Labor Law Reviewer Ungos

1! Labor'Standards'Reviewer'–'Atty.'Ungos!

' ' LABOR STANDARDS Labor Code of the Philippines Annotated by Ungos

PRELIMINARY TITLE CHAPTER 1 GENERAL PROVISIONS Art. 1. Name of Decree. - This Decree shall be known as the “Labor Code of the Philippines.” COMMENT: 1. Salient Features of the Labor Code a. It re-orients labor laws towards development and employment goals; b. It institutionalizes the NLRC to facilitate the speedy settlement of labor disputes; c. It establishes a new system of workmen’s compensation; d. It establishes a system for employment of overseas workers and optimizes national benefit therefrom in the form of dollar remittances and improved skills and technology for our people; and e. It institutionalizes voluntary arbitration as a mode of settling labor disputes. Art. 2. Date of Effectivity. – This Code shall take effect six (6) months after its promulgation. COMMENT: 1. Effectivity of the Labor Code 8 Took effect on November 1, 1974 8 Promulgated on May 1, 1974 Art. 3. Declaration of Basic Policy. – The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assurethe rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

COMMENT: 1. Reason for Affording Protection to Labor 8 Protection to labor is intended to raise the worker to equal footing with the employer and shield him from abuses brought about by the necessity for survival. 8 Sanchez vs. Harry Lyons – employer stands on higher footing than the employee. First, there is greater supply than demand for labor. Second, the need for employment by labor comes from vital and even desperate necessity. 8 Article 24 of the Civil Code – “In all contractual property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection.” 2. Extent of the Protection 8 The protective mantle is available not only against oppressive employees but also against unscrupulous union leaders. 8 Heirs of Teodulo Cruz vs. CIR – The union is an agent of its members for the purpose of securing for them fair and just wages and good working conditions and is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted to it. In the case, the union leadership was recreant in its duty towards the union members for failing to disclose the full situation of their judgment credit against respondent. Fair dealings, which is fiduciary in nature, arises from two factors: a. Degree of dependence of the individual employee on the union organization b. A corollary of the first; is the comprehensive power vested in the union with respect to the individual. 3. Limitations a. Protection to labor cannot be used as a pretext to defeat the rights and prerogatives of an employer. Thus, the validity of the dismissal of an employee found guilty of violating rules designed for the safety of the employees themselves, should be upheld because it protects labor and at the same time gives the employer its due. b. Protection to labor cannot be used as an excuse to distribute charities at the expense of an employer. Courts cannot render

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judgment on the basis of sympathies and inclinations, and consequently, distribute charities at the expense of the employer, because our constitutional government assures the latter against deprivation of property except in accordance with the statues and supplementary equitable principles. Protection to labor is not available where both parties have violated the law because in such a case, neither party is entitled to protection.

Art. 4. Construction in Favor of Labor. – All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations shall be resolved in favor of labor. COMMENTS: 1. Reason for the Law 8 Doubts are resolved in favor of labor in line with the principle that those who have less in life should have more in law. 8 When conflicting interest of labor and capital are weighed on the scales of social justice, the heavier influence of the latter must be counter-balanced by the sympathy and compassion the law must accord the underprivileged worker. 8 A contrary ruling would be a dilution and emasculation of the protection to labor clause of the Constitution. 2. Applicability 8 Article 4 applies only when there is a doubt. 8 When there is no doubt, there is no room for construction. 8 Where the evidence is clear that an employee is not an asset but a liability that delays production and sets a bad example to his co-workers, the courts should not hesitate to confirm or order his dismissal. 3. Limitation 8 The fundamental principles of due process should sternly be applied on both the poor and the rich in order to attain proper justice. 8 The benevolent policy of the law towards te employee does not oblige courts to be unjust and unfair to employers. . ART. 5. Rules and Regulations. The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary IRRs.

Such RRs shall become effective 15 days after announcement of their adoption in newspapers of general circulation. • A grant of quasi-legislative power to the DOLE and other gov’t agencies charged with the administration and enforcement of the Labor Code or any part thereof. 8 POEA 8 National Wages and Productivity Commission 8 Employees’ Compensation Commission 8 NLRC • Limitation: cannot enlarge or amend the provisions of the Labor Code • Effectivity of LC IRRs: February 3, 1975 ART. 6. Applicability. All rights and benefits granted to workers under this Code shall, except as may otherwise be provided herein, apply alike to all workers, whether agricultural or non-agricultural. • The LC applies only to employees in the private sector, whether agricultural or non-agricultural. • Government employees: Civil Service Law • GOCCs created by special charter: Civil Service Law • GOCCs organized under the Corporation Law: LC • To be covered by the LC, there must be employer-employee relationship. • E-E criteria: (Viana v. Al-LAgadan) 1. Selection and engagement of employee 8 Hiring 8 Written contract, not necessary 8 An understanding that one is to render service to the other, and a recognition by them of the right of one to order and control the other is sufficient 2. Payment of wages 8 Wages – remuneration of earnings 8 Considered wages if paid in consideration of: a) The labor being performed b) The results or finished work 3. Power of dismissal 8 Person hired is subjected to the rules of discipline of the employer 4. Power to control the employee’s conduct 8 Most important element


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Control test: the person for whom the services are performed reserves the rights to control not only the end to be achieved but also the means to be used in reaching such end. 8 The control should be on both the means and the end Insurance agents: 1. Salaried personnel who keep definite hours and work under the control and supervision of the company – E-E relationship exists 2. Registered representatives who work on commission basis – no E-E relationship The nature of the relationship between a company and its collecting agents depends on the circumstances of each particular relationship. There exists an E-E relationship between a corporation and an in-house lawyer as they are paid regular salaries E-E relationship exists between a school and its professors. The school has control over the work of the professors and the latter are compensated for their services by wages or salaries rather than by profits. No E-E relationship exists between working students and the colleges or universities. Such rule applies only to labor controversies, not to civil suits for damages arising from a tortuous act of a working student. E-E relationship between resident physicians and training hospitals exists, unless: 1. There is training agreement between them 2. The training program is duly accredited or approved by the appropriate government agency E-E relationship exists between hospitals and their consultants only for purposes of allocating responsibility in medical negligence cases E-E relationship between a jeepney owner and driver under the boundary system exists. There is no E-E relationship between a shipping company and the workers of stevedoring or arrastre company, unless the same in fact acted as agent only. An E-E relationship is created by contract and cannot be forced upon either party simply upon order of a labor arbiter.

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Any competent and relevant evidence may be admitted as proof of E-E relationship. The E-E relationship is deemed suspended in the ff cases: 1. When the employee is under suspension, either as a disciplinary penalty or as a preventive measure during the pendency of a disciplinary proceedings against him 2. During off season, in case of regular seasonal employees 3. When fishing vessels are drydocked or undergoing repairs 4. When an employee is laid-off for a period not exceeding 6mos due to suspension of business operations 5. When an employee fulfills a civic or military duty Termination of E-E relationship: 1. Dismissal 2. Resignation or abandonment of employment 3. Expiration of employment period Factors that do not interrupt employment relationship: 1. Leave of absence with pay 2. Illegal dismissal 3. Strike CHAPTER II Emancipation of Tenants

Art. 7. Statement of objectives.Inasmuch as the old concept of land ownership by a few has spawned valid and legitimate grievances that gave rise to violent conflict and social tension and the redress of such legitimate grievances being one of the fundamental objectives of the New Society, it has become imperative to start reformation with the emancipation of the tiller of the soil from his bondage. Art. 8. Transfer of lands to tenant-workers.Being a vital part of the labor force, tenant-farmers on private agricultural lands primarily devoted to rice and corn under a system of share crop or lease tenancy whether classified as landed estate or not shall be deemed owner of a portion constituting a family-size farm of five (5) hectares, if not irrigated and three (3) hectares, if irrigated. In all cases, the land owner may retain an area of not more than seven (7) hectares if such landowner is cultivating such area or will now cultivate it.


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' ' Art. 9. Determination of land value.For the purpose of determining the cost of the land to be transferred to the tenant-farmer, the value of the land shall be equivalent to two and one-half (2-1/2) times the average harvest of three (3) normal crop years immediately preceding the promulgation of Presidential Decree No. 27 on October 21, 1972. The total cost of the land, including interest at the rate of six percent (6%) per annum, shall be paid by the tenant in fifteen (15) years of fifteen (15) equal annual amortizations. In case of default, the amortization due shall be paid by the farmers’ cooperative in which the defaulting tenant-farmer is a member, with the cooperative having a right of recourse against him. The government shall guarantee such amortizations with shares of stock in government-owned and government-controlled corporations. Art. 10. Conditions of ownership.No title to the land acquired by the tenant-farmer under Presidential Decree No. 27 shall be actually issued to him unless and until he has become a full-pledged member of a duly recognized farmers’ cooperative. Title to the land acquired pursuant to Presidential Decree No. 27 or the Land Reform Program of the Government shall not be transferable except by hereditary succession or to the Government in accordance with the provisions of Presidential Decree No. 27, the Code of Agrarian Reforms and other existing laws and regulations. Art. 11. Implementing agency.The Department of Agrarian Reform shall promulgate the necessary rules and regulations to implement the provisions of this Chapter. BOOK I PRE-EMPLOYMENT Art. 12. Statement of objectives.It is the policy of the State:

a. To promote and maintain a state of full employment through improved manpower training, allocation and utilization; b. To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment; c. To facilitate a free choice of available employment by persons seeking work in conformity with the national interest; d. To facilitate and regulate the movement of workers in conformity with the national interest; e. To regulate the employment of aliens, including the establishment of a registration and/or work permit system; f. To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives; g. To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad. Title I RECRUITMENT AND PLACEMENT OF WORKERS Chapter I GENERAL PROVISIONS Art. 13. Definitions. a. "Worker" means any member of the labor force, whether employed or unemployed. b. "Recruitment and placement" refers to 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


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c. "Private fee-charging employment agency" means any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both.

8 Number of persons dealt with, not essential Recruitment and Contracting/Subcontracting placement The agency merely The contractor/subcontractor engages a job applicant for undertakes a specific job or the purpose of placing him service for a principal with the with another employer use of its own employees Needs a license or Doesn’t authority from the DOLE

d. "License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency.

Art. 14. Employment promotion.The Secretary of Labor shall have the power and authority:

e. "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers.

a. To organize and establish new employment offices in addition to the existing employment offices under the Department of Labor as the need arises;

f. "Authority" means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

b. To organize and establish a nationwide job clearance and information system to inform applicants registering with a particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;

g. "Seaman" means any person employed in a vessel engaged in maritime navigation.

