive, to determine the existence of an employer-employee relationship (MY San Biscuits, Inc. v Laguesma G.R. No. 9511, 22 April 1991).
☛ SPECIAL REQUIREMENT AS TO THE FILING OF CASES: A. INVOLVING ENTIRE MEMBERSHIP 1. The complaint must be signed by at least 30% of the entire membership of the union. 2. It must also show exhaustion of administrative remedies.
✍ ART. 226 BUREAU OF LABOR RELATIONS ☛ EXCLUSIVE AND ORIGINAL JURISDICTION OF THE BLR: 1. inter- union conflicts 2. intra- union conflicts 3. all disputes, grievances or problems arising from or affecting labor- management relations in all workplaces whether agricultural or non- agricultural.
RE : Imposition of fees by the union – does it affect the entire membership?
☛ CASES WHERE THE BLR HAS NO JURISDICTION:
YES. Such being the case, the complaint should be signed by at least 30% of the membership of the union.
-
Those arising from the implementation or interpretation of collective bargaining agreements which shall be subject of grievance procedure and/or voluntary arbitration.
☛ INTRA- UNION DISPUTES - includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of a union. -
It also includes any violation of the rights and conditions of union membership provided for in the Labor Code.
B. INVOLVING A MEMBER ONLY: In such case only the affected member may file the complaint.
☛ ADMINISTRATIVE FUNCTIONS OF THE BLR: 1. The regulation of registration of the labor unions; 2. The keeping of a registry of labor unions; and 3. The maintenance of a file of CBAs.
☛ NATIONAL CONCILIATION MEDIATION BOARD: -
AND
has absorbed the conciliation, mediation and voluntary arbitration functions of the BLR (E.O. 126)
✍ ART. 227. COMPROMISE AGREEMENTS
CHAPTER I REGISTRATION AND CANCELLATION
☛ REQUIREMENTS OF A VALID QUITCLAIM: 1. The quitclaim must be voluntarily arrived at by the parties; 2. It must be with the assistance of the Bureau of Labor Standards, Bureau of Labor Relations of any representative of the DOLE; and 3. The consideration must be reasonable. -
-
-
if the compromise agreement was entered into without the assistance of DOLE, it is valid and binding between the parties but the parties can still go to the NLRC and repudiate the agreement. if the compromise agreement was entered into with the assistance of DOLE, it shall be final and binding between the parties, EXCEPT: a. in case of non compliance with the compromise agreement; or b. if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion in such cases, the NLRC of the courts can assume jurisdiction.
✍ ART 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE AGREEMENT -
The CBA is more than a contract, it is highly impressed with public interest for it is an essential instrument to promote industrial peace.
-
An unregistered CBA certification election.
does
not
bar
✍ ART 233. PRIVILEGE COMMUNICATIONS -
Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission.
-
Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.
TITLE IV LABOR ORGANIZATIONS
✍ ART. 234. REQUIREMENT OF REGISTRATION ☛ LABOR ORGANIZATION- A labor organization is any union or association of employees which exists in whole or in part for the purpose : - of collective bargaining or - of dealing with employers concerning the terms and conditions of employment. ☛ PURPOSE OF FORMATION OF LABOR UNIONS: for securing a fair and just wages and good working conditions for the laborers; and for the protection of labor against the unjust exactions of capital
☛ REQUIREMENTS BEFORE A LABOR ORGANIZATION CAN BE REGISTERED WITH THE BUREAU OF LABOR RELATIONS: 1. Written application verified by the Secretary/Treasurer, attested to by the President; 2. Names of members comprising at least 20% of the employees in the bargaining unit where it seeks to operate; 3. Non-existence of CBA, otherwise, if one exist, state in the application that it is filed within the freedom period. It shall be accompanied by the following attachments : a. Registration fee in the amount of P50.00; b. Names of the officers and their addresses; c. Minutes of the organizational meetings; d. List of workers who participated in the organizational meetings; e. Names of all the members and the number of employees in the bargaining unit; f. Annual Financial Report ( if the applicant has been in the existence for at least one year); g. Four (4) copies of the constitution and by-laws; h. Minutes of the resolution of the constitution and by-laws and the list of members who participated in the bargaining unit concerned; and i. If there is an existing collective bargaining agreement duly submitted to the DOLE, a sworn statement that the
application for registration is filed during the last 60 days of the agreement. MANDAMUS is the proper remedy for the unjustified refusal of the Bureau in approving the application and the corresponding issuance of a certificate of registration, it being a ministerial duty. REASON FOR REQUIREMENT OF REGISTRATION – it is a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions, and the possession or the rights and privileges granted by law to legitimate labor organizations
2. Statement of the set of officers and books of accounts, all of which must be certified by the Secretary/Treasurer and attested to by the President.
☛ Can a union of supervisory employees affiliate with a national federation of labor organizations of rank and file employees ? YES, provided that: a. The federation is not actively involved in union affairs in the company and b. The rank and file employees are not directly under the control of the supervisors
☛ FEDERATION is an association of national unions.
☛ REQUIREMENTS BEFORE FEDERATION CAN BE ISSUED CERTIFICATE OF REGISTRATION:
A A
Aside from the application, which must be accompanied with the requirements for registration of a labor registration, the application should also be accompanied by the following: 1. Proof of affiliation of at least 10 locals or chapters, each of which must be : a. a duly recognized collective bargaining agent in the establishment of b. supporting the registration of such applicant federation or national union; 2. The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.
☛ Can a local union affiliate with a federation? If so, how? YES. The procedure of affiliation would depend on whether the union is individually registered or not. If the union is independently registered, the affiliation is by signing a contract of affiliation with the labor union and the registration of such contract with the BLR. On the other hand, if the union Is not independently registered, affiliation is done by the application of the union with the federation so it may be issued a charter certificate, to be submitted with the BLR, including the following: 1. Copies of its constitution and by-laws
☛ EFFECTS WHEN A LOCAL UNION DISAFFILIATE: →IT DEPENDS. If the labor union is independently registered, the disaffiliation of the union would not affect its being a legitimate labor organization and therefor would continue to have the rights and privileges of a legitimate labor organization as well as the legal personality as such. On the other hand, if the labor union is not independently registered, upon disaffiliation, it would cease to be a legitimate labor organization and would therefore no longer have the legal personality and the rights and privileges granted by law to legitimate organization.
☛ EFFECT OF DISAFFILIATION WITH EXISTING CBAs: →IT DEPENDS. If the labor union is independently registered, existing CBAs would continue to be valid as the labor organization can continue administering the CBAs. However, if the labor union is not independently registered, existing CBAs would no longer be valid as there would no longer be any labor organization given by law the right to administer the CBAs.
☛ ENTITLEMENT TO UNION DUES IN CASE OF DISAFFILIATION: -
If the labor union is independently registered, then the labor organization is entitled to the union dues and not the federation from which the labor organization disaffiliated.
-
-
On the other hand, if the labor union is not independently registered, then union dues may no longer be collected as there would no longer any labor union who is allowed to collect such union dues from the employees. A union can affiliate anytime but disaffiliation can be done only during the freedom period. If not within the freedom period, can be done only with the consent of the majority of the workers. Provided it is independently registered otherwise it loses its personality. The exception will only apply if it is not prohibited by the constitution and by-laws of the federation of national union.
3.
4.
✍ ART 236. DENIAL OF REGISTRATION; APPEAL Decisions of the BLR denying the registration of a labor organization is appealable to the Secretary of Labor within 10 calendar days from receipt, on grounds of:
✍ ART 238. CANCELLATION REGISTRATION; APPEAL
OF
The certificate of registration of any legitimate labor organization shall be cancelled by the BLR if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements herein prescribed.
-
Appeal may be filed within 15 days from receipt of the decision to the Secretary of Labor.
✍ ART 239. CANCELLATION REGISTRATION.
5. 6.
a. grave abuse of discretion; and b. gross incompetence
GROUNDS FOR OF UNION
7. 8.
9. 10.
☛ REMEDY IN CASE THE BUREAU SHOULD CANCEL THE REGISTRATION OF THE UNION: - to appeal to the Secretary of Labor within 10 calendar days on the grounds of:
☛ GROUNDS FOR CANCELLATION OF UNION REGISTRATION: 1. Misrepresentation, False statement or Fraud in connection with: - the adoption or ratification of the constitution and by-laws or amendments thereto, - the minutes of ratification, and - the list of members who took part in the ratification. 2. Failure to submit the document mentioned in the preceding paragraph
within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto. Misrepresentation, false statement or fraud in connection with the: - election of officers, - minutes of the election of officer and the list of voters, or failure to submit these documents together with - the list of the newly elected/appointed officers and their postal addresses - within 30 days from election Failure to submit the annual financial report to the Bureau - within 30 days after the closing of every fiscal year and misrepresentation, false entries and fraud - in the preparation of the financial report itself; Acting as a labor contractor or engaging in the “cabo” system, or otherwise engaging in any activity prohibited by law; Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standard established by law; Asking for or accepting attorney’s fees or negotiation fees from the employers; Other than for mandatory activities under this Code, checking off special assessment or any other fees without duly signed individual written authorization of the members; Failure to submit a list of individual members of the Bureau once a year or whenever required by the Bureau; and Failure to comply with the requirements under Articles 237 and 238. -
1. grave abuse of discretion or 2. gross incompetence on the part of the Bureau -
Should the office of the Secretary affirm the decision of the Bureau, the final remedy is a petition for certiorari to the SC under Rule 65, Rules of Court.
CHAPTER II RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION
-
✍ ART. 241. RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION ☛ REQUIREMENTS IN MAKING SPECIAL ASSESSMENT Art. 241(n).