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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.

h. "Overseas employment" means employment of a worker outside the Philippines. i. "Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination. •

Recruitment and placement 8 Refers to any act of hiring or procuring workers. 8 It includes: a. Referrals b. Contract services c. Promising or advertising a local or overseas job

To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provide assistance in the relocation of workers from one area to another; and

d. To require any person, establishment, organization or institution to submit such employment information as may be prescribed by the Secretary of Labor. •

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Purpose: to ensure the availability of adequate employment services so that employment could be maximized through efficient organization of the labor market. Functions of public employment office: 1. Provide free placement of workers applying for both domestic and overseas employment


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2. Provide adequate vocational guidance and testing services to persons seeking help in choosing or changing an occupation 3. Classify registered applicants in accordance with job titles and codes of Philippine Standard Classification 4. Arrange for the training or retraining of unemployed applicants in occupation or trades where they are suitably qualified and where they have greater prospects of employment. 5. Arrange for inter-area placements of unemployed workers through a nationwide job clearance and information system 6. Furnish the Bureau of Local Employment or POEA with list of registered job applicants Employers with at least 6 employees are obliged to submit a monthly report to the nearest public employment office, on the ff: 1. List of existing job vacancies or openings 2. List of new employees, if there are any 3. Termination, lay-off or retirement 4. Total number of employed workers for the period; and 5. Request for assistance, if needed to fill vacancies or openings

2. To establish and maintain a registration and/or licensing system to regulate private sector participation in the recruitment and placement of workers, locally and overseas, and to secure the best possible terms and conditions of employment for Filipino contract workers and compliance therewith under such rules and regulations as may be issued by the Minister of Labor;

To formulate and develop employment programs designed to benefit disadvantaged groups and communities;

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To establish and maintain a registration and/or work permit system to regulate the employment of aliens;

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To develop a labor market information system in aid of proper manpower and development planning;

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To develop a responsive vocational guidance and testing system in aid of proper human resources allocation; and

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To maintain a central registry of skills, except seamen.

b. (Repealed by E.O. 797) c. The Minister of Labor shall have the power to impose and collect fees based on rates recommended by the Bureau of Employment Services. Such fees shall be deposited in the National Treasury as a special account of the General Fund, for the promotion of the objectives of the Bureau of Employment Services, subject to the provisions of Section 40 of Presidential Decree No. 1177.

Art. 15. Bureau of Employment Services. a. The Bureau of Employment Services shall be primarily responsible for developing and monitoring a comprehensive employment program. It shall have the power and duty: 1. To formulate and develop plans and programs to implement the employment promotion objectives of this Title;

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Art. 16. Private recruitment. Except as provided in Chapter II of this Title, no person or entity other than the public employment offices, shall engage in the recruitment and placement of workers. •

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Purpose: intended to eliminate malpractices in the recruitment and placement of workers and to enable the Government to have a firmer control of the labor market. Gen. Rule: only public employment offices can engage in recruitment and placement of workers, whether for local or overseas employment. Exception: the private sector is given the privilege to engage in recruitment and placement, but limited to the ff:


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' ' a. Private employment agency – refers to any person or entity engaged in the recruitment and placement of workers for a fee which is charged directly or indirectly, from the workers or employers or both. b. Private recruitment entity – refers to any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers. c.

Shipping or manning agency – refers to any person, partnership, or corporation duly licensed by the Secretary of DOLE or his duly authorized representative to recruit and deploy seafarers for maritime employment.

d. Such other persons or entities as may be authorized by the Secretary of DOLE Art. 17.Overseas Employment Development Board.-An Overseas Employment Development Board is hereby created to undertake, in cooperation with relevant entities and agencies, a systematic program for overseas employment of Filipino workers in excess of domestic needs and to protect their rights to fair and equitable employment practices. It shall have the power and duty: To promote the overseas employment of Filipino workers through a comprehensive market promotion and development program; To secure the best possible terms and conditions of employment of Filipino contract workers on a government-togovernment basis and to ensure compliance therewith; To recruit and place workers for overseas employment on a government-to-government arrangement and in such other sectors as policy may dictate; and To act as secretariat for the Board of Trustees of the Welfare and Training Fund for Overseas Workers. COMMENTS: 1. Overseas Employment Development Board Now Abolished

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E.O. No. 797 promulgated on May 1, 1982 abolished the Overseas Employment Development Board (OEDB). The Philippine Overseas Employment Administration (POEA) was created instead. POEA took over functions of OEDB and overseas functions of Bureau of Employment Services.

2. Overseas Employment 8 means employment of a worker outside the Philippines under a valid contract. 8 A worker who holds an overseas employment is commonly called a migrant worker. 8 Migrant worker not only refer to land-based workers but also to seafarers. 8 The definition of overseas employment does not make any distinction regarding the nationality of the employer. 8 It is not essential that the principal employer should be a foreigner or non-Filipino in order that an employee could be considered to be holding an overseas employment. 8 The rationale for this is that Filipinos working overseas share the same risks and burdens, whether their employers are Filipino or non-Filipino. 8 Eastern Shipping Lines vs. POEA 3. The Philippine Pverseas Employment Administration (POEA) 8 POEA is the regulatory body for overseas employment. 8

It has original and exclusive jurisdiction to hear and decide: a. All cases which are administrative in character, involving or arising out of violations of recruitment laws, rules and regulations, including refund of fees collected from workers and violation of the conditions for the issuance of license to recruit landbased overseas workers or seafarers; and b. Disciplinary action cases against migrant workers or seafarers, foreign employers and principals that are administrative in character.

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Decisions of the POEA are appealable to the Secretary of Labor and Employment within 15 days from receipt of decision.

4. Recruitment Violations


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' ' 4.1 Against Land-based Overseas Workers 4.2 Against Seafarers 5. Grounds for Disciplinary Action 5.1 Against Foreign Employers of Land-based Workers 8

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The following are the grounds for disciplinary action against foreign principals or employers of land-based workers: a. Default on its contractual obligations to the migrant worker and/or to its Philippine agent. b. Gross violation of laws, rules and regulations on overseas employment c. Gross negligence leading to serious injury or illness or death of the worker d. Grave misconduct e. Conviction of an offense involving moral turpitude f. Any other case analogous to the foregoing.

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A foreign employer or principal against whom a complaint for disciplinary action has been filed shall be temporarily disqualified from participating in the overseas employment program until he submits to the jurisdiction of the POEA

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Once the foreign employer or principal submits to the jurisdiction of the POEA, particularly upon filing of an answer in the disciplinary action proceedings, he shall again be qualified to participate in the overseas employment program without prejudice to the outcome of the investigation whereby the proper penalty shall be imposed.

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However, if the evidence of guilt is strong and there is reasonable ground to believe that the continued deployment to the principal or employer will result to further violation or exploitation of migrant workers, a principal or employer may be suspended (preventively) from participating in the overseas recruitment program pending investigation of the disciplinary action case.

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employment program unless cleared by the POEA or the penalty imposed is lifted. 5.2 Against Overseas Land-based Workers

If the penalty of suspension or disqualification is imposed through an order, decision or resolution, the foreign employer or principal shall be disqualified from participating in the overseas

The following are the grounds for disciplinary actions against overseas land-based workers: a. Pre-employment Offenses i. Using, providing or submitting false information or documents for purposes of job application or employment ii. Unjustified refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agencies. b. Offenses During Employment i. Commission of a felony or crime punishable by Philippine laws or by the laws of the host country. ii. Unjustified breach of employment contract iii. Embezzlement of company funds or monies and/or properties of a fellow worker for delivery to kin or relatives in the Philippines. iv. Violation of the sacred practices of the host country

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A respondent worker subject of a pending complaint for disciplinary action, or those against whom a warrant of arrest or hold departure order is issued by competent authority shall be disqualified from overseas employment unless temporarily cleared.

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Upon filing of an answer the disciplinary action proceedings, the respondent worker shall be qualified for overseas employment without prejudice to the outcome of the investigation whereby the proper penalty may be imposed.

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If the evidence of guilt is strong and the charge involves a serious offense, the migrant worker may be preventively suspended during the pendency of the disciplinary proceedings.

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If the penalty of suspension or disqualification is imposed through an order, decision or resolution, the worker shall be


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5.3 Against Foreign Principals or Employers of Seafarers The following are the grounds for disciplinary action against foreign principals or employers of seafarers: a. Default on its contractual obligations to the seafarer and/or to its Philippine agent b. Gross violation of laws, rules and regulations on overseas employment c. Grave misconduct d. Conviction of an offense involving moral turpitude e. Gross negligence leading to serious injury or illness or death of the seafarer f. Any other case analogous to the foregoing A foreign employer or principal against whom a complaint for disciplinary action has been filed shall be temporarily disqualified from participating in the maritime employment program until he submits to the jurisdiction of the POEA Once the principal or employer submits to the jurisdiction of the POEA, particularly upon filing of an answer in the disciplinary action proceedings, he shall again be qualified to participate in the maritime employment program without prejudice to the outcome of the investigation whereby the proper penalty shall be imposed. But if the evidence of guilt is strong and there is reasonable ground to believe that the continued deployment to the principal or employer will result to further violation or exploitation of seafarers, the principal or employer may be suspended (preventively) from participating in the overseas recruitment program pending investigation of the disciplinary action case when. If the penalty of suspension or disqualification had been imposed through an order, decision or resolution, the foreign employer or principal shall be disqualified from participating in the maritime employment unless cleared by the POEA or the penalty imposed is lifted. 5.4 Against Seafarers The following are the grounds for disciplinary action against seafarers: a. Pre-employment Offenses

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Submission/furnishing or using false information or documents or any form of misrepresentation for purpose of job application or employment ii. Unjust refusal to join ship after all employment and travel documents have been duly approved b. Offenses During Employment 1. Smuggling or violation of any customs rule and regulations of the Philippines and of foreign ports i. Smuggling any taxable item ii. Possession or use of prohibited drugs, narcotics and other contraband iii. Gun-running or possession of explosives and the like iv. Abetting or conniving with others to commit smuggling v. Misdeclaration of or failing to declare articles leading to their seizure and fine to vessel vi. Misdeclaration of or failing to declare articles leading to their seizure but vessel is not implicated vii. Possession of pornographic materials leading to its seizure and fine to the vessel viii. Any other violation which will not implicate the vessel ix. Any violation which will implicate the vessel 2. Desertion i. Deserting or attempting to desert employment ii. Advising, assisting or persuading another to desert employment 3. Absence without leave i. Abandoning the post or duty without being properly relieved ii. Leaving vessel without permission from responsible officers during working hours iii. Entrusting to others assigned duties without authority of the department head iv. Leaving vessel without permission 4. Sleeping on post while on duty 5. Insubordination i. Any act of disobedience to lawful orders of a superior officer ii. Attempting to assault a superior officer