No special assessment or other
extraordinary fees may be levied upon the members of a labor organization: -
UNLESS authorized by a written resolution of a majority of all the members at a general membership meetings duly called for the purpose.
-
The secretary of the organization shall record the minutes of the meeting including: the list of all members present, the votes cast, the purpose of the assessment or fees,
-
The record President.
shall
be
attested
by
the
The law does not require individual written authorizations from the employees when it comes to fees for mandatory activities under the Labor Code.
☛ CHECK-OFF is a method of deducting from an employee’s pay at prescribed period, the amounts due to the union for fees, fines or assessment. In Special Assessment, there must be a written resolution authorized by a majority of the members at a general meeting called for the purpose. -
Check-off – there must be individual written authorization of the members.
☛ PERSONS WHO ARE PROHIBITED FROM BECOMING MEMBERS OF A LABOR ORGANIZATION UNDER THE LABOR CODE: 1. Those who have been convicted of a crime involving moral turpitude. (Art. 241(f)); 2. Subversives or those engaged in subversive Activities.
Therefore, the REQUIREMENTS when it comes to special assessment are as follows: 1. there must be a written resolution 2. the resolution must have been approved by a majority of all the members 3. the approval must be at a general membership meeting duly called for the purpose
-
In general, a union is free to select its own members, and no person has an absolute right to membership in a trade union.
-
The implementing rules require that the remedies be exhausted within the union before a complaint for any violation of the union’s constitution and by-laws may be filed.
☛ REQUIREMENTS OF THE LAW WITH REGARDS TO CHECK-OFFS
☛ REQUIREMENTS BEFORE A CHECKOFF MAY BE DONE:
Art. 241(o). Other than MANDATORY ACTIVITIES under Code.
-
-
-
-
for the
NO special assessment, attorney’s fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee. WITHOUT an individual written authorization duly signed by the employee. The authorization should specifically state the: a. amount b. purpose and c. beneficiary of the deduction.
EXCEPTION to the Requirement of Individual Written Authorization:
Individual written authorizations of the employees are required before a check-off may be validly done.
EXCEPTIONS : 1. For mandatory activities provided under the Code; and 2. When non-members of the union avail of the benefits of the CBA. - said non-members may be assessed union dues equivalent to that paid by members - only by a Board Resolution approved by majority of the members in a general meeting called for the purpose
NATURE AND PURPOSE OF CHECK-OFF
-
to facilitate the collection of dues necessary for the union’s life and sustenance.
☛ GENERAL GROUPINGS OF THE RIGHTS OF THE UNION MEMBERS: (Under Art. 241) 1.
2.
3.
Political right is the right of the members to vote and be voted for, subject to lawful provisions on qualifications and disqualifications. Deliberative and Decision-Making Right is the members right to participate in deliberations on major policy questions and decide them by secret ballot. Rights Over Money Matters is the right of the members: a. against excessive fees b. against unauthorized collection of contributions or unauthorized disbursements c. to require adequate records of income and expenses d. e. f. g.
4.
to access financial records to vote on officers compensation to vote on special assessment to be deducted a special assessment only with the member’s written authorization. Right to Information is the member’s right to be informed about: a. the organization’s constitution and by- laws b. the collective bargaining agreement c. about labor laws
CHAPTER III RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS ✍ ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS ☛ RIGHTS OF A LEGITIMATE LABOR ORGANIZATION: 1. 2. 3. 4. 5.
Undertake activities for benefit of members Sue and be sued Exclusive representative of all employees Represent union members Furnished by employers of audited financial statements 6. Own properties 7. Exempted from taxes
☛ EFFECT OF CANCELLATION OF REGISTRATION IN THE COURSE OF PROCEEDINGS; -
Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue still as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will only be binding upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits.
TITLE V COVERAGE ✍ ART. 243. COVERAGE AND EMPLOYEE’S RIGHT TO SELF –ORGANIZATION
GOVERNMENT – OWNED OR CONTROLLED CORPORATIONS WITH A CHARTER
GOVERNMENT – OWNED OR CONTROLLED CORPORATIONS WITHOUT CHARTER
1. Employees cannot stage strikes since they are governed by the Civil Service Law. They are enjoined by Civil Service Memorandum Circular No. 6, under pain of administrative sanctions, from staging strikes, demonstrations, mass leaves, walkouts and other concerted activities.
1.The GOCC is created under Corporation Code, then employees are covered by the Labor Code. Therefore the employees have the same rights as those as employees of private corporations, one of which is the right to stage strikes.
2.Corporations with original charters cannot bargain with the government concerning the terms and conditions of their employment.
2. The GOCC is created under Corporation Code, being governed by the Labor Code, they can bargain with the government concerning the terms
However, they can negotiate with the government on those terms and conditions of employment which are not fixed by law. Thus, they have a limited bargaining rights.
and conditions of their employment. Thus, they have an unlimited bargaining rights.
appointments - promotion - assignments/details - reclassification/upgrading of position - revision of compensation structure - penalties imposed as a result of disciplinary actions - selections of personnel to attain seminar, trainings. Study grants - distribution of work load - external communication linkages -
3. Can only form, join or assist labor organization for purposes not contrary to law.
3. Can form, join or Assisi labor organization for purposes of CBA, etc.
Government employees and employees of government-owned and controlled corporations with original charters may bargain, however, such bargaining power is limited.
☛ RATIONALE : GOCCs INCORPORATED UNDER THE CORP. CODE ALLOWED TO ORGANIZE: 1. they are not involved in public service
☛ THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCC WITH ORIGINAL CHARTER: 1. 2. 3. 4. 5. 6.
schedule of vacation and other leaves work assignment of pregnant women personnel growth and development communication system – lateral and vertical provision for protection and safely provision for facilities for handicapped personnel 7. provision for first-aid medical services for married women 8. annual medical/physical examination 9. recreational, social, athletic and cultural activities and facilities (Rules implementing WO 180) ☛ THE FOLLOWING ARE CONSIDERED NOT NEGOTIABLE : 1. Those which require appropriation of funds, such as : a. increase in salary emoluments and other allowance not presently provided for by law b. facilities requiring capital outlays c. car plan d. provident fund e. special hospitalization, medical and dental services f. rice/sugar/other subsidies g. travel expenses h. increase in retirement benefits 2. Those that involve the exercise management prerogatives, such as :
of
2. terms of employment are not fixed by law 3. they are governed by the provisions of the Labor Code not by the Civil Service Law
☛ EMPLOYEES COVERED BY RIGHT TO SELF- ORGANIZATION: 1. 2. 3. -
THE
Commercial Industrial Agricultural enterprises, including: charitable religious education or medical institution
☛ EMPLOYEES WITH LIMITED RIGHT TO SELF- ORGANIZATION: 1. 2. 3. 4. 5.
Self- employed Without definite employers Ambulant Intermittent and Itinerant Rural worker
-
they have the right to self-organization but only for their mutual aid and protection.
☛ EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELFORGANIZATION: 1. Members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards; 2. High-level employees
3. 4. 5. 6. -
whose functions are normally considered as policy-making or managerial whose duties are of a highly confidential or highly technical in nature ( EO 180, sections 3-4) Government employees occupying high positions Employees of international organizations with immunities Confidential employees Cooperative members who are also employees Foreigners validly working in the Philippines can form labor organizations, provided, the same right to form, join or assist in the formation of labor unions is also given to Filipinos in their country of origin. This embodies the principle of reciprocity.
☛ Extent of the Right to SelfOrganization a. To form, join and assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and b. To engage in lawful concerted activitiesfor the same purpose for their mutual aid and protection
✍ ART 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES. Reason for ineligibility – in the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members.
✍ ART. 246. “THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE ABRIDGED” MEANS: It shall be unlawful for any person to: restrain, coerce, discriminate against, or unduly interfere with employees and workers in their exercise of the right to self-organization. (Art. 246)
Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called “unfair labor practice.”
TITLE VI UNFAIR LABOR PRACTICES CHAPTER I CONCEPT ✍ ART. 247 UNFAIR LABOR PRACTICES ☛ NATURE PRACTICES:
OF
UNFAIR
LABOR
1. violate the constitutional right of workers and employees to self-organization, 2. are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, 3. disrupt industrial peace and 4. hinder the promotion of healthy and stable labor-management relations.
☛ PRESCRIPTIVE PERIOD FOR FILING CRIMINAL AND CIVIL CASES FOR ULP: -
The prescriptive period of filing ULP cases whether it be civil or criminal is one year from the accrual of the ULP act.
-
The prescriptive period for the criminal case is suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality.
-
HOWEVER: Final judgment in administrative proceedings shall not binding in the criminal case nor shall considered as an evidence of guilt merely as a proof of compliance of requirements prescribed by the Code.
the be be but the
Prerequisite for filing criminal case: final judgment in the administrative proceeding finding that ULP has been committed
CHAPTER II UNFAIR LABOR PRACTICES
☛ YELLOW DOG CONTRACT: A promise exacted from workers as a condition employment that they are not to belong to, or attempt to foster, a union during their period of employment.
OF EMPLOYERS ✍ ART 248. ULP THAT MAY BE COMMITTED BY AN EMPLOYER 1.
To interfere with, restrain or coerce employees - in the exercise of their right to selforganization; 2. To require as a condition for employment that a person or an employee - shall not join a labor organization or - shall withdraw from one to which he belongs; 3. To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to selforganization; 4. To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or officers; 5. To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization .
☛ TEST OF DISCRIMINATION: a.
whenever benefits or privileges given to one is not given to the other under similar or identical conditions b. when directed to encourage or discourage union membership 6. To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; 7. To violate the duty to bargain collectively as prescribed by this Code; 8. To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other disputes; or 9. To violate a collective bargaining agreement. NOTE: violation must be gross and with respect to the economic provision of the CBA
-
It is contrary to public policy for it is tantamount to involuntary servitude. It is entered into without consideration for employees waive their right to selforganization Employees are coerced to sign contracts disadvantageous to their family.
☛ Does Art. 248 (c ) mean that an employer cannot contract out work? NO. Contracting out services is not ULP per se. It is only ULP when the following conditions exist: 1. the service contracted- out are being performed by union members; and 2. such contracting-out interferes with, restrains, or coerce employees in the exercise of their right to selforganization.
-
HOWEVER, when the contractingout is being done to minimize expenses, then it is a valid exercise of management prerogative.
☛ THREE COMPONENTS OF ART. 248 (e ): (DISCRIMINATION) 1. It prohibits discrimination in terms and conditions of employment in order to encourage or discourage membership in the union; 2. It gives validity to union security agreements; 3. It allows an agency shop arrangement whereby agency fees may be collected from non-union members. SECURITY ARRANGEMENTS are stipulations in the CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. ☛ PRINCIPLES OF ARRANGEMENTS:
UNION
SECURITY
1. Protection. To shield union
2.
members from whimsical and abusive exercise of management prerogatives. Benefits. An additional membership will insure additional source of income
3.
to the union in the form of union dues and special assessment. Self-preservation. It strengthens the union through selective acceptance of new members on the basis of commitment and loyalty.
☛ DIFFERENT KINDS OF SECURITY ARRANGEMENTS: 1.
UNION
CLOSED- SHOP AGREEMENT - the employer undertakes not to employ any individual who is not a member of the contracting union and the said individual once employer must, for the duration of the agreement, remain a member of the union in good standing as a condition for continued employment.
2.
UNION – SHOP AGREEMENT -stipulation whereby any person can be employed by the employer but once employed such employee must, within a specific period, become a member of the contracting union and remain as such in good standing for continued employment for the duration of the CBA.
3.
MAINTENANCE OF MEMBERSHIP CLAUSE - the agreement DOES NOT require non-members to join the contracting union BUT provides that those who are members thereof at the time of the execution of the CBA and those may thereafter on their own volition become members must for the duration of the agreement maintain their membership in good standing as a condition for continued employment in the company for the duration of the CBA.
4.
5.
PREFERENTIAL SHOP AGREEMENT The employer agrees to give preference to the members of the bargaining union in hiring or filing vacancies and retention in case of lay-off. But the employer has the right to hire in open market if union members are not available. Usually, descendants (children) are also given preference in employment. AGENCY SHOP AGREEMENT - An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. This is directed against “FREE RIDER” employees who benefit from
union activities without contributing to union support to prevent a situation of non-union members enriching themselves at the expense of union members.
☛ THE REQUIREMENTS FOR A VALID UNION OR CLOSE SHOP AGREEMENT (SO THAT THE EMPLOYER CAN TERMINATE THE EMPLOYEE FOR VIOLATION OF SAID AGREEMENT): 1. It must be expressed in a clear and unequivocal way so as not to leave room for interpretation because it is a limitation to the exercise of the right to self-organization. - Any doubt must be resolved against closeshop. 2. It can only have prospective application and cannot be applied retroactively. 3. Can only be exercised by giving the employee his right to due process. The employer has the right to satisfy itself that there are sufficient bases for the request of the union. The termination of the employee is not automatic upon the request of the union. 4. Cannot be applied to employees who are already employees of the rival union nor to the employees based on their religious beliefs.
CHAPTER III UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS ✍ ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS a. To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; b. To cause or attempt to cause an employer to discriminate against an employee, including discrimination c. To violate the duly or refuse to bargain collectively with the employer provides that it is the representative of the employees; d. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are
not performed or not to be performed, including the demand for a fee for union negotiations; e. To ask for a accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or f. To violate a collective bargaining agreement. NOTE: Violation must be gross with respect to economic provisions of the CBA.
4. If not settled NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitrator 5. If not resolved, the parties may go to where they want and resort to any other lawful means.
☛ COLLECTIVE BARGAINING AGREEMENT- (CBA) –
☛ PERSONS CIVILLY LIABLE FOR ULP: 1. Officers and agents of employer 2. Labor organization, officers and agents
☛ PERSONS CRIMINALLY LIABLE FOR ULP: 1. Agents and officers who participated or authorized or ratified the act. 2. Agents, representatives, members of the government board, including ordinary members ☛ FEATHERBEDDING - refers to the practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of exaction, for services which are not performed or not to be performed, as when a union demands that the employer maintain personnel in excess of the latter’s requirements
TITLE VII COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS ✍ ART 250. PROCEDURE COLLECTIVE BARGAINING
IN
☛ COLLECTIVE BARGAINING –negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work and other terms and conditions of employment and the settlement of disputes by negotiation between an employer, and the representative of his employees.
☛ PROCEDURE IN COLLECTIVE BARGAINING: 1. Written notice with statement of proposals 2. Reply by the other party 3. In case of differences, either party may request for a conference
negotiated contract between a legitimate labor organization and the employer concerning : - wages, - hours of work and - all other terms and - conditions of employment in a bargaining unit, including mandatory provisions for grievances and arbitration machineries.
☛ MANDATORY PROVISIONS OF THE CBA: 1. 2. 3. 4. 5. 6. 7.
wages hours of work grievance machinery voluntary arbitration family planning rates of pay mutual observance clause
In addition, the Bureau requires that the CBA should include a clear statement of the terms of the CBA.
✍ ART 253. DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT ☛ BARGAINING UNIT- a group of employees of a given employer, comprised of all or less that all the entire body of the employees, consistent with equity to the employer, - indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.
☛ FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING AGREEMENT: 1. The Express Will or Desire Employees (Globe Doctrine); 2. The Substantial and Mutuality Factor; 3. Prior Collective Bargaining History; 4. Employment Status, such as - temporary
of
the
Interest
-
showing that the labor organization is supported by at least a majority of the employees in the bargaining unit.
seasonal, and probationary employee
☛ THINGS TO CONSIDER DETERMINING THE COMMUNITY INTEREST DOCTRINE:
IN OF
1. similarity in the scale and manner of determining earnings 2. similarity in employment benefits, hours of work and other terms and conditions of employment 3. similarity in the kinds of work performed 4. similarity in the qualifications, skills and training of the employees 5. frequency of contract or interchange among the employees 6. common supervision and determination of labor-relations policy 7. history of previous collective bargaining 8. desires of the affected employees 9. extent of union organization ☛ AUTOMATIC RENEWAL CLAUSE - this is under the present Article which establishes an automatic renewal clause the CBA is effective and enforceable even after the expiration of the period fixed by the parties as long as no new agreement is reached by them.
☛ MODES OF CHOOSING EXCLUSIVE BARGAINING UNIT:
THE
1. SELECTION - certification election 2. DESIGNATION a) voluntary recognition b) direct certification ☛ CERTIFICATION ELECTION - process of determining by secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit, for purposes of collective bargaining. ☛ DIRECT CERTIFICATION - process whereby the Med-Arbiter directly certifies a labor organization of an appropriate bargaining unit of a company after a showing that such petition is supported by at least a majority of the employees in the bargaining unit. It is no longer allowed. (EO 111)
☛ VOLUNTARILY RECOGNITION -
process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate bargaining unit after a
CERTIFICATION ELECTION
CONSENT ELECTION
1. aimed at determining the sole and exclusive bargaining agent of all the employees in an appropriate bargaining unit for the purpose of collective bargaining;
1. an agreed one, its purpose being merely to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit
2. separate and distinct from a consent election
2. from the very nature of consent election, it is a separate and distinct process and has nothing to do with the import and effect of a certification election
EFFECT OF VOLUNTARILY RECOGNITION BY THE EMPLOYER: -
By voluntarily recognition of the employer, the labor organization recognized by the employer as the exclusive bargaining agent may collectively bargain with the employer.
☛ WHEN IS THE CONDUCT OF A CERTIFICATION ELECTION MANDATORY ON THE PART OF THE BLR? 1.
2.
In an unorganized company – a. upon the filing of a verified petition by a legitimate labor organization; or b. upon the filing of a petition by the employer when such employer is requested by the employees to bargain collectively. In an organized company upon the filing of a verified petition by a legitimate labor organization questioning the majority status of the incumbent bargaining agent within the 60-day freedom period before the expiration of a CBA.
-
The petition must be supported by the written consent of at least 25% of all the employees in the appropriate bargaining unit.
NOTE: In case the establishment is organized, the employer cannot file a petition for certification election; only a legitimate labor organization can file such petition.
☛ WHEN MAY A LABOR ORGANIZATION FILE A PETITION FOR CERTIFICATION ELECTION: 1.
2.
Where the establishment is not organized, it can file a petition for certification election at any time, subject however to the ONE-ELECTION-PER-YEAR RULE. In an organized establishment – a. when there is a CBA, the labor organization can file a petition for certification election within the 60-day freedom period (CONTRACT-BAR RULE ) b. when there is no CBA, then the labor organization can file a petition for certification election at any time, subject to the “Deadlock” bar Rule.
☛ DEADLOCK BAR RULE, a petition for certification election can only can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout.