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Assaulting a superior officer/other persons on business with the ship without the use of deadly weapon iv. Assaulting a superior officer/other persons on business with the ship with the use of deadly weapon v. Behaving with disrespect towards a superior officer vi. Insulting a superior officer by words or deed vii. Inciting another to commit insubordination 6. Drunkenness i. Being drunk while on duty ii. Creating trouble on board due to intoxication iii. Failure to perform assigned jobs due to intoxication 7. Creating trouble outside the vessel’s premises 8. Gambling i. Which results in fighting or any incident as to upset the harmonious relationship on board the vessel ii. Any form of gambling which is not purely recreational 9. Violation of company policies i. Pilferafe or theft of ship’s store or cargo ii. Embezzlement of company funds or monies and/ or properties of a fellow worker entrusted for delivery to kin or relatives in the Philippines iii. Unauthorized disposal of company vessel’s properties for personal gain iv. Any act of dishonesty with intention to defraud the company v. Gross negligence and failure to observe proper storage and cargo handling procedures resulting in delay of vessels and/or damage to cargoes vi. Failure to observe and comply with regulation and non-baggage shipment and acceptance of parcels on board. vii. Failure to observe regulations on expiration of liberty viii. Being left behind by vessel in foreign port without justifiable reason ix. Disorderly conduct and/or disrespect towards passengers

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Immorality as to cast aspersion on the good name of the vessel and company xi. Willfully inflicting harm or injury to others 10. Incompetency and inefficiency 11. Inciting mutiny, malicious destruction of ship’s property at any activity which will hamper the efficient operation of the vessel 12. Converted action to breach approved contracts 13. Any activity which tends to destroy harmonious relationship of the company 14. Grave abuse of authority i. Grave abuse of authority (with use of deadly weapon) resulting in harm or injury to subordinate ii. Grave abuse of authority (without use of deadly weapon) resulting in harm or injury to subordinate iii. Any other case of abuse of authority 15. Other gross misbehaviors prejudicial to good order and discipline 16. Negligence causing damage, loss, spoilage or deterioration of vessel’s stocks and property 17. Connivance with of cuddling of stowaway 18. Willfully making false statement, reports, certification or spurious seafarer’s documents for personal gain or with intent to mislead or defraud the company 19. Any other cases as to cast aspersion on the good name of the company and vessel 20. Violation of safety and environmental rules and regulations 21. Failure to observe the drug and alcohol policy of the company. 6. Enforcement of a Foreign Judgment 8 The POEA has no jurisdiction to hear and decide a suit for enforcement of a judgment rendered by a foreign court. 8 Action of this nature should be brought before the regular courts of justice. 7. 8

Power of POEA to Recruit and Place Workers The POEA has the power to recruit and place workers on a government-to-government arrangement, particularly with regard to the hiring requirements of foreign government instrumentalities.


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It may recruit and place workers for foreign employers in such sectors as the policy may dictate.

Art. 18.Ban on direct-hiring.- No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. COMMENTS: 1. Rationale for the Law 8 Art. 18 is intended to enable the monitoring of overseas contract workers and 8 to ensure that Filipino overseas workers are afforded fair and equitable recruitment and employment practices thereby assuring the best terms and conditions of employment and facilitating the enforcement of employment contracts. 2. Exception to the Ban on Direct-Hiring 8 prohibition against direct hiring of overseas workers does not apply to workers hired by: a. members of the diplomatic corps; b. international organizations; and c. other employers who may be allowed by the Secretary of Labor and Employment to directly hire their workers. 3. Name Hire 8 A name hire is a worker who is able to secure an overseas employment on his own without the assistance or participation of any agency. 4. Registration of Name Hires 8 Name hires should register with the POEA by submitting the following documents: a. Employment contract b. Valid passport c. Employment visa or work permit, or equivalent document d. Certificate of medical fitness e. Certificate of attendance to the required employment

orientation/ briefing. Article 19.Office of Emigrant Affairs. - Pursuant to the national policy to maintain close ties with Filipino migrant communities and promote their welfare as well as establish a data bank in aid of national manpower policy formulation, an Office of Emigrant Affairs is hereby created in the Department of Labor. The Office shall be a unit at the Office of the Secretary and shall initially be manned and operated by such personnel and through such funding as are available within the Department and its attached agencies. Thereafter, its appropriation shall be made part of the regular General Appropriations Decree. The office shall, among others, promote the well-being of emigrants and maintain their close link to the homeland by: serving as a liaison with migrant communities; provision of welfare and cultural services; promote and facilitate re-integration of migrants into the national mainstream; promote economic; political and cultural ties with the communities; and generally to undertake such activities as may be appropriate to enhance such cooperative links. COMMENTS: Superseded by Batas Pambansa Blg. 79 Article 20.National Seamen Board. - A National Seamen Board is hereby created which shall develop and maintain a comprehensive program for Filipino seamen employed overseas. It shall have the power and duty: To provide free placement services for seamen; To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment and secure the best possible terms of employment for contract seamen workers and secure compliance therewith; To maintain a complete registry of all Filipino seamen. The Board shall have original and exclusive jurisdiction over all matters or cases including money claims, involving employer-employee relations, arising out of or by virtue of any law or contracts involving Filipino seamen for overseas employment.


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' ' The decisions of the Board shall be appealable to the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the National Labor Relations Commission shall be final and inappealable. COMMENTS: Repealed by Executive Order No. 797 Article 21.Foreign service role and participation.- To provide ample protection to Filipino workers abroad, the labor attaches, the labor reporting officers duly designated by the Secretary of Labor and the Philippine diplomatic or consular officials concerned shall, even without prior instruction or advice from the home office, exercise the power and duty: To provide all Filipino workers within their jurisdiction assistance on all matters arising out of employment; To insure that Filipino workers are not exploited or discriminated against; To verify and certify as requisite to authentication that the terms and conditions of employment in contracts involving Filipino workers are in accordance with the Labor Code and rules and regulations of the Overseas Employment Development Board and National Seamen Board; To make continuing studies or researches and recommendations on the various aspects of the employment market within their jurisdiction; To gather and analyze information on the employment situation and its probable trends, and to make such information available; and To perform such other duties as may be required of them from time to time. COMMENTS: 1. Reason for the Law 8 Art. 21 is intended to protect the overseas workers by ensuring that they are not exploited or discriminated against. 8 8 The protection of the Filipino migrant worker and the promotion of their welfare, in particular, and the protection of the dignity and fundamental rights and freedoms of Filipino citizens abroad, in general, shall be the highest priority concerns of the Secretary

of Foreign Affairs and the Philippine Foreign Service Posts. 8 2. Country-Team Approach 8 As enunciated under Executive Order No. 74 series of 1993, the country-team approach shall be the mode under which Philippine embassies or their personnel will operate in the protection of the Filipino migrant workers as well as in the promotion of their welfare. 8

All officers, representatives and personnel of the Philippine government posted abroad regardless of their mother agencies shall, on a per country basis, act as one country-team with a mission under the leadership of the ambassador

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The ambassador may recommend to the Secretary of DFA the recall of officers, representatives and personnel of the Philippine government posted abroad for acts inimical to the national interest such as, but not limited to failure provide the necessary services to protect the right of overseas Filipinos.

3. Services Available to Migrant Filipino Workers 8 To protect and promote the welfare of migrant Filipino workers, the following services are being extended by the government: a. Travel Advisory / Information Dissemination - all embassies and consular offices, through POEA, are obliged to issue travel advisories on labor and employment conditions, migration realities and other facts. This is intended to prevent illegal recruitment, fraud and exploitation or abuse of Filipino migrant workers. b. Repatriation of Workers – The Overseas Workers Welfare Administration (OWWA), shall undertake the repatriation of workers in case of war, epidemic, disasters or calamities natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. In case the principal or agency cannot be identified, all costs attendant to repatriations shall be borne by the OWWA. c.

Mandatory Repatriation of Underage Migrant Workers –


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' ' upon discovery or being informed of the presence of migrant workers whose actual ages fall below the minimum age requirement for overseas deployment, the responsible officers in foreign service shall without delay repatriate said workers and advise the DFA through the fastest means of communication available of such discovery and other relevant information. d. Migrant Workers and Other Overseas Filipinos Resource Center– within the premise of and under the administrative jurisdiction of the Philippine embassy where there are large concentrations of Filipino migrant workers, a Migrant Workers and Other Overseas Filipinos Resource Center have been established for the purpose of extending the following services: i. ii. iii.

iv. v. vi. vii. viii.

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Counseling and legal services Welfare assistance including the procurement of medical and hospitalization services. Information, advisory and programs to promote social integration such as post-arrival orientation, settlement and community networking services and activities for social interaction Institute a scheme of registration of undocumented workers to bring them within the purview of the Migrant Workers and Overseas Filipinos Act of 1995 Human resource development, such as training and skills upgrading Gender sensitive programs and activities to assist particular needs of women migrant workers Orientation program for returning workers and other migrants Monitoring of daily situations, circumstances and activities affecting migrant workers and other overseas Filipinos.

The center is open for 24 hours daily including Saturdays, Sundays and holidays, and staffed by foreign service personnel, service attaches or officers who represent other Philippine government agencies abroad and if available, individual volunteers and bona fide non-government organizations from the host countries.

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The Center has a counterpart 24-hour information and assistance at the DFA to ensure a continuous network and coordinative mechanism at the home office.

4. The Legal Assistant for Migrant Workers Affairs 8 The Legal Assistant for Migrant Workers Affairs (which is under the DFA) is primarily responsible for the provision and overall coordination of all legal assistance services to be provided to Filipino migrant workers as well as overseas Filipinos in distress. Among the functions and responsibilities of the Legal Assistant are: a. To issue guidelines, procedure and criteria for the provision of legal assistance services to Filipino migrant workers b. To establish close linkages with the DOLE, POEA, OWWA and other government agencies concerned, as well as non governmental organizations assisting migrant workers, to ensure effective coordination and cooperation in the provision of legal assistance to migrant workers c. To tap the assistance of reputable law firms and the Integrated Bar of the Philippines and other bar associations to complement the government’s efforts to provide legal assistance to migrant workers d. To administer the legal assistance fund for migrant workers and authorize disbursements therefrom in accordance with the purposes for which the fund was set up e. To keep and maintain the shared government information system form migrant workers. 8

The Legal Assistant for Migrant Workers Affairs is authorized to hire private lawyers, domestic or foreign, in order to assist him in the effective discharge of his functions.