☛ REQUISITES BEFORE A LABOR UNION CAN BE DECLARED A WINNER: 1. Majority of the eligible voters cast their votes. 2. Obtained majority of the valid votes cast. (DOUBLE MAJORITY)
☛
HOW TO DETERMINE THE TWO
MAJORITY RULE : 1. In determining valid votes, eliminate spoiled ballots but include challenged votes 2. In determining the eligible votes cast, include spoiled ballots ☛ RUN-OFF ELECTIONS This happens when: a. The election provides for at least 3 choices(“no union” is always a choice)
b. The election results in none of the choices received the majority votes(50%+1) of the valid votes cast
Run-off shall be conducted: a. Between the labor union receiving the two highest number of votes b. Provided that the total number of votes for all the contending unions is at least 50% of the total votes cast
☛ RULES WHICH WILL PREVENT THE HOLDING OF A CERTIFICATION ELECTION: 1. Contract-Bar Rule 2. One-Year Bar Rule 3. Deadlock Bar Rule ☛ THE CONTRACT-BAR RULE provides that while a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union.
EXCEPTIONS TO THE RULE: 1. Where it is shown that because of a schism in the union the contract can no longer serve to promote industrial stability, and the holding of the election is in the interest of the employees right in the selection of their bargaining representatives. 2. Basic to the contract bar rule is the proposition that the denial of the right to select representatives can be justified only where stability is deemed paramount. 3. Certain types of contracts which do not foster industrial stability such as contracts where the identity of the representative is in doubt or those that are prematurely renewed
☛ REQUIREMENTS IN ORDER INVOKE CONTRACT-BAR RULE:
TO
1. Agreement is in writing, signed by all contracting parties. 2. It must contain the terms and conditions of employment. 3. Covered employees in an appropriate bargaining unit. 4. It is for a reasonable period or duration. 5. It must be ratified. 6. It must be registered with the Bureau.
7. The violation of the contract bar rule or the existence of a duly registered CBA must be specifically impleaded as a defense.
EXCEPTIONS TO THE CONTRACTBAR RULE: 1. CBA is not registered. 2. CBA deregistered. 3. CBA was hastily concluded way ahead of the freedom period 4. CBA is incomplete in itself 5. CBA does not foster industrial peace because of schism 6. CBA was concluded in violation of an order enjoining the parties from entering into a CBA until the issue of representation is resolved.
for the purpose of negotiating an agreement with the respect to - wages, - hours of work and - all other terms and conditions of employment, including - proposals for adjusting any grievances or questions arising under such agreement and - executing a contract incorporating such agreements if requested by either party. -
☛ EFFECT OF AN INVALID AND UNREGISTERED CBA: -
Then there is no bar and therefore a certification election may be held.
NOTE: Registration of CBA only puts into effect the contract-rule bar rule but the CBA itself is valid and binding even if unregistered. ☛ “SUBSTITUTIONARY DOCTRINE”-- It means that where there occurs a shift in the employees’ union allegiance after the execution of a collective bargaining contract with the employer, the employees can change their agent – the labor union, but the collective bargaining contract which is still subsisting, continues to bind the employees up to its expiration date. They, may, however, bargain for the shortening of said expiration date. ☛ DEADLOCK – arises when there is an impasse which presupposes reasonable effort at good faith bargaining which, despite noble intentions, did not conclude in agreement between the parties.
☛ JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING: (Kiok Loy Case) 1. Possession of status of majority representation 2. Proof of majority representation 3. Clear and unequivocal demand to bargain collectively
☛“DUTY TO BARGAIN COLLECTIVELY”The performance of a mutual obligation to meet and convene - promptly and expeditiously and in good faith,
When there is a collective bargaining agreement, the DUTY TO BARGAIN COLECTIVELY shall mean that neither party shall terminate or modify such agreement during its lifetime. - However, either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration period.
☛ Does the Duty to Bargain Collectively carry with it the duty to agree to a proposal or to make a concession? NO. The duty to bargain collectively does not compel any party - to agree to a proposal or - to make a concession
☛ EXAMPLES OF BAD FAITH BARGAINING: Surface Bargaining – occurs when employer constantly changes its positions over the agreement. 2. Boulwarism – occurs a. when the employer directly bargains with the employee disregarding the union. b. Employer submits its proposals and adopts a take it or leave it stand. This is not negotiation because the take it or leave it stand implies threat. 3. Side Bar Technique 1.
☛ DUTIES OF THE PARTIES DURING THE 60-DAY PERIOD: 1. to keep the status quo and 2. to continue in full force and effect and the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. (Art. 253)
✍ ART 253 – A. TERMS OF A COLLECTIVE BARGAINING AGREEMENT DURATION OF THE CBA: 1. With respect to the representation aspect the same lasts for 5 years. 2. With respect to other provisions, the same shall last for a maximum period of 3 years after execution.
RULE ON RETROACTIVE EFFECTS OF AGREEMENT PROVISIONS:
No temporary or permanent injunction pr restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code.
✍ ART 255. EXCLUSIVE BARGAINING REPRESENTATION AND WORKER’S PARTICIPATION IN POLICY AND DECISION-MAKING IN DETERMINING THE APPROPRIATE BARGAINING UNIT THE FF. MUST BE CONSIDERED:
-
Any agreement on such other provisions of the CBA if made within 6 months after the date of expiry, there is AUTOMATIC RETROACTION to the day immediately following such date of expiry.
1. 2. 3. 4.
-
If not within 6 months, the parties may agree to the DATE OF RETROACTION. This rule applies only if there is an EXISTING AGREEMENT. IF THERE IS NO EXISTING AGREEMENT, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement.
☛ ONE-UNION, ONE-COMPANY POLICY- the proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to selforganization for purposes of collective bargaining.
TAKE NOTE: Article 253-A on retroaction does not apply if the provisions were imposed by the Secretary of Labor by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties. ☛ SUCCESSOR-IN-INTEREST DOCTRINE occurs when an employer is succeeded by another employer, the successor-in-interest who is a buyer in good faith has no liability to employees in continuing employment and collectively bargain because they are contracts in personam, as well as for cases of unfair labor practice. EXCEPTIONS TO THE SUCCESSOR-ININTEREST DOCTRINE: 1. If the transfer is done in bad faith; 2. If it was done to circumvent the obligation of the seller; 3. If the successor expressly assumes the obligations of the seller ☛ BARGAINING IMPASSE – exists when good faith bargaining on the part of the parties filed to resolve the issue and there are no definite plans for further efforts to break the deadlock
✍ ART 254. NO INJUNCTION RULE
Will of employees Affinity and unity of employee’s interest Prior collective bargaining history Employment status, such as temporary, seasonal and probationary employees.
EXCEPTIONS: supervisory employees who are allowed to form their own unions apart from the rank-and-file employees LABOR MANAGEMENT COUNCILS deal with the employer on matters affecting employee’s rights, benefits and welfare. They may be formed even if there is already a union in the company.
TITLE VII- A (as incorporated by RA 6715) GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION ✍ ART 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION ☛ GRIEVANCE MACHINERY - Mechanism for the adjustment of controversies or disputes arising from the interpretation or implementation of the CBA and the interpretation or enforcement of personnel policies ☛ GRIEVANCE ARISES: when a dispute or controversy arises over the implementation or interpretation of a CBA or from the implementation or enforcement of company personnel policies, and either the union or the
employer invokes the grievance machinery provision for the adjustment or resolution of such dispute or controversy. -
both parties must resort to grievance machinery
✍ ART 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS ☛ JURISDICTION OF VOLUNTARY ARBITRATORS: EXCLUSIVE ORIGINAL JURISDICTION CONFERRED BY LAW a) interpretation or implementation of the CBA b) interpretation or enforcement of company personnel polices - It is the labor arbiter and not the grievance machinery which has jurisdiction over dismissal pursuant to the union security clause. 1. JURISDICTION BY AGREEMENT OF THE PARTIES - voluntary arbitrators shall also hear and decide all other disputes including ULP and bargaining deadlocks.
☛ GROUNDS FOR JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS: Lack of jurisdiction 1. Grave abuse of discretion 2. Violation of due process 3. Denial of substantial justice 4. Erroneous interpretation of the law
TITLE VIII STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES CHAPTER I STRIKES AND LOCKOUTS ✍ ART. 263. STRIKES, PICKETING AND LOCKOUTS ☛ STRIKE - Any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.
IMPORTANCE
-
it is the most effective weapon of labor in protecting the rights of employees to improve the stems and conditions of their employment.
☛ STRIKE-BREAKER- any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation with any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work or in the exercise of the right to self organization or collective bargaining ☛ STRIKE AREA – the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to an fro before all points of entrance to and exit front said establishment ☛ LOCKOUT - means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.
☛ GROUNDS FOR THE DECLARATION OF STRIKE 1. deadlock in collective bargaining; and/or 2. unfair labor practices
☛ WHO CAN DECLARE ECONOMIC (Bargaining Deadlock) STRIKE: 1. Collective bargaining agent
☛ WHO CAN DECLARE POLITICAL (ULP) STRIKE: 1. collective bargaining agent 2. Legitimate labor organization in behalf of members ☛ SIT-DOWN STRIKE - is characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer.
Is a sit-down strike legal? NO. It borders to a criminal act because the employees trespass on the premises of the employer. ☛ WILDCAT STRIKE- is a work stoppage that violates the labor contract and is not authorized by the union.
Is a wildcat strike valid? NO. It is not valid because it fails to comply with certain requirements of the law, to
wit, notice of strike, vote, and report on strike vote.
where the existence of the union is threatened, the 15-day cooling-off period shall NOT apply AND the union may take action immediately.
Is a “welga ng bayan” legal? NO. A “welga ng bayan” is illegal because it is a political strike and therefore there is no bargaining deadlock nor any ULP. It is a political rally. ☛ PICKETING - is the marching to and fro the employer’s premises, usually accompanied by the display of placards and other signs making knowing the facts involved in a labor dispute. This is an exercise of ones freedom of speech.
ECONOMIC STRIKE
ULP STRIKE
1. Voluntary strike because the employee will declare strike to compel management to grant its demands.
1. Involuntary : labor organization is forced to go on strike because the ULP committed against them by the employer. It is an act of selfdefense since the employees are being pushed to the wall and their only remedy is to strike.
☛ COOLING –OFF PERIOD - that period of time given the NCMB to mediate and conciliate the parties. -
It is that span of time allotted by law for the parties to settle their disputes in a peaceful manner, before staging a strike or lockout.
NUMBER OF DAYS IN THE COOLING OFF PERIOD: 1. If the ground for the intended strike or lockout is DEADLOCK IN COLLECTIVE BARGAINING, the cooling-off period is 30 days from the filing of the notice of strike. 2. If the ground for the intended strikes is UNFAIR LABOR PRACTICE, the coolingoff period is 15 days from the filing of the notice of strike. Therefore: -
HOWEVER, in case of dismissal from employment of union officers duly in accordance with the union constitution and by-laws, which may constitute union busting
-
the cooling off periods and seven-day strike ban is mandatory otherwise the purposes for which they have been imposed would not be achieved
☛ EXCEPTION TO THE COOLING-OFF PERIOD: -
In case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, he 15-day cooling-off period shall NOT apply AND the union may take action immediately but they must still observe the mandatory 7 day period before they can stage a valid strike.
☛ STRIKE VOTE - is a requirement wherein the decision to declare a strike must be: 1. approved by a majority of the total union membership in the bargaining unit concerned, 2. obtained by secret ballot 3. in meetings or referenda called for the purpose. PURPOSE OF A STRIKE VOTE - is to ensure that the intended strike is a majority decision.
☛ When should the strike vote be submitted? The report on the strike vote must be submitted to the DOLE at least 7 days before the intended strike subject to the cooling-off period.
☛ TESTS FOR THE LEGALITY OF A STRIKE: 1. Whether or not is has a lawful PURPOSE. 2. Whether or not is complies with the PROCEDURAL REQUIREMENTS OF THE LAW, to wit – notice of strike 30/15-day cooling-off period strike vote 7-day strike ban 3. Whether or not it is executed through LAWFUL MEANS. -
NOTE: The 3 tests must concur.
☛ EFFECT OF GOOD FAITH OF STRIKERS ON LEGALITY OF STRIKE: -
A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are found out as not true.
☛ WHEN CAN THE SEC. OF LABOR ASSUME JURISDICTION OVER A STRIKE? 1. there exists a labor dispute causing or likely to cause a strike or lockout in a industry indispensable to the national interest, 2. the Secretary of Labor and Employment may assume jurisdiction and EITHER: decide it or certify the same to the Commission for COMPULSORY ARBITRATION. INDISPENSABLE INDUSTRY is based solely upon the discretion of the Secretary of Labor
☛ EFFECTS OF THE ASSUMPTION OF JURISDICTION OF THE SECRETARY 1. automatically enjoining the intended or
-the history of the particular employer’s labor relations of anti-union bias or -because of their connection with an established collateral plan of coercion or interference.” (Rothenberg) ☛ ISSUES THAT THE SECRETARY OF LABOR CAN RESOLVE WHEN HE ASSUMES JURISDICTION OVER A LABOR DISPUTE:
1. Only issues submitted to the Secretary may be resolved by him. (PAL vs. Sec. of Labor, 23 January 1991) 2. Issues submitted to the Secretary for resolution and such issues involved in the labor dispute itself. (St. Scholastica’s College vs. Torres, 29 June 1992) 3. Secretary of Labor may subsume pending labor cases before Labor Arbiters which are involved in the dispute. (Int’l Pharmaceuticals vs. Sec of Labor, 09 January 1992). 4. Power of Sec. of Labor is plenary and discretionary. (St. Luke’s Medical Center vs. Torres, 29 June 1993; reiterated in PAL vs. Confesor, 10 March 1994).
☛ TESTS TO DETERMINE VALIDITY OF STRIKES.
impending strike or lockout as specified in the assumption or certification order. 2. if one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and 3. the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. 4. A motion for reconsideration does not suspend the effects as the assumption order is immediately executory.
1. PURPOSE TEST - The strike must be due
☛ TOTALITY DOCTRINE:
3. IN ACCORDANCE WITH PROCEDURAL & SUBSTANTIVE REQUIREMENTS OF LAW
“… the culpability of an employer’s remarks were to be evaluated not only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances.
☛ In Case the strike is declared legal, are the strikers entitled to strike duration pay?
-
1. If it is an Economic Strike
Under this “doctrine” expressions of opinion by an employer which, though innocent in themselves, frequently were held to be culpable because of the circumstances under which they were uttered,
to either -
-bargaining
deadlock
-
-unfair labor practice.
and/or
2. MEANS EMPLOYED TEST- -A strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which violence is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area.
IT DEPENDS. NO, the strikers are NOT entitled to strike duration pay since the employer should get the equivalent day’s work for what the pays his employees.
2. If it is a ULP Strike
Would depend on the authority deciding (discretionary).
GENERAL RULE: - Strikers are not entitled to their wages during the period of a strike, even if the strike is legal.
EXCEPTIONS: 1.
Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer. -They are entitled to backwages from the date the offer was made -e.g. of Unconditioned offer: “we will return tomorrow” and NOT “willing to return provided…”
2. Where there is return-to-work and the employees are discriminated against. - -They are entitled to backwages from the date of discrimination. ☛ RULES IN STRIKES IN HOSPITALS 1. It shall be the duty of striking employees or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel for the duration of the strike or lock-out. 2. Secretary of Labor may immediately assume jurisdiction within 24 hours from knowledge of the occurrence of such strike or lock-out or certify it to the Commission for compulsory arbitration GOCCs organized under the Corporation Code with no original charter of its own can declare a strike.
☛ ART 264. PROHIBITED ACTIVITIES 1. NO labor organization or employer shall declare a strike or lockout - without first having bargained collectively in accordance with Title VII of this Book or - without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Department. -
NO strike or lockout shall be declared: a. AFTER assumption of jurisdiction by the President or the Secretary or
b. AFTER certification or submission of the dispute to compulsory or voluntary arbitration or -DURING the pendency of cases involving the same grounds for the strike or lockout. b) NO person all obstruct, impede or interfere with OII by force, violence, coercion, threats or intimidation FVCTI - any peaceful picketing by employees - during any labor controversy or in the exercise of the right of selforganization or collective bargaining or shall aid or abet such obstruction or interference. c) NO employer shall use or employ any STRIKE-BREAKER - nor shall any person be employed as a strike-breaker. d) NO public official or employee, including officers and personnel of the New Armed Forces of the Philippines of the Integrated National Police, or armed persons, - shall bring in, introduce or escort in any manner, - any individual who seeks to replace strikes in entering or leaving the premises of a strike area, or work in place of the strikers. - The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to: - maintain peace and order, - protect life and property, and/or - enforce the law and legal order. e) NO person engaged in picketing shall - commit any act of violence, coercion or intimidation or - obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or - obstruct public thoroughfares.
☛ RULES ON REINSTATEMENT OF WORKERS: GENERAL RULE Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequences of the employer’s ULP
REASON: because while out of strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor. - -The declaration of a strike is NOT a renunciation of employment relation. EXCEPTIONS: The following strikers are NOT entitled to reinstatement: 1. union officers who knowingly participates in an illegal strike; and 2. any striker/union member who knowingly participate in the commission of illegal acts during the strike.
✍ ART 265. BALLOTING
IMPROVED
OFFER
☛IMPROVED OFFER BALLOTING: a referendum conducted by the NCMB on or before the 30th day of the strike, for the purpose of determining whether or not the improved offer of the union is acceptable to the union members. applies only to economic strikes (bargaining deadlock) PURPOSE: to ascertain the real sentiment of the silent majority of the union members on strike. ☛ REDUCED OFFER BALLOTTING -
-
a referendum conducted by the NCMB, for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners. applies only to economic strike
✍ ART 266. ARREST AND DETENTION ☛ General rule is that a police officer cannot arrest or detain a union member for union activities without previous consultations with the Secretary of Labor except on grounds of: a. national security b. public peace c. commission of a crime
BOOK SIX POST EMPLOYMENT
TITLE I TERMINATION OF EMPLOYMENT ✍ ART 279. SECURITY OF TENURE ☛ SECURITY OF TENURE is the constitutional right granted the employee, that the employer shall not terminate the services of an employee except for just cause or when authorized by law. An employee that has been dismissed illegally is entitled to: a. Reinstatement b. Backwages
✍ ART 280. REGULAR AND CASUAL EMPLOYMENT ☛ REGULAR EMPLOYMENT- One wherein an employee is engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. ☛ TEMPORARY EMPLOYMENT-One wherein an employee is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer, the completion of which has been determined at the time of the agreement of the employee.
✍ SEASONAL EMPLOYMENT-One wherein an employee is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer.
✍ PROBATIONARY
PERIOD OF EMPLOYMENT - the period needed to determine the fitness for the job, i .e., the time needed to learn the job. It is period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. ☛NOTE: The standard which the probationary employee is to meet must be made known by the employer to the employee at the time of the engagement. ☛Probationary employees may be terminated for the same causes as a regular employee, except that there is an additional ground – failure to meet the standard.
☛ Is it necessary that probationary employment be for a period of 6 months? No. Provided that the following requisites concur: 1. it is done before the lapse of 6 months; 2.employee must be advised of such extension; 3. employee must agree. ☛ EFFECT IF PROBATIONARY EMPLOYEE IS ALLOWED TO WORK BEYOND 6 MONTHS: If the probationary employee is allowed to work beyond the period of 6 months or the agreed probationary period, said employee become a regular employee by operation of law. Under the Labor Code, “an employee who is allowed to work after a probationary period shall be considered a regular employee.” (Art. 281.)