5. Role of Government Agencies 8 The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and, as far as practicable, all overseas Filipinos: a. DFA – The Department, through it’s home office or foreign posts, shall take priority action or make representation with


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' ' the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos. b. DOLE – The Department of Labor and Employment shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos including the grant of legal assistance and referral to proper medical centers or hospitals. c.

POEA – The POEA shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and domestic manpower requirements.

d. OWWA – The Welfare Officer or in his absence, the coordinating officer, shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or their principals. In the performance of this function, he shall make representation and may call on the agencies or entities concerned to conference or conciliation meetings for the purpose of settling the complaints or problems brought to his attention. Article 22.Mandatory remittance of foreign exchange earnings.- It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor. COMMENTS: 1. Remittance of Portion of the Worker’s Foreign Exchange Earnings 8 Art. 22 makes it mandatory for all overseas Filipino workers to

remit a portion of their foreign exchange earnings to their families, dependents and beneficiaries. a. 80% of basic salary – for seamen or mariners b. 70% of basic salary – for workers of Filipino contractors and construction companies c. 70% of basic salary – for doctors, engineers, teachers, nurses and other professional workers whose employment contracts provide for free board and lodging facilities d. 50% of basic salary – for other professionals whose employment contracts do not provide for free board and lodging e. 50% of basic salary – for domestics and other service workers f. 50% of basic salary – for other workers not falling under the aforementioned categories. 2. Exceptions to the Remittance Requirement 8 The following workers are not obliged to remit a portion of their foreign exchange earnings: a. Workers whose immediate family members, dependents or beneficiaries are residing with him abroad b. Filipino servicemen working in the U.S. military installations c. Immigrants and Filipino professionals and employees working with the United Nations agencies or specialized bodies. Article 23.Composition of the Boards. - The OEDB shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as Vice-Chairman, and a representative each of the Department of Foreign Affairs, the Department of National Defense, the Central Bank, the Department of Education, Culture and Sports, the National Manpower and Youth Council, the Bureau of Employment Services, a workers’ organization and an employers’ organization and the Executive Director of the OEDB as members. The National Seamen Board shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as Vice-Chairman, the Commandant of the Philippine Coast Guard, and a representative each of the Department of Foreign Affairs, the Department of Education, Culture and Sports, the Central Bank, the Maritime Industry Authority, the Bureau of Employment Services, a national shipping


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' ' association and the Executive Director of the NSB as members. The members of the Boards shall receive allowances to be determined by the Board which shall not be more than P2,000.00 per month. The Boards shall be attached to the Department of Labor for policy and program coordination. They shall each be assisted by a Secretariat headed by an Executive Director who shall be a Filipino citizen with sufficient experience in manpower administration, including overseas employment activities. The Executive Director shall be appointed by the President of the Philippines upon the recommendation of the Secretary of Labor and shall receive an annual salary as fixed by law. The Secretary of Labor shall appoint the other members of the Secretariat. The Auditor General shall appoint his representative to the Boards to audit their respective accounts in accordance with auditing laws and pertinent rules and regulations. COMMENTS: Repealed by Executive Order No. 797 Article 24.Boards to issue rules and collect fees.- The Boards shall issue appropriate rules and regulations to carry out their functions. They shall have the power to impose and collect fees from employers concerned, which shall be deposited in the respective accounts of said Boards and be used by them exclusively to promote their objectives. COMMENTS: Superseded by Executive Order No. 247 CHAPTER 2 REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES Article 25.Private sector participation in the recruitment and placement of workers.- Pursuant to national development objectives and in order to harness and maximize the use of private sector resources and initiative in the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines,

rules and regulations as may be issued by the Secretary of Labor. COMMENTS: 1. Recruitment and Placement of Employees for Local Employment 8 A private recruitment and placement agency for local employment can engage in recruitment and placement only under the following conditions: a. It must have a license to operate as a recruitment and placement agency. b. It must have an authority to engage in recruitment activities in a particular region. 1.1

Procedure for Obtaining a License A person desiring to operate a private employment agency for local employment should: a. File an application for license with the Regional Office of the Department of Labor and Employment having jurisdiction over the place where the applicant seeks to establish his main office b. Pay a filing fee of P500, if single proprietor or P2000, if corporation or partnership 8 The following documents should be attached to the application for license: a. Certified copy of the Certificate of Registration of firm or business name from the DTI, in the case of a single proprietorship, or a certified copy of the Articles of Incorporation duly registered with the SEC, in the case of a partnership or corporation b. A sworn statement of assets and liabilities and/or a duly audited financial statement, as the case may be c. Owner’s certificate/title’of office location or contract of lease of office space for at least 2 years. d. NBI clearance of the applicant, or the partners in the case of partnership or all the officers and members of the Board of Directors, in the case of corporation e. Income tax return for the last 2 years f. A verified undertaking that the applicant shall: i. Not engage in recruitment of children below 15 years of age or place children below 18 years old in hazardous 8


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' ' occupation in accordance with RA No. 7610 as amended by RA No. 7658 and other related laws ii.

Assume full responsibility for all claims and liabilities which may arise in connection with the use of the license.

g. Organizational structure and list of all officers and personnel with their respective bio-data, 2 passportsize ID pictures and a detailed description of their duties and responsibilities h. Specific address and location map of the Office or proposed Office i. List of all authorized representatives, if any, who must be at least high school graduate, with their corresponding bio-date, 2 passport-size ID pictures, high school diploma or other proof of educational attainment duly authenticated, NBI clearance and Special Power of Attorney. 8 Within 15 days from the issuance of the license, the employment agency shall publish once in a newspaper of general circulation the license number, names and pictures of authorized representatives and submit a copy thereof to the DOLE 8 The license (original or a copy thereof) shall be displayed conspicuously at all times in the premises of the private recruitment and placement agency 8 In addiction to the foregoing requirements, an applicant for a license to operate a private recruitment and placement agency for local employment must possess the following qualifications: a. The owner, partners or officers of the corporation must be of good moral character and not otherwise disqualified by law b. Must have an office space with a minimum floor area of 50 square meters. 1.2 Duration of License 8 The license of a private employment agency for local employment is valid for 2 years from date of issuance, subject to submission of proof of publication.

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8 The license is valid all over the Philippines. 1.3 Renewal of License 8 The license of a private employment agency for local employment may be renewed not later than 30 days before its expiration. 8 A private employment agency will not be allowed to renew its license: a. If it has been convicted by the regular courts for violation of the Labor Code, as amended, and its Implementing Rules b. If its license has been previously revoked. 1.4 Conduct of Recruitment 8 Apart from the license, a private employment agency for local employment is obliged to secure an authority to recruit workers within a particular region. 8 The authority to recruit shall be terminus with the license, unless sooner revoked/canceled by the issuing Regional Office or terminated by the Agency. 8 The authority to recruit may be obtained by filing with the Regional Office of the DOLE having jurisdiction over the place where the recruitment activities will be undertaken, an application for authority to recruit with the following supporting documents: a. Letter request by the agency b. Copy of current license c. Certification under oath of licensee on the proposed recruitment activities of the representative d. NBI clearance and bio-data of the representative with 2 ID pictures e. Clearance from previous agency, if applicable f. Previous authority to recruit in case of renewal. 8 The application (new or renewal) may be denied on any of the following grounds: a. Non-compliance with the requirements b. Unresolved illegal recruitment case c. Pendency of case against the applicant or the agency Duly authorized representatives of a private recruitment and placement agency for local employment can engage in recruitment activities if their names are registered with the


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' ' Regional Office of the DOLE. Steps to be followed in the recruitment of workers for local employment are: a. The Agency or its duly authorized representative shall present to the PESO, Provincial and District Office where the recruitment activity is to be undertaken, a copy of existing license, and original copy of authority to recruit issued by the Regional Office concerned. b. The representative shall require the recruit to submit a copy of each of the following: i. Birth certificate from the local civil registrar ii. Medical certificate issued by a government physician or by a reputable private medical practitioner c. The Agency or its authorized representative and the recruit shall enter into a recruitment contract, duly notarized a copy of which shall be submitted to the Regional Office where recruitment activity was undertaken. d. The Agency or its duly authorized representative shall submit a list of the names and addresses of its recruits together with a copy of their birth certificates and medical certificates, to the Regional offices or the appropriate Provincial District Office where recruitment was undertaken for appropriate authentication and validation. Copies of these documents shall be furnished to the Regional Office of destination of the recruit. e. After the recruitment activity, the Regional Office of origin shall issue a certification to the Agency or its duly authorized representative that the recruitment activity has been in accordance with the rules, copy furnished the Marine Policy/Coast Guard/Philippine National Police, as the case may be. f. Provide to the recruit with a stamped envelope form indicating the name, address of recruit and the name, address, telephone number of his/her employer to be sent to the parent. g. Prior to deployment, the Regional Office of origin shall notify the Regional Office of destination of the arrival of the recruits, and the latter shall see

to it that the terms and conditions of the recruitment contract are followed strictly. and Placement of Employees for Overseas

2. Recruitment Employment 2.1 For Land-Based Overseas Employment 8 A private employment agency for land-based overseas employment can engage in recruitment and placement only under the following conditions: a. It should have a license to operate b. It should recruit and place workers only for foreign principals or projects registered and accredited by the POEA. 2.2 For Overseas Maritime Employment 8 A manning agency for overseas maritime employment can engage in recruitment and placement only under the following conditions: a. It should have a license to operate b. It should recruit and place seafarers only for foreign principals registered and accredited by the POEA. c. It should place seafarers only on vessels that are enrolled with the POEA. 2.3 Procedure for Obtaining a License 2.3.1 For Land-Based Overseas Employment 8 A person desiring to operate a private employment agency for land-based overseas employment should a. File an application for license with the POEA b. Pay a filing fee of P10000 8 The following documents should be attached to the application for license a. Certified copy of Articles of Incorporation or Articles of Partnership duly registred with the Securities and Exchange Commission (in case of a corporation or partnership) or Certificate of Registration of firm or business name with the DTI (in case of a single proprietorship) b. Proof of financial capacity consisting of


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' ' For single proprietorship or partnership – verified income tax returns for the past 2 years and a savings account certificate showing a maintaining balance of not less than P500k accompanied by the applicant’s authorization to examine such bank deposit. For newly organized corporation – Savings account certificates showing a maintaining balance of not less than P500k accompanied by an authorization to examine such bank deposits For existing corporation – Verified financial statement, corporate tax returns for the past 2 years and savings account deposit of at least P500k accompanied by an authorization to examine such deposit. c. Proof of marketing capability of: i. A duly executed Special Power of Attorney and/ or a duly concluded Recruitment/ Service Agreement ii. Manpower request or visa certification from new employer or principal for not less than 100 workers iii. Certification from Pre-employment Services Office of the POEA on the existence of the new market. d. Clearance of all members of the Board of Directors, partner or proprietor of the applicant agency from the National Bureau of Investigation and other government agencies as may be required; appropriate clearance in case of persons with criminal cases; provided that where the member or partner concerned is a foreigner, a

clearance from his country of origin shall be required e. A verified undertaking that the applicant shall: i. Select only medically and technically qualified recruits ii. Assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of license iii. Assume joint and solidary liability with the employer for all claims that may arise in connection with the implementation of the contract, including but not limited to, payment of wages, death and disability compensation and repatriation iv. Guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of recruited workers v. Assume full and complete responsibility for all acts of its officials, employees and representatives done in connection with recruitment and placement vi. Negotiate for the best terms and conditions of employment vii. Disclose the full terms and conditions of employment to the applicant workers viii. Deploy at least 100 workers to its new markets within 1 year from the issuance of its license ix. Provide orientation on recruitment procedures, terms and conditions and other relevant information to its workers and provide facilities therefore


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' ' x. Repatriate the deployed workers and his personal belongings when the need arises. f. Verified undertaking by its officers, directors, partners (in case of corporations or partnerships) that they will be jointly and severally liable g. Individual income tax return of the proprietor, partners, stockholders/incorporators, as the case may be for the past 2 years h. Proof of possession by the sole proprietor, partner or chief executive officer, as the case may be, of a bachelor’s degree and 3 years business experience. i. List of all officials and persons involved in the recruitment and placement, together with their appointment, bio-data and 2 copies of their passport-sized pictures as well as their clearances from the NBI and the Anti-Illegal Recruitment Branch of the POEA j. Copy of the Contract of Lease or proof of building ownership, indicating the office address, providing for an office space of at least 100 square meters. k. Proof of publication of notice of the application with the names of the proprietor, partners, incorporators or officers l. Certificate of attendance of owner and/or chief executive officer in a preapplication seminar conducted by the POEA. 2.3.2 For Overseas Maritime Employment 8 A person desiring to operate a manning agency for overseas employment should a. File an application for license with the POEA

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b. Pay a filing fee of P10k The following documents should be attached to the application for license a. Certified copy of Articles of Incorporation or Articles of Partnership duly registered with the SEC (in case of a corporation or partnership) or Certificate of Registration of firm or business name with the DTI (in case of single proprietorship) b. Proof of financial capacity (check book) c. Proof of marketing capability (check book) d. Clearance of all members of the Board of Directors, partner or proprietor of the applicant agency from the NBI, Anti-Illegal Recruitment Branch of the POEA and other government agencies as the need may require; provided that where the member or partner concerned is a foreigner, a clearance from his country of origin shall be required e. Verified undertaking that the applicant shall: i. Provide its seafarers orientation on recruitment policies and procedures, terms and conditions of employment and other relevant information ii. Ensure that any seafarer recruited or deployed by them is qualified and holds the documents necessary for the job concerned iii. Ensure that contracts of employment are in accordance with the standard employment contract and other applicable laws, regulations and collective bargaining agreements


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' ' iv. Ensure that seafarers are informed of their rights and duties under their contracts of employment and the duties of agreement prior to or in the process of engagement v. Ensure that proper arrangements are made for seafarers to examine their contracts of employment and articles of agreement before and after they are signed and for them to receive a copy of the contract of employment vi. Ensure that the vessel and the crew are adequately covered by P&I Club or similar insurance thru the submission of the certificate of insurance coverage vii. Assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of license viii. Assume joint and solidary liability with the employer for all claims that may arise in connection with the implementation of the contract, including but not limited to, payment of wages, death and disability compensation and repatriation ix. Guarantee compliance with the applicable labor, social and maritime legislations of the Philippines, and the applicable regulations of the flag state and international organizations such as the international Maritime Organization (IMO) and the International Labor Organization x. Assume full and complete responsibility for all acts of its officials, employees and

f.

g.

h.

i.

j.

k.

representatives done in connection with recruitment and placement xi. Deploy at least 50 workers to its new markets within 1 year from the issuance of its license which shall also be a condition to the accreditation of old principals xii. Repatriate the deployed workers and his personal belongings when the need arises. Verified undertaking by its officers, directors, partnersthat they will be jointly and severally liable with the company over claims arising from employer-employee relationship Individual income tax return of the proprietor, partners, stockholders/ incorporators, as the case may be for the past 2 years. Proof of possession by the sole proprietor, partner or chief executive officer, as the case may be, of a bachelor’s degree and 3 years business experience. Proof of possession by the sole proprietor, partner or chief executive officer, as the case may be, of a bachelor’s degree and 3 years business experience List of all officials and persons involved in the recruitment and placement, together with their appointment, bio-data and 2 copies of their passport-sized pictures as well as their clearances from the NBI and AntiIllegal Recruitment Branch of the POEA Copy of the Contract of Lease or proof of building ownership, indicating the office address, providing for an office space of at least 100 square meters


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l. Proof of publication of notice of the application with the names of the proprietor, partners, incorporators or officers m. Certificate of attendance of owner and/or chief executive officer in a preapplication seminar conducted by the POEA. 2.3.3 For POCB-Registered Company 8 POCB-registered companies with overseas projects duly accredited by the POCB should: a. File an application for license with the POEA b. Pay a filing fee of P10k and post a surety bond of P50k and escrow deposit of P200k, upon approval of the application 8 The following documents should be attached to the application for license a. Articles of Incorporation b. Certified true copy of its POCB certificate of registration c. Proof of payment of non-refundable fee of P10k POCB-registered companies without POCB-accredited overseas projects shall follow the normal requirements for obtaining a license or renewal thereof. Duration of license: For overseas land-based employment – 4 yrs form the date of issuance. The license is valid only in the place specified therein For overseas maritime employment - 4 yrs form the date of issuance. The license is valid only in the place specified therein For POCB-registered companies - 4 yrs form the date of issuance and is co-terminus with the validity of the POCB registration Provisional license – a permit issued to a new recruitment or manning agency for a limited period of 1 yr, within which period,

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the agency shall comply with its undertaking to deploy 100 landbased workers or 50 seafarers to its new marker. Non-compliance will result in the expiration of the provisional license. Renewal of license may be made on or before its expiration. If made thereafter, 30 days from the expiry thereof, subject to payment of fine of 10k. If the application for the renewal of license has been timely and sufficiently filed, the existing license shall not expire until the application shall have been finally determined by the POEA.

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Conduct of recruitment for land-based overseas workers: 8 Can recruit employees only in behalf of foreign principals or projects that are registered and accredited by the POEA. To do otherwise may result in the suspension or cancellation of license.

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Registration procedure: a. Submit to the Philippine Overseas Labor Office (POLO) the ff documents for verification: 1. SPA issued by the principal or employer to the Philippine agency, or recruitment agreement or service agreement 2. Master employment contract 3. Manpower request indicating the position and salary of the workers to be hired 4. Valid business license, registration certificate or equivalent document b. File with the POEA, an application for registration, with the supporting documents (nos. 1, 2, and 3)

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Registration is valid for a period of 4 yrs, unless sooner revoked or cancelled by the POEA on any of the ff grounds: (FFEP) a. Expiration of the principal’s business license b. Pre-termination of the Agreement, upon written mutual agreement by the parties c. False documentation or misrepresentation in connection with the application for registration, and d. Final judgment in disciplinary action against the foreign principal


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Verification – refers to act performed by a POLOfficer, or any other officer designated by the Sec of DOLE in the Philippine embassy or consulate, in reviewing and verifying the recruitment documents of foreign principals, including the employment contracts of Filipino nationals.

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A foreign principal that acts as direct employer may be registered to more than one Philippine agency, under the ff conditions: 1. A uniform compensation package shall be adopted by the principal and the agency 2. The principal has a verified job order at at least 50 workers; or 3. That the principal must have hired at least 50 workers within a period one yr immediately preceding the registration A principal that is licensed to operate as foreign replacement agency by its government may be registered to a maximum of 2 Philippine agencies, provided that under the preceding conditions. The registration of a foreign placement agency may be transferred to another agency, provided that: a. The compensation package previously approved by the POEA shall be maintained; and b. The transferee shall assume full and complete responsibility for all contractual obligations of the principals to its workers originally recruited and processed by the former agency.

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Accreditation procedure: a. SPA b. Master employment contract c. Manpower request d. Valid business license e. Visa assurance

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The accreditation of a foreign principal, employer or project shall be valid for 4 yrs, unless sooner revoked or cancelled by the POEA on the grounds provided for the cancellation or revocation of a license.

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A manning agency for overseas maritime employment can recruit workers only in behalf of foreign principals that are registered and accredited by the POEA and to vessels that are enrolled with the POEA. To do otherwise may result in the suspension or cancellation of license.

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A principal may be registered to a maximum of 3 manning agencies provided that a minimum wage and compensation package shall be adopted by the principal for all seafarers employed through the agencies taking into consideration the type of the vessel and its operations.

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The registration of a principal and/or enrolment of vessel may be transferred to another agency, provided that: a. The transfer does not involve diminution of wages and benefits of the seafarers hired through the previous agency b. The transferee shall assume full and complete responsibility for all contractual obligations of the principal to the seafarers originally recruited and processed by the former agency.

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Prior to the transfer of registration, the POEA must notify the previous agency and principal of such application for transfer.

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Only duly licensed manning agencies may file an application for accreditation of principals and enrolment of ships. In the absence of a POLO in the principal place of business of the foreign employers or vessel owner/mngr/operator to verify the manning documents, accreditation shall be conducted at the POEA. Authentication of documents of foreign principals shall be undertaken by any of the ff: a. Appropriate official of the Philippine embassy or consulate, or the authorized Philippine foreign representative, in the absence of a Philippine mission; or b. Appropriate official of any designated government ministries or offices of the host country.