✍ ART. EMPOYER
282.
TERMINATION
BY
☛ JUST CAUSES: 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2. Gross and habitual neglect by the employee of his duties; 3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly organized representative; 4. 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 representative; and 5. Other causes analogous to the following:
✍ ART. 283- 284 AUTHORIZED CAUSES TERMINATION BY THE EMPLOYER:
☛
OF
1. The installation of labor-saving devices (automation) 2. Redundancy (superfluity in the performance of a particular work) 3. Redundancy to prevent losses (there is excess of employees and employer wants to prevent financial losses) 4. The closing or cessation of operation of the establishment or undertaking UNLESS the closing is for the purpose of circumventing the provisions of the Labor Code. 5. Illness a. If illness is incurable within 6 months and is
b. deleterious to his health or his coemployees. c. certification from public heath officer that illness is incurable within 6 months. ☛ STANDARDS UNDER EMPLOYER MAY RETRENCH:
WHICH
AN
1. Losses expected should be imminent and substantial. 2.It must be reasonably necessary and likely to effectively prevent the expected losses 3. Alleged losses if already incurred, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence.
✍ ART. 285. EMPLOYEE
TERMINATION
BY
☛ TERMINATION BY THE EMPLOYEE An employee may terminate WITHOUT JUST CAUSE the employee-employer relationship by serving a WRITTEN NOTICE on the employer at least one month in advance. . The employer upon whom no such notice was served may hold the employee liable for damages. An employee may put an end to establish 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 hour 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.
☛ SEPARATION PAY In case of termination due to a) THE INSTALLATION OF LABOR-SAVING DEVICES OF b) REDUNDANCY, - the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher.
c) RETRENCHMENT TO PREVENT LOSSES and CLOSURES OR CESSATION OF OPERATIONS (NOT due to serious business losses or financial reverses) - The separation pay shall be equivalent to one (1) month pay or at least ½ month pay for every year of service, whichever is higher. d) In the case of ILLNESS - separation pay equivalent to at least one month salary or to ½ month salary for every year of service, whichever is greater, a fraction of at least 6 months shall be considered one (1) whole year. NOTE: If CLOSURE is due to severe financial losses, it is still debatable whether or not separation pay should be given. - I f you are able to prove that such portion of capital (10%) investment has been impaired, the employer should be exempt for the payment of separation pay. ☛ GUIDELINES TO DETERMINE THE VALIDITY OF TERMINATION: 1. Gravity of the offence 2. Position occupied by the employee 3. Degree of damage to the employer 4. Previous infractions of the same offense 5. Length of service
✍ ART 287. RETIREMENT ☛ RETIREMENT AGE -The age of retirement is that specified in the CBA or in the employment contract. If it is not specified, 1. 60-65 -retirement is optional but the employee must have served at least 5 years ;
establishments or operations employing NOT more than ten (10) employees or workers.
BOOK SEVEN TRANSITORY AND FINAL PROVISIONS TITLE II PRESCRIPTION OF OFFENSES AND CLAIMS ✍ ART. 291. MONEY CLAIMS ☛ PERIODS OF PRESCRIPTION
A. MONEY CLAIMS-The prescriptive period is 3 years from the accrual of the cause of action. B. ULP -The prescriptive period of filing a case for ULP is 1 year from the accrual of the cause of action. ☛ ILLEGAL DISMISSAL The prescriptive period of filing a case for illegal dismissal is 4 years from the accrual of the cause of action. (Art. 1146) NOTE: The period of prescription mentioned under Article 281, now Article 292, of the Labor Code, refers to and “is limited to money claims, all other cases of injury to rights of a workingman being governed by the Civil Code. Hence, reinstatement prescribes in 4 years.
POST- EMPLOYMENT ☛ FORMS OF REINSTATEMENT:
2.
65-compulsory retirement age (no need for 5 years of service)
☛ BENEFITS- A retiree is entitled to a retirement pay equivalent at least ½ 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: • 15 days plus 1/12 of the 13th month pay and • the cash equivalent of NOT more than 5 days of service incentive leaves. (22.5 days per year of service) ☛ NOTE: Exempted from the payment of retirement pay are retail, service and agricultural
1. ACTUAL OR PHYSICAL REINSTATEMENT -the employee shall be admitted back to work; 2.
PAYROLL REINSTATEMENT - the employee is merely reinstated in the payroll. ☛ PERIOD COVERED BY THE PAYMENT OF BACKWAGES: Backwages shall cover the period from the date of dismissal of the employee up to the date of actual reinstatement.’ ☛ SECURITY OF TENURE: An employer CANNOT terminate the services of an employee EXCEPT for a just cause or when authorized by law. ☛ REQUIREMENTS OF DUE PROCESS BEFORE AN EMPLOYEE CAN BE REMOVED:
1. written notice to apprise the employee of the particular acts or omission for which his dismissal is sought and is hereby considered as the proper charge; 2. ample opportunity to be employee to be heard and if the employee so decides, with the assistance of counsel; and 3. written notice informing the employee of the employer’s decision to dismiss him. “Under the so-called ‘WENPHIL DOCTRINE” if just or authorized cause exist but the affected employees right to due process has been violated, the dismissal is valid but the employee is entitled to damages by way of indemnification for the violation of the right. On Jan. 27, 2000, the SC in the case of SERRANO vs. ISETANN et. al. Disregarded this WENPHIL DOCTRINE and ruled that if the employee’s right to due process is violated, his dismissal becomes illegal regardless of the existence of a just and authorized cause. ☛ REINSTATEMENT - Restoration of the employee to state from which one has been removed or separated without loss of seniority rights and other privileges. ☛ WHAT HAPPENS IF THERE IS AN ORDER OF REINSTATEMENT BUT THE POSITION IS NO LONGER AVAILABLE? If the position previously occupied by the employee is no longer available at the time of reinstatement, he should be given a substantially equivalent position. ☛ If THERE IS NO SUBSTANTIALLY EQUIVALENT POSITION: If no substantially equivalent position is available, reinstatement should not be ordered because that would in effect compel the employer to do the impossible. In such a situation, the employee should merely be given separation pay of the one month salary for every year of service (1:1). ☛ CIRCUMSTANCES WHEN COMPANY MAY NOT REINSTATE DESPITE ORDER OF REINSTATEMENT 1. Transfer of business ownership;There is no law requiring a purchasing corporation to absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly dismissed employees CANNOT be enforced against the new owner UNLESS there is an express agreement on the assumption of liabilities by the purchasing corporation. 2. When reinstatement is rendered impossible due to the abolition of the position; 3. When the business has closed down; 4. Physical incapacity of employee
5. Doctrine of Strained Relations-When the employer can no longer trust the employee and vice-versa, reinstatement could not effectively serve as a remedy. Applies only to positions which require trust and confidence; or Under the circumstances where the employment relationship has become so strained to preclude a harmonious working relationship, and that all hopes at reconciliation are nil after reinstatement, it would be more beneficial to accord the employee backwages and separation pay. ☛BACKWAGES-Relief given to an employee to compensate him for lost earnings during the period of his dismissal. How computed: Under existing law, backwages is computed from the time of the illegal dismissal up to time of actual reinstatement. ✍ WHAT ARE INCLUDED IN COMPUTATION OF BACKWAGES
THE
1. transportation and emergency allowances 2. vacation or service incentive leave and sick leave 3. 13th month pay. However, facilities such as uniforms, shoes, helmets and ponchos should NOT be included in the computation of backwages. REASON: said items are given free, to be used only during official tour of duty not for private or personal use. ☛ CIRCUMSTANCES THAT AWARD OF BACKWAGES: 1. 2. 3. 4. 5. 6.
PREVENT
death of the employee physical and mental incapacity business reverses closure of business reinstatement of dismissed employee confinement in jail
SPECIAL LAWS SOCIAL SECURITY SYSTEM ☛ COVERAGE: Compulsory upon all employees not over 60 years of age and their employers In case of domestic helpers, their monthly income shall not be less than one thousand pesos Any benefit already earned by the employees under private benefit plans existing at the time of the approval of the Act shall not be
discontinued, reduced or otherwise impaired and shall continue to remain under the employer’s management unless there is an existing agreement to the contrary Filipinos recruited by foreign based employers for employment abroad may be covered by the SSS on a voluntary basis Compulsory upon such self- employed persons as may be determined by the Commission including but not limited to the following: 1. all self employed professionals 2. partners and single proprietors 3. actors and actresses directors 4. professional athletes, coaches, trainers 5. individual farmers and fishermen ☛ EFFECTIVE DATE OF COVERAGE: Shall take effect on the first day of the operation with respect to the employer and that of the employee on the day of his employment ☛ DEPENDENTS: 1. the legal spouse entitled by law to receive support from the member 2. the legitimate, legitimated or legally adopted and illegitimate child who is unmarried, not gainfully employed and has not reached 21 years of age or if 21 years of age, he is congenitally incapacitated or while still a minor has been permanently incapacitated and incapable of selfsupport, physically and mentally and 3. the parent who is receiving regular support from the member ☛ EMPLOYER Any person natural or juridical, domestic or foreign, who carries on in the Philippines, any trade business, industry undertaking or activity of any kind and uses the services of another person who is under his orders as regards the employment except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government Self- employed person shall be both the employer and employee at the same time. ☛ EMPLOYEE
Any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer- employee relationship. ☛ BENEFICIARIES The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted and illegitimate children who shall be the primary beneficiaries of the member, PROVIDED that the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children In the absence of the legitimated, legally adopted or legitimate children, illegitimate children shall be entitled to 100% of the benefits. In their absence, the dependent parents who shall be the secondary beneficiaries. In the absence of all of the foregoing, any person designated by the covered employee as secondary beneficiary
MEDICARE ☛ COVERAGE: All SSS members are covered under the Medicare program. Total permanent disability, unemployed partial permanent disability, retirement pensioners and survivors of deceased members of the SSS and their dependents are also entitled to medical care benefits without need of additional contributions ☛ PERIOD OF ENTITLEMENT The member or pensioner is entitled to a maximum of 45 days confinement in a hospital in a given calendar year. His dependents are given another set of 45 days to be shared among themselves. Unused benefits cannot be carried over to the succeeding year.
GOVERNMENT SERVICE INSURANCE SYSTEM ☛ COMPULSORY MEMBERSHIP Compulsory for all employees receiving compensation who have not reached the compulsory retirement age, irrespective of employment status, except members of the Armed Forces and the PNP, subject to the
condition that they must settle first their financial obligations with the GSIS and contractuals who have no employer and employee relationship with the agencies they serve. Except for the members of the Judiciary and constitutional commissions who shall have life insurance only, all members of the GSIS shall have life insurance, retirement and all other social security protection such as disability, survivorship, separation and unemployment benefits. ☛ COMPUTATION OF SERVICE The computation of service for the purpose of determining the amount of benefits payable shall be from the date of the original appointment/ election including periods of service at different times under the authority of the Republic of the Philippines and those that may be prescribed by the GSIS in coordination with the Civil Service Commission. All service credited for retirement, resignation or separation for which corresponding benefits have been awarded shall be excluded in the computation of service in case of reinstatement in the service of an employer and subsequent retirement or separation which is compensable. ☛ UNEMPLOYMENT OR INVOLUNTARY SEPARATION BENEFITS Monthly cash payments equivalent to 50% of the average monthly compensation shall be paid to a permanent employee who is involuntarily separated from the service due to the abolition of his office or position usually resulting from reorganization. ☛ RETIREMENT BENEFITS: CONDITIONS FOR ENTITLEMENT 1. Member has rendered at least 15 years of service 2. He is at least 60 years of age at the time of retirement 3. He is not receiving a monthly pension benefit from permanent total disability ☛ PERMANENT DISABILITY BENEFITS Monthly income benefit for life equal to the basic monthly pension effective from the date of the disability. Provided: 1. He is in the service at the time of the disability
2. If separated from service, he has paid at least 36 monthly contributions within the 5 year period immediately preceding the disability or has paid a total of at least 180 monthly contributions prior to the disability Unless the member has reached the minimum retirement age, disability benefits shall be SUSPENDED when: 1. he is reemployed 2. he recovers from his disability as determined by the GSIS, whose decision shall be final and binding 3. he fails to present himself for medical examination when required by the GSIS ☛ TEMPORARY DISABILITY BENEFITS 75% of the current daily compensation for each day or fraction thereof of temporary disability benefit not exceeding 120 days in one calendar year after exhausting all sick leave credits and collective bargaining agreement sick leave benefits. PROVIDED: 1. he is in service at the time of his disability 2. if separated, he has rendered at least 3 years of service and has paid at least 6 monthly contributions in the 12- month period immediately preceding the disability HOWEVER: A member cannot enjoy temporary total disability benefit and sick leave pay simultaneously. In no case shall it be less than 70 pesos a day. ☛ SURVIVORSHIP BENEFITS: Upon the death of a member, the primary beneficiaries shall be entitled to: survivorship pension, PROVIDED: a. member was in service at the time of his death’ b. if separated from service, has rendered at least 3 years of service and paid 36 monthly contributions with the 5- year period immediately preceding his death or has paid a total of at least 180 monthly contributions. ☛ LIFE INSURANCE BENEFITS
All employees except members of the AFP and the PNP shall be compulsorily covered with life insurance. ☛ PRESCRIPTION OF CLAIMS Claims for benefits under the Act except for life and retirement shall prescribe after 4 years from the date of the contingency. ☛ JURISDICTION
1. Money Claims.-, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. ☛ LIABILITIES
GSIS shall have the exclusive and original jurisdiction to settle any dispute arising under the Act and any other laws administered by the GSIS.
RA 8042: "MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT 0F 1995" Approved on 07 June 1995 and took effect on 15 July 1995. As indicated in its title, the law institutes the policies of overseas employment and establishes a higher standard of protection and promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress. ☛ GUARANTEE OF PROTECTION FOR OVERSEAS WORKERS The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee for the protection of the receiving country of the rights of overseas Filipino workers: 1. It has existing labor and social laws protecting the rights of migrant workers; 2. It is a signatory to multilateral conventions, declarations or resolutions relating to the protection of migrant workers; 3. It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and, 4. It is taking positive, concrete measures to protect the rights of migrant workers. ☛ JURISDICTION - NLRC RA 8042 has transferred to the NLRC the jurisdiction over employer-employee cases
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims, or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
POEA The POEA retains original and exclusive jurisdiction to hear and decide: 1. all cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and, 2. disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers.
Three Month's Pay Under RA 8042 The date the employment termination occured is material. On or after 15 July 1995, the law to apply is RA 8042. Under Section 10 of RA 8042, a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract, is entitled to the full reimbursement of his placement fee with interest at twelve percent (12%) per annum, plus his salary for the unexpired portion of his employment contract or
for three (3) months for every year of the unexpired term, whichever is LESS.
☛ VENUE A criminal action arising from illegal recruitment shall be filed with the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. The court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. ☛ PRESCRIPTIVE PERIODS Illegal recruitment cases under this Act shall prescribe in five (5) years; provided, however, That illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. (Sec. 12, R.A. 8042) PROHIBITED ACTS IN THE RECRUITMENT AND PLACEMENT OF WORKERS UNDER THE LABOR CODE ARE RETAINED UNDER THE MIGRANT WORKERS ACT WITH THE ADDITION OF THE FOLLOWING:
☛
1. Failure to deploy employee without valid reason 2. Failure to reimburse expenses incurred in connection with his documentation and processing in cases that deployment did not take place
☛ DIFFERENT FUNDS CREATED UNDER THE LAW: 1. 2. 3. 4.
Repatriation fund Loan Guaranty fund Legal Assistance fund Congressional Migrant Workers Scholarship fund
☛ GOVERNMENT AGENCIES MOBILIZED: 1. 2. 3. 4.
DFA DOLE POEA OWWA
GUIDELINES ON THE RIGHT TO ORGANIZE OF GOVERNMENT EMPLOYEES (E. O. 180)
agencies of the government, including government- owned or controlled corporations WITH original charters All government employees can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interest. They can also form in conjunction with appropriate government authorities, labor- management committees, works councils and other forms of workers’ participation schemes to achieve the same objectives. High- level employees whose functions are normally considered as policy- making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank and file government employees. ☛ PROTECTION ORGANIZE
OF
THE
RIGHT
TO
1. Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees’ organization or participation in the normal activities of the organization. 2. Government authorities shall not interfere in the establishment, functioning or administration of government employees’ organization through acts designed to place such organization under the control of the government authority ☛ REGISTRATION Government employees’ organization shall register with the Civil Service AND the Department of Labor and Employment .
13TH MONTH PAY LAW (P.D. 851) ☛ WHO ARE EXCLUDED FROM COVERAGE: 1. government employees 2. employees already receiving 13th month pay 3. household helpers 4. employees paid purely on commission basis
☛
COVERAGE -Applies to all employees of all branches, subdivisions, instrumentalities and
☛ WHAT CAN BE CONSIDERED AS 13TH MONTH PAY: 1. Christmas bonus 2. Midyear bonuses
3. Cash bonuses
X. SOCIAL WELFARE LEGISLATION COMPARATIVE CHART SSS (RA 1161))
STATEMENT OF POLICIES
EMPLOYER
GSIS (RA 8291
ECC (PD 626)
To establish, develop, promote and perfect a sound and viable tax exempt social security system suitable to the needs of the people which shall provide employees and their beneficiaries protection against the hazards of disability, sickness, old age, death and other contingencies resulting in loss of income or financial burden. Employers in private sector
All government agencies and instrumentalities , including GOCCs
All employers (private or public)
1. Employees not over 60 years of age and their employers. 2. 2. Domestic helpers whose monthly income is not less than P1,000.00. 3. Self-employed persons as determined by the Commission : a) self-employed professionals; b) partners and single proprietors; c) actors and actresses, directors, etc; d) professional athletes, coaches, trainers, etc. and e) individual farmers and fishermen.
1. Compulsory for all employees receiving compensation who have not reached compulsory retirement age irrespective of employment status.
Any person compulsorily covered by GSIS or SSS Any person employed as casual, emergency, temporary, substitute or contractual
COVERAGE COMPULSORY
*Including barangay and sanggunian officials
VOLUNTARY
1. Spouses who devote full time to managing of household and family affairs, UNLESS they are also engaged in other vocation or employment which is subject to MANDATORY coverage. 2. 2. Filipinos recruited by foreign-based employers for employment abroad. 3. Employees separated from employment by paying TOTAL contribution (meaning : both employer and employee’s share)
BY-ARRANGEMENT Any foreign government, international organization or their wholly owned instrumentality MAT enter into agreement for the inclusion of their employees EXCEPT those covered by their own respective civil service retirement systems. EXEMPTED EMPLOYMENT
1. purely CASUAL and not for purpose or occupation of the employer. 2. Performed in an alien vessel by an employee if he is employed when such vessel is outside of the Philippines. 3. By the government of the Philippines or instrumentality or agent thereof. 4. Foreign government of international organization.