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Accreditation procedure: a. File an application with the ff documents: 1. Authenticated manning agreement and SPA 2. List of ship and their particulars including IMO numbers


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3. Crew complement of the principal and their corresponding wage scales 4. valid business license 5. other documents which the administration may find necessary The accreditation shall be valid for a period of 4 yrs from the date of issuance, unless sooner revoked by the POEA on the grounds provided therefor. The expiration of the agency’s license merely suspends the accreditation until the renewal of the license Provisional accreditation – 90 days A principal may be accredited to a maximum of 3 manning agencies, provided that a uniform wage and compensation package shall be adopted by the principal fort all seafarers employed through the agencies taking into consideration the type of vessel and its operations The accreditation of a principal and/or the enrolment of a vessel may be transferred to another agency, provided: a. Such transfer shall not involve diminution of benefits and wages of the seafarers hired through the previous agency b. The transferee agency shall assume full and complete responsibility to all contractual obligations of the principal of such application for such transfer In case of change of vessel or management involving a change in the principal, the agency of the new principal automatically assumes full and complete responsibility over all seafarers originally recruited and deployed by the previous agent, if the seafarers opt to sign an employment contract with the new principal. Otherwise, the agency shall retrain full responsibility over the contractual obligation of its principal. The accreditation may be renewed upon request by the agency, provided that the documents required for initial accreditation are still valid. Licensed employment or manning agencies may advertise for actual job vacancies without prior approval from the POEA, if covered by manpower requests by registered/accredited foreign principals and projects. Licensed employment or manning agencies may advertise for manpower pooling without prior approval from POEA.

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Foreign principals/employers who wish to advertise overseas job vacancies may do so only through a POEA-licensed agency or through the POEA. Documentation of workers: For new hires (land-based) 8 The ff documents shall be submitted to the POEA for documentation of new hires: 1. Request for processing, indicating the names, positions and salaries of workers using the prescribed form of the POEA. 2. Standard employment contract 3. Other documents that the POEA may find necessary An employment or manning agency shall deploy its hired workers/seafarers within 60 days from the date of issuance of the overseas employment certificate. Failure on the part of the recruitment or manning agency to deploy a worker within the prescribed period may result in imposition of sanctions ranging from reprimand to cancellation of license. If the deployment of the worker/ seafarer does not materialize within 30 days from the lapse of the period to deploy, the agency shall report the non-deployment and the reasons therefor and apply to the POEA for the cancellation of the worker’s processed documents. If the deployment of the worker/seafarer does not materialize due to his fault, the agency may charge the worker for actual expenses incurred in connection with his recruitment, duly supported by official receipts.

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The parties to an overseas employment contract may stipulate terms and conditions that are more beneficial to the worker than the minimum.

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It is a basic right of all workingmen to seek greater benefits not only for themselves but for their families as well.

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GR: the repatriation of land-based workers or seafarers and the transport of their personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker. Exception: if due to the fault of the worker

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The joint and several liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due to him. Exceptions: a. When the workers were the ones who persuaded the recruitment agency to send back abroad despite their knowledge that the foreign employer might not be able to pay their wages because of financial difficulties and they agreed not to hold the agency responsible therefor. b. When the workers were recruited by the supposed recruitment agency without the latter’s consent.

Art. 27. Citizenship requirement. Only Filipino citizens or corporations, partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas. •

Persons disqualified from engaging in overseas recruitment: 1. Travel and sales agencies of airline companies 2. Officers or members of the board or any corporation or members of a partnership engaged in the business of a travel agency 3. Corporations and partnerships, when any of its officers, board members or partners is also an officer, board member, or partner of a corporation engage in the business of a travel agency. 4. Persons, partnerships or corporations which have derogatory records 5. Any official or employee of the DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of RA 8042 and/or their relatives within the th 4 civil degree of consanguinity or affinity; and 6. Persons, partners, officer, and directors of corporations whose license has been previously revoked or cancelled for violation of recruitment laws.

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Foreigners cannot engage in recruitment and placement The privilege to engage in recruitment and placement or workers, whether for local or overseas employment, is available only to Filipino citizens or to corporations, partnerships or entities with at least 75% of the authorized and voting capital stock owned and controlled by Filipino citizens.

Art. 28. Capitalization. All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization as determined by the Secretary of Labor. •

Recruitment agency for local employment: 8 200k in the case of single proprietorship 8 500k in the case of a corporation

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Recruitment or manning agency for overseas employment: 8 2M for single proprietorship 8 5M for corporations

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 be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor. •

Limitations on the use of license or authority: 1. A license or authority cannot be used directly or indirectly by any person other than the one in whose favor it was issued 2. It cannot be issued in any place other than that specified in the license or authority 3. It cannot be transferred, conveyed or assigned to any person or authority

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Effect of death of a sole proprietor 8 The license may be extended upon request of the heirs only for the purpose of winding up its business, in order


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' ' •

to prevent disruption of operations and so as not to prejudice the interest of legitimate heirs A private recruitment and placement agency for local employment desiring to transfer ownership of the agency should surrender its license to the issuing regional office of the DOLE

3. Sworn or verified statement by the designating or appointing person or company assuming full responsibility for all acts of the agent or representative done in connection with the recruitment and placement of workers or seafarers. •

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Transfer or change of ownership of a single proprietorship licensed to engage in overseas employment shall automatically revoke the license.

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A change in the relationship of the partners in a partnership duly licensed to engage in overseas employment which materially interrupts the course of the business or results in the actual dissolution of the partnership, shall automatically cause the revocation of the license.

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Recruitment or manning agencies for overseas employment organized as single proprietorship may convert into a corporation for the purpose or upgrading their capabilities to respond adequately to developments in the international labor market and to enable them to better comply with their responsibilities.

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The approval of the merger, consolidation or upgrading shall automatically revoke or cancel the license of the single partnership.

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Duly authorized representatives of a private recruitment and placement agency for local employment can engage in recruitment activities if their names are registered with the regional office of the DOLE.

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Every appointment of agents of a licensed recruitment or manning agency for overseas employment shall be subject to the approval or authority by the POEA. Said approval may be obtained by submitting the ff documents: 1. Proposed appointment or SPA 2. Clearance of the proposed representative from the NBI and the Anti-illegal recruitment branch of the POEA; and

Change of officers and personnel for overseas employment shall be registered with the POEA 30 calendar days from the date of such change.

Art. 30. Registration fees. The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. • •

Recruitment agency for local employment – 5k Recruitment or manning agency for overseas employment – 50k

Art. 31. Bonds. All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as may be appropriate. •

Purposes: 1. To secure all valid and legal claims arising from a violation of the conditions of the grant and use of the license, accreditation and contracts of employment. 2. Intended to guarantee compliance with the LC and its IRRs relative to the recruitment and placement

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Amount of bond for recruitment agency for local employment: (prior to the approval of license) a. Cash bond – 25k b. Surety bond – 100k The bonds and escrow shall answer for all the valid and legal claims arising from violations of the conditions for the grant and use of license and/or accreditation and contracts of employment.

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The bonds and escrow shall likewise guarantee compliance with the provisions of Philippine laws and all liabilities that the POEA may impose. Appeal bond: a. Art. 223 8 a requirement for the perfection of an appeal. 8 Intended to insure the payment of monetary award in the event that the judgment is affirmed on appeal b. Art. 31 8 not limited to monetary awards by employees 8 Against which the POEA can go for violations by the recruiter of the conditions for its license, the provisions of the LC, the rules of the POEA as well as the settlement of other liabilities the recruiter may incur. 8 Intended to answer only for employment-related claims and for violations of labor laws. Therefore, it cannot be garnished to satisfy a claim against a recruitment agency that is not employment-related or does not pertain to violation of labor laws. A recruiter agency who appeals a judgment of the POEA or Labor Arbiter to the NLRC is still obliged to post a bond in an amount equivalent to the monetary award as required by Article 223 of the LC, notwithstanding the fact that it has already posted a bond under Art. 31 of the LC.

Art. 32. Fees to be paid by workers. Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees. •

Placement fees st a. For local employment – not exceed 20% of the worker’s 1 month’s basic salary. b. For overseas land-based employment – an amount equivalent to 1 month salary, except where the prevailing

system in the country where the worker is to be deployed, either by law, practice or policy, does not allow the charging or collection of placement and recruitment fee. •

Service fees a. For local employment – charged against the employer which shall not exceed 20% of the annual salary of the worker. b. For overseas employment – charged against their principals to cover services rendered in the recruitment, documentation and placement of workers or seafarers. The principal shall be responsible for the payment of the ff: 1. Visa fee 2. Airfare 3. POEA processing fee 4. OWWA membership fee

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The power of the secretary of DOLE to order the suspension of license carries with it the power to refund such fees as may have been illegally collected.

Art. 33. Reports on employment status. Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data. •

The authority given to the Sec of DOLE under this article can be exercised only when public interest requires. This can be justified as an exercise of police power.

Art. 34. Prohibited practices. It shall be unlawful for any individual, entity, licensee, or holder of authority: a. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; b. To furnish or publish any false notice or information or document in relation to recruitment or employment;


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' ' c. d.

e. f. g. h.

i.

j. k.

l. m. n.

To give any false notice, testimony, information, document, or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through 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 Republic of the Philippines; To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. Art. 34 is confined to persons engaged in recruitment and placement of workers for local employment, the penalty of which is provided in art. 39 of the LC. Acts enumerated constitute illegal recruitment, regardless of whether or not the offender is a licensee of holder of authority. With regard to persons with regard to persons engaged in recruitment of workers for overseas employment, the applicable law is Sec. 6 of the Migrant Workers and Overseas Filipinos Act of 1995.

o. The acts enumerated in Sec. 6 of the MWOFA of 1995 constitute illegal recruitment regardless of w/n the offender is a licensee of holder of authority. p. A mere attempt to induce a worker to quit his job through offering him another one constitutes a violation of Art. 34. q. If the purpose of the inducement is to liberate the worker from oppressive terms and conditions of employment, he will not incur liability. r. The pari de licto doctrine shall not apply in cases of overcharging allowable fees s. Alteration of employment contracts without the approval of the Secretary of DOLE or the POEA is prohibited under Article 43 (i) of the LC. The limitation is intended to insure that the employee is not placed in a disadvantageous position Art. 35. Suspension and/or cancellation of license or authority. The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions. •

Grounds for suspension or cancellation of license: 1. Recruitment agency for local employment: a. Violation of the conditions of license b. Engaging in acts of misrepresentation for the purpose of securing a license or the renewal thereof. c. Continuous operation despite due notice that the license has expired d. Incurring two suspensions based on final and executory orders e. Engaging in labor-only contracting as defined in Art. 106 of the LC; etc. 2. Recruitment agency for land-based employment: a. Deploying under-aged workers


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overseas


' ' b. Deploying workers to principals not accredited by the POEA c. Falsifying or altering travel documents of applicant worker in relation to overseas recruitment activities d. Withholding of worker’s salaries or remittances without justifiable reasons or shortchanging of remittances e. Failure to comply with the undertaking to provide Pre-Departure Orientation Seminar to workers; etc 3. Manning agency for overseas seafarers: a. Transfer or change of ownership of a single proprietorship licensed to engage in overseas employment b. Falsifying or altering travel documents of applicant seafarer in relation to recruitment activities c. Appointing or designating agents, representatives or employees without prior approval from the POEA d. Failure to deploy a seafarer within the prescribed period without valid reason e. Disregard of orders, notices, and other processes issued by the POEA •

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Penalties imposed, as the case may be: 1. Reprimand 2. Suspension of license (2 mos to 6 mos) 3. Suspension of license (6mos and 1 day to 1 yr) 4. Cancellation of license The penalty shall carry the accessory penalty of refund of the fee charged or collected from the worker, in case of nondeployment. In addition or in lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at P10k for every month of suspension A manning agency found guilty of committing an offense regardless of the number or nature of charges, against 5 or

more complainants in a single case shall be imposed the penalty of cancellation of license. Chapter III MISCELLANEOUS PROVISIONS Art. 36. Regulatory power. The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. • •

Purpose: to insure the protection of job-seekers from unscrupulous recruiters. Implicit in this power is the authority to award appropriate relief to victims of offenses committed by recruitment agencies, especially the refund or reimbursement of such fees as may have been fraudulently or illegally collected, or such goods or services imposed and accepted in excess of what is licitly prescribed.