1. AFP 2. PNP 3. Contractuals who have no employer and employee relationship * Members of the judiciary and the Constitutional Commissions – life insurance only
BENEFITS
1. 2. 3. 4. 5. 6. 7. 8.
Monthly pension Dependents’ pension Retirement Death Benefits Permanent Disability benefits Funeral Sickness Maternity
1. 2. 3. 4. 5. 6.
Life Insurance Retirement Disability Survivorship Separation Unemployment
* Life insurance for the members of the judiciary and constitutional commissions.
BENEFICIARIES PRIMARY
1. Dependent spouse until remarriage 2. Dependent legitimate, legitimated or legally adopted and illegitimate children
1. Legal, dependent spouse until remarriage 2. Dependent children – defines as the legitimate, legitimated, legally adopted child, including the illegitimate child, who is unmarried, not gainfully employed, not over the age of majority, or is over the age of majority but is incapacitated and incapable of self-support.
SECONDARY
1. In the absence of primary beneficiaries, dependent parents
1. Dependent parents 2. Legitimate descendants subject to the restrictions on dependent children, the legitimate descendants
CONTRIBUTIONS
1. Employer’s contributions 2. Employees’ contribution 3. Government contribution
1. Employer’s contribution 2. Employee’s contribution
MODE OF COLLECTION
1. For those with employees – Employee contribution shall be deducted by the employees based on an approved schedule. Employer shall remit BOTH EMPLOYEE AND EMPLOYER contribution to the system. 2. For self-employed – Self-employed shall pay BOTH EMPLOYER AND EMPLOYEE contributions to the system. 3. For government contribution – remitted to the SSS within the first 10 days of each calendar month following the month got which they are applicable.
1. The employer shall deduct each month from the salary or compensation of each employee the contribution payment. Employer shall remit to the system within 10 days the Employer-Employee contributions.
* Contributions under this Act in case where an employer refuses or neglects to pay the same shall be collected by the SS in the same manner as taxes are made collectable under the National Internal Revenue Code.
PENALTIES
1. False statement or misrepresentation as to any compensation as to any compensation paid or received or whoever makes or causes to be made any false statement of a material fact in any claim for any benefit payable under this Act – Art. 172 of the RPC (falsification be private individuals and falsified documents) 2. Obtaining or receiving any money or check without being entitled thereto with intent to defraud any covered employee, employer or SSS – fine of P5,000.00 to P20,000.00 and imprisonment of 6 years and 1 day to 12 years or both. 3. Buys, sells, offers for sale, uses, transfers, takes or gives in exchange, or pledges or give in pledge, except as authorized in this Act – fine of P5,000.00 to P20,000.00 or imprisonment of 6 years and 1 day to 12 years or both. 4. Makes, alters, forges or counterfeits any stamps, coupon, ticket or other device prescribed by the Commission, or uses, sells, lends or in his possession any such altered, forged, or counterfeited materials, or makes, uses or sells or has in his possession any materials used in the manufacture of such stamp, coupon, ticket or book – fine of P5,000.00 to P20,000.00 or imprisonment of 6 years and 1 day to 12 years or both.
1. Participating directly or indirectly in commission of fraud, collusion, falsification or misrepresentation in any transaction of the GSIS – Article 172 of the RPC (Falsification by private individuals and use of falsified documents) 2. Receiving money or check involving provision of this act, without being entities with intent to defraud – fine of P5,000.00 to P20,000.0 or imprisonment of 6 years and 1 day to 12 years or both. 3. Refusing to comply with the provisions of this Act – fine of P5,000.00 to P20,000.00 or imprisonment of 6 years and 1 day to 12 years or both. 4. Failure to include in the annual budget corresponding employer contributions by finance officers, treasurers, cashiers, etc. – 6 months and 1 day to 6 years imprisonment and a fine of P3,000.00 to P6,000.00 and absolute perpetual disqualification from holding office. 5. Misappropriation or taking of funds and property of the GSIS for purposes other than authorized in this Act – Article 217 of RPC
5. Fails or refuses to comply with the provisions promulgated by the Commission – fine of P5,000.00 ot P20,000.00 or imprisonment of 6 years and 1 day to 12 years or both. 6. Misappropriation of funds – penalties under Article 217 of the RPC. 7. Failure to remit the said deductions to the SSS within 30 days from date they become due – Article 315 of the RPC (Estafa). ENTITLED TO RETIREMENT BENEFITS
Member has reached age of 60 or 65.
(Malversation of public funds or properties). 6. For head of officers who fails or refuses payment or remittance of GSIS payments within 30 days from the time its demandable – imprisonment of 1 year to 5 years and fine of P10,000.00 to P20,000.00 and aboslute perpetual disqualification. OPTIONAL. Member meets the ff : 1. has worked for at least 15 years. 2. Is at least 60 years of age at time of retirement, and 3. Is not receiving monthly pension benefit from permanent total disability COMPULSORY. Member is 65 years with at least 15 years of service (if service is less than 15 years, he may be allowed to continue in accordance with Civil Service Rules and Regulations.)
DISABILITIES DEEMED PERMANENT TOTAL
1. Complete loss of sight in both eyes. 2. Loss of two limbs at or above the ankle or wrist. 3. Permanent complete paralysis of two limbs. 4. Brain injury resulting in incurable imbecility or insanity. 5. Other cases determined by SSS.
1. Complete loss of sight in both eyes. 2. Loss of two limbs at or above the ankle or wrist. 3. Permanent complete paralysis of two limbs. 4. Brain injury resulting in incurable imbecility or insanity 5. Other cases determined by GSIS.
1. Temporary total disability lasting over 120 days. 2. Complete loss of sight in both eyes. 3. Loss of limbs at or above the ankle or wrist. 4. Permanent complete paralysis of two limbs.
5. Brain injury resulting in incurable imbecility or insanity. 6. Other cases determined by Medical Director of SSS DISABILITIES DEEMED PERMANENT PARTIAL
Complete and permanent loss of use of a digit, limb, ear (or both ears), hearing in one or both ears, or sight in one eye.
SYSTEM EXCUSED FROM LIABILITY
AMOUNT OF FUNERAL BENEFITS
P12,000.00
WHO PAYS REMITTANCES?
Employer and Employee
COVERAGE
Occurrence of contingency whether or not work-connected.
NOTICE REQUIREMENT
Employee to notify employer within 5 days from injury or illness(unless no longer necessary under the exceptions)
Complete and permanent loss of a digit, limb, ear (or both ears), hearing in one or both ears, or sight in one eye.
Complete and permanent loss of use of a digit, limb, ear (or both ears), hearing in one or both ears, or sight in one eye.
For permanent disability in the ff. cases : 1. grave misconduct 2. notorious negligence 3. willful intent to kill self or another 4. habitual intoxication
For all contingencies in the ff. cases : 1. intoxication 2. willful intent to injure or kill one’s self or another 3. notorious negligence
P12,000.00 (to be raised to P18,000.00 in year 2002) Employer And Employee
P10,000.00
Occurrence of contingency whether or not work-connected.
Work-related illness or injury.
Employer
Employee to notify employer within 5 days from injury or illness (unless it is no longer necessary under the
exceptions) Employer to record the same in logbook within 5 days from notice. Employer to notify SSS or GSIS within 5 days from recording in logbook.
Employer to notify SSS within 5 days from notice.
EFFECT OF ERRONEOUS PAYMENT DISPUTE SETTLEMENT
1. 2. 3. 4.
File claim with SSS. Appeal to Social Security Commission. Appeal to CA. Appeal to SC
Legal And eligible claimant may still demand benefits, without prejudice to right of GSIS to sue improper claimant.
SSS absolved unless notified of other claim prior to payment.
1. File claim with GSIS. 2. Appeal to GSIS Board. 3. Appeal to CA. 4. Appeal to SC.
1. 2. 3. 4.
File claim with SSS and GSIS. Appeal to ECC. Appeal to CA Appeal to SC
* Appeals shall be governed by Rules 43 and 45 of the 1997 Rules of Civil Procedure EXCLUSIVENESS OF BENEFITS
May Apply for same benefits in EC, if in private sector. May not receive benefits for same contingency under GSIS offers more (he may then receive deficiency)
Whenever other laws provide similar benefits for the same contingencies, members who qualifies has option to choose. If benefits chosen are less than under GSIS, he may get the difference. However, with respect to work-
May apply for the same benefits under SSS, if in the private sector. May apply for same benefits under GSIS, if in public sector (applying Mazo Sugar Central vs CA case.
connected illness and injuries, he may also recover in full under ECC, applying the Mazo Sugar Central vs CA case. PRESCRIPTIVE PERIODS
10 years from the time the right of action accrues.
4 years from date of contingency except life and retirement benefits
XI. CHART ON JURISDICTION Bureau Of Labor Relations 1. Inter-union dispute 2. Intra-union dispute 3. Labor Management Relations except interpretation or implementation of the CBA
Grievance Machinery 1. Interpretation or implementation of the CBA 2. Interpretation or enforcement of company personnel policies
Voluntary Arbitration 1. Unresolved Grievances 2. Agreement on other labor dispute(Bargaining deadlock, ULP)
Labor Arbiter
(UTRCCC-M) 1. ULP
NLRC 1. Appellate jurisdiction over Labor Arbiters
2. Termination Disputes 2. Injunction 3. Reinstatement-with cases involving wages 3. Contempt 4. Claims of damages arising from E-E relationship 5. Cases involving prohibited acts in strikes
(ART. 264) 6. Claims arising from E-E relationship including those of domestic service, involving amount exceeding P5,000.0 7. Migrant Worker Cases