Art. 37. Visitorial Power. The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title. •

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Usually conducted: a. Before issuance of license b. In case of transfer of office c. Upon receipt of complaint for violation of existing RRs Violation: appropriate sanction or denial of application for renewal of license Inspectors must present to the agency their Authority to Inspect stating in detail the purpose and subject of inspection.

Art. 38. Illegal recruitment.


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' ' a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

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It is enough that the recruiter gives the impression of his ability to enlist workers for job placement abroad.

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There is illegal recruitment: a. When a person who is not a holder of license or authority engages in recruitment activities b. When a person, w/n a holder of a license or authority, commits any of the prohibited practices enumerated in Article 34 of the LC or those enumerated in Section 6 of the Migrant Workers Act of 1995, in case of overseas employment.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

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Qualified illegal recruitment: a. If its committed by a syndicate, i.e., carried out by a group of 3 or more persons conspiring or confederating with one another in carrying out any illegal or unlawful recruitment activity; or b. If it is committed by a large scale, i.e., if committed against 3 or more persons, individually or as a group.

c. The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so. (Declared unconstitutional in Salazar v. Achacoso)

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Illegal recruitment, if committed by a syndicate or in a large scale, is considered an offense involving economic sabotage, hence, a higher penalty is imposed.

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A person who violates Art. 13 (b) and Art. 34 of the LC can be charged and convicted separately of illegal recruitment and estafa because the former is malum probihitum where criminal intent is not necessary for conviction and the latter is malum in se where criminal intent of the accused is necessary for conviction.

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Prescription of action: a. Art. 290 of the LC (local employment)- 3 yrs b. Migrant – 5 yrs, except those involving economic sabotage which prescribe in 20 yrs

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The SC, in declaring Art. 38 (c) unconstitutional, held that under Section 2, Art III of the 1987 Constitution, only judges, and no other, can issue warrants of arrest and search. Not being a judge, the Secretary of DOLE cannot issue search warrants or warrants of arrest.

b. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

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Recruitment activities – refer to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers. It includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not.


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' ' persons, the officers having control, management or direction of the business shall be liable. Title II EMPLOYMENT OF NON-RESIDENT ALIENS

Art. 39. Penalties. a. The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; b. Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court; c. Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court; d. If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; e. In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. •

The persons criminally liable for illegal recruitment are the principals, accomplices and accessories. In case of juridical

Art. 40. Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. •

Purpose: intended to regulate the employment on non-residents so as not to displace Filipinos from jobs that they are capable of doing.

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All non-resident nationals who intend to engage in gainful employment in the Philippines are required to obtain an Alien Employment Permit.

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Persons exempted from securing said permit:

1. Members of the diplomatic services and foreign government officials accredited by the Philippine government; 2. Officers and staff of international organizations of which the Philippine government is cooperating member, and their legitimate spouses desiring to work in the Philippines; 3. Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation


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' ' 4. All foreign nationals granted exemption by special laws and all other laws that may be promulgated by the Congress; 5. Owners and representatives of foreign principals, whose companies are accredited by the Philippine Overseas Employment Administration (POEA), who come to the Philippines for a limited period solely for the purpose of interviewing Filipino applicants for employment abroad; 6. Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that exemption is on a reciprocal basis. 7. Resident foreign nationals.

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A foreign national who intends to engage in gainful employment in the Philippines should file an application for Alien Employment Permit (AEP) with the Regional Office of the DOLE having jurisdiction over the intended place of work. An application for renewal of such permit shall be filed on or before its expiration. Application of foreign nationals with expired AEP shall be considered as new application. The AEP shall be valid for a period of 1 yr, unless the employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed 5 yrs. Grounds for suspension of AEP: 1. The continued stay of the foreign national may result in damage to the interest of the industry or the country. 2. The employment of the foreign national is suspended by the employer or by order of the court. Petition for suspension of AEP shall be resolved within 30 calendar days from receipt thereof. Cancellation of AEP: 1. Non-compliance with any of the requirements of conditions of the AEP

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2. Misrepresentation of the facts in the application 3. Submission of falsified or tampered documents 4. Meritorious objection or information against the employment of the foreign national as determined by the regional director 5. Foreign national has a derogatory record; and 6. Employer terminated the employment of the foreign national. Petition for cancellation of AEP shall be resolved within 30 calendar days from receipt thereof. Remedies in case of suspension, cancellation or revocation of AEP: a. The aggrieved party may file a motion for recon and/or appeal within 7 calendar days after receipt of the suspension/cancellation/revocation order, with the regional director who shall resolve the same within 10 calendar days from receipt thereof. If the motion for recon is filed after the period of 7 calendar days but not later than 10 calendar days from receipt of denial, it shall be treated as an appeal b. Such order may also be appealed to the Sec of DOLE, in which case, it should be filed within 10 calendar days from its receipt. Decision rendered shall be final and unappealable.

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Foreign nationals found working without, or with an expired AEP may be fined 10k for every year of fraction thereof

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Permanent resident aliens who are employed in the Philippines are obliged to secure an Alien Employment Registration Certificate (AERC). The AERC may be obtained by filing with the regional office of DOLE an application with the necessary supporting documents.

Art. 41. Prohibition against transfer of employment. a. After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without


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approval

of

the

Secretary

of

Labor.

b. Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code. In addition, the alien worker shall be subject to deportation after service of his sentence. •

Sanctions for Violation: a. Cancellation of AEP b. Fine of not less than 1k nor more than 10k, or imprisonment of not less than 3 mos nor more than 3 yrs or both such fine and imprisonment at the discretion of the court, as provided in Art. 288 of the LC.

Art. 42. Submission of list. Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit. •

The list will enable the secretary of DOLE to determine if the foreign nationals listed are still entitled to an AEP.

ART 43-56 – SUPERSEDED BY R.A NO. 7796 OTHERWISE KNOWN AS THE TECHNICAL EDUCATION AND SKILLS DEVELOPMENT ACT OF 1994 TECHNICAL EDUCATION AND SKILLS DEVELOPMENT • TESDA Act aims to promote and strengthen the quality of ethical education and skills development programs in order to attain international competitiveness and meet the changing demands for quality middle-level manpower. • In pursuance of the declared policy of the state to provide relevant, accessible, high quality and efficient technical education and skills development in order to build up high

quality Filipino middle-level manpower responsive to the Philippine development goals and priorities. TECHNICAL EDUCATION – refers to the education process designed at post-secondary and lower tertiary level officially recognized as nondegree programs aimed at preparing technicians, para-professionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training. SKILLS DEVELOPMENT – is the process through which learners and workers are systematically provided with learning opportunities to acquire or upgrade, or both, their ability, knowledge and behavior pattern required as qualifications for a job or range of jobs in a given occupational area. COMPOSITION OF TESDA BOARD 1. Secretary of Labor and Employment – Chairperson 2. Secretary of Education – Co-chairperson 3. Secretary of trade and Industry – Co- Chairperson 4. Secretary of Agriculture – Member 5. Secretary of Interior and Local Government - Member 6. Director-General of the TESDA secretariat – Member 7. 2 representatives, from the employer/industry organization, one of whom shall be a woman 8. 3 representatives from the labor sector, one of whom shall be a woman TESDA ACT OF 1994 ( R.A NO. 7796) DECLARATION OF POLICY • To provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities. • The state shall encourage active participation of various concerned sectors, particularly private enterprises being direct participants in and immediate beneficiaries of a trained and skilled workforce, in providing technical education and skills development opportunities. GOALS AND OBJECTIVES


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' ' To promote and strengthen the quality of technical education and skills development programs to attain international competitiveness. • Focus technical education and skills development on meeting the changing demands for quality middle-level manpower. • Encourage critical and creative thinking by disseminating the scientific and technical knowledge base of middle-level manpower development programs • Recognize and encourage the complimentary roles of public and private institutions in technical education and skills development and training systems. • Inculcate desirable values through the development of moral character with emphasis on the work ethic, self-discipline, selfreliance and nationalism. SKILL – The acquired and practiced ability to carry out a task or job SKILLS DEVELOPMENT – the process through which learners and workers are systematically provided with learning opportunities to acquire or upgrade, or both, their ability, knowledge and behavior pattern required as qualifications for a job or range of jobs in a given occupational area. TECHNICAL EDUCATION – the education process designed at post-secondary and lower tertiary levels, officially recognized as non-degree programs aimed at preparing technicians, paraprofessionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical studies, and related job skills training. TRADE – any group of interrelated jobs or any occupation which is traditionally or officially recognized as craft or artisan in nature requiring specific qualifications that can be acquired through work and/or training. MIDDLE-LEVEL MANPOWER – refers to those: 1. Who have acquired practical skills and knowledge through formal or non-formal education and training equivalent to at least a secondary education and training equivalent to at least a secondary education but preferably a postsecondary education with a corresponding degree or diploma 2. Skilled workers who have become highly competent in their trade or craft as attested by industry PRIVATE ENTERPRISES – an economic system under which property of all kinds can be privately owned and in which individuals, •

alone or in association with another, can embark on a business activity. This includes industrial, agricultural, or agro-industrial establishments engaged in the production, manufacturing, processing, repacking or assembly of goods including serviceoriented enterprises. TRAINERS – persons who direct the practice of skills towards immediate improvement in some task TRAINORS/TRAINERS – persons who provide training to trainers aimed at developing the latter’s behavior patterns required for specific jobs, tasks, occupations or group of related occupations. TRAINEES – Persons who are participants in a vocational, administrative or technical training program for the purpose of acquiring and developing job-related skills APPRENTICESHIP – training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer on an approved apprenticeable occupation. APPRENTICE – a person undergoing training for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement. APPRENTICESHIP AGREEMENT – a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts TITLE II TRAINING AND EMPLOYMENT OF SPECIAL WORKERS APPRENTICES ART. 57 STATEMENT OF OBJECTIVES 1. To help meet the demand of the economy for trained manpower 2. To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies 3. To establish apprenticeship standards for the protection of apprentices SALIENT FEATURES OF THE APPRENTICESHIP LAW


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' ' 1. It liberalizes the application of training principles to facilitate the use of the training method for development of manpower in many other occupations aside from the skilled trades. 2. It lowers the minimum qualifying age for apprenticeship to 14 instead of 16 as prescribed in the old law 3. It eliminates the unrealistic requirement that a prospective apprentice should be a high school graduate 4. Unlike the old law which required that training should be undertaken in the premises of the employer alone, the Labor Code gives an employer the option to conduct the training in its premises, in a Department of Labor and Employment training center or other public training institution, or a combination of both 5. Associations and civic groups are now allowed to organize or sponsor apprenticeship programs 6. The limitation imposed by P.D. No. 173 on the number of apprentices whose compulsory employment and training may be required during the emergency situations has been eliminated. ART. 58 DEFINITION OF TERMS “Apprenticeship” means practical training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer on an approved apprenticeable occupation. “Apprentice” is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this chapter. An “apprenticaeble occupation” means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction “Apprenticeship agreement” is an employment contract wherein the employer binds himself to train the apprentice who in turn accepts the terms of the training ART. 59 – QUALIFICATIONS OF APPRENTICE a) Be at least (14) years of age. b) Possess vocational aptitude and capacity for appropriate tests

c) Possess the ability to comprehend and follow oral and written instructions Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations EDUCATIONAL QUALIFICATION • It is no longer required that the applicant for apprenticeship should be a high schoolgraduate. • All that it needed is possession of the ability to comprehend and follow oral and written instructions. • Some occupations may require a certain degree of education • Trade and industry associations may recommend to the Secretary of Labor and Employment the appropriate educational qualification. • If approved, such qualifications shall become the educational requirement for such particular occupation. • The employer can waive the said educational qualification in favor of an applicant who demonstrates exceptional ability. In such a situation, a certification explaining briefly the ground for such waiver signed by the person in charge of the program shall be attached to the apprenticeship agreement. PHYSICAL FITNESS • the applicant for apprenticeship should be physically fit for the occupation in which he desires to be trained. • Physical defect should not be a hindrance except when it impedes the effective performance of the apprentice. PHYSICAL EXAMINATION • Physical examination of applicants for apprenticeship is free of charge at the Department of Health or any government hospital. • All entities with an apprenticeship program may elect to assume the responsibility for physical examination provided its facilities are adequate and all expenses are borne exclusively by it. PREVIOUS TRAINING • A prospective apprentice who has completed or attended a vocational course in a duly recognized trade or vocational school or training center who has had previous experience in the trade or occupation in which he decides to apprenticed shall be given due credit.


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Both practical and theoretical knowledge shall be evaluated and the credit shall appear in the apprenticeship agreement. Such credit shall be expressed in terms of hours.

ART. 60 EMPLOYMENT OF APPRENTICES Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Minister of Labor and Employment. REQUISITES: a) The employer should be engaged in a business that is considered a highly technical industry. b) The job to which the apprentice will work on should be classified as an apprenticeable occupation. Article 66. Appeal to the Secretary of Labor -the decision of the authorized agency of the Dept. of Labor may be appealed to the Secretary of Labor within 5days from receipt of decision -The decision of the Secretary of Labor is final and executory -However, the aggrieved party can still elevate the matter to the appropriate court through a special civil action for certiorari ARTICLE 67. Exhaustion of Administrative Rules— -controversies and disputes arising out of apprenticeship agreement should be first threshed out with the plant apprenticeship committee before filing an action ARTICLE 68. Aptitude Testing Applicants— -to qualify for apprenticeship, one should possess vocational aptitude tests ARTICLE 69. Responsibility for Theoretical Instruction— -ratio: 100hours of instructions for every 2,000hours of practical or OJT ARTICLE 70. Organization of Apprenticeship Program; Exemptions -General Rule: the organization of apprenticeship program shall be primarily a voluntary undertaking of employers -Exceptions: (a) when there is a critical shortage of trained manpower in certain trades, occupations, jobs, or employment levels and national

security or particular requirements of economic development so demands (b) where foreign technicians are utilized by private companies in apprenticeship trades ARTICLE 71. Deductibility of Training Costs— -1/2 deduction for taxable income of the value of labor training expenses -Purpose: to encourage the organization of apprenticeship programs and induce an employer to pay the minimum wage -Requisites of availment: (a) should be recognized by the Department of Labor and Employment (b) apprentices should be paid minimum wage (c) the deduction should not exceed 10% of direct labor wage (d) should be operational during the taxable year as certified by the Apprenticeship Division. ARTICLE 72. Apprenticeship Without compensation— (a) those who undergo apprenticeship for the purposes of complying with academic requirements for graduation (b) those who undergo apprenticeship for the purposes of complying with government requirements for board examinations ARTICLE 73. Learners Defined— -those who are hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on-the-job -must not exceed 3 months -employer must have Leadership Program duly approved by TESDA -need not be supplemented by theoretical instructions ARTICLE 74. When Learners May Be hired— -Conditions: (a) the job is semi-skilled and non-apprenticeable and can be learned in a practical way within a period of not more than 3 months (b) there are no available experienced workers (c) the employment of learners is necessary to prevent curtailment of employment opportunities (d) their employment does not create unfair competition in terms of labor costs or impair working standards


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' ' -Age Requirement: - below 15 cannot be employed as a learner - below 18 can be employed only in non-hazardous, safe occupations ARTICLE 75. Leadership Agreement— (a) names and addresses of the learners (b) duration of the learnership period which shall not exceed 3months (c) wage salary rate is mot less than 75% of the minimum wage (d) to employ learners as regular employees if they so desire upon completion of learnership -if he training is terminated after the first 2 months, before the stipulated period through no fault of the learner, the learner shall be deemed a regular employee -Learnership agreement- contract between the learner and the employee -must be in writing -signed by the learner -signed by the employee or his duly authorized representative -if a learner is a minor, should bear the conformity of his parent or guardian ARTICLE 76. Learners in Piecework— -Learners in piecework or incentive-rate jobs shall be paid in full for the work done, and not 75% of the applicable minimum wage ARTICLE 77. Penalty Clause— -criminal liability punishable under ART. 288 of the Labor Code Title I: Working Conditions and Rest periods Chapter I: Hours of Work Art. 82. Coverage. The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another,

and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. As used herein, "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 officers or members of the managerial staff. "Field personnel" shall refer to non-agricultural 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. • Applies to ALL EMPLOYEES, whether for profit or not, except: o Government Employees o Managerial Employees o Officer and members of the managerial staff o Field Personnel o Members of the family of the employer who are dependent on him for support o Domestic Helpers o Persons in the personal service of another o Workers who are paid by results 1. Government Employees a. Refer to those employed by the National Government or any of its political subdivisions; including those employed in GOCCs with SPECIAL CHARTERS, not under the Corporation Law b. They are not covered by the Labor Code, but by the Civil Service Law or the Administrative Code, among other special laws 2. Managerial Employees – must meet ALL THE FOLLOWING conditions to be considered: a. Primary duty consists in the management of the establishment or in the management of a department or subdivision thereof; b. He directs the work of TWO OR MORE employees therein; c. Has authority to hire or fire other employees of lower rank, or his recommendations as to hiring, firing, promoting and other personnel movements are given weight. 3. Officers or members of the managerial Staff a. Must perform the following duties and responsibilities to be considered such:


'


' ' i.

Primary duty consist in the performance of work directly related to management policies of their employer; ii. Exercise discretion and independent judgment; iii. Assisting a proprietor or a managerial employee whose primary duty consists in the management of the establishment or in the management of a department or subdivision thereof; or they execute UNDER GENERAL SUPERVISION, work along specialized or technical lines requiring special training, experience or knowledge; or they execute under general supervision special assignments and tasks; and iv. Do not devote more than 20% of their hours worked in a workweek to activities directly and closely related to the performance of the work described above. (in other words, they don’t perform work reserved for managerial employees more than 20% of the time) b. Supervisory employees are so exempted, if they perform functions that qualify them as members or officers of a managerial staff, like Construction/Project engineer and Chief Patron of a vessel. 4. Field Personnel a. Are exempted from coverage, if: i. They regularly perform their duties away from the principal place of business of the employer; ii. Their actual hours of work cannot be determined with reasonable certainty 1. How to determine: Whether or not employee’s time and performance is constantly supervised by the employer. Exemption does not apply if constantly so supervised. b. Fishermen ARE NOT field personnel – they are under effective control and supervision of the employer through the vessel’s patron or master. 5. Members of the family of the employer who are dependent on him for support a. Refer to: Husband and wife, parents and children, other ascendants and descendants, brothers and sisters, whether full or half-blood.

6. Domestic Helpers a. Any person whether male or female, who renders service in and about the employer’s home on an activity which are usually necessary or desirable for the maintenance and enjoyment of the employer’s family. b. Family drivers, cooks, gardeners or nursemaid. 7. Persons in the personal service of another a. Are those who minister to the personal comfort, convenience or safety of the employer as well as the members of the employer’s household. b. Personal bodyguards, private nurses 8. Workers paid by results a. Those who are paid on piecework, takay, pakiao or task basis. Art. 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day. Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, "health personnel" shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. 1. Normal Hours of Work a. Sets the maximum hours for work under NORMAL CONDITIONS. Employer is free to adopt less than this prescribed maximum. b. 8 hours is maximum, which may be staggered so long as it falls within a 24-hour period. Work in excess of this maximum becomes OVERTIME WORK. 2. When May An Employee be Compelled to Render Overtime Work? a. Only under these following emergency situations:


'


' ' i. ii.

iii.

iv. v.

When the country is at war or when any other local or national emergency has been declared; When overtime work is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other disaster or some other cause of similar nature; When there is urgent work to be performed on machines, installations or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; When overtime work is necessary to prevent loss or damage to perishable goods; and Where the completion or continuation of the work started th before the 8 hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

3. Compressed Workweek a. Resorted to by the employer to prevent serious losses due to cause beyond his control. To be an exception to the 8-hour-aday requirement, the workers must AGREE to the temporary change of work schedule and they do not suffer any loss of overtime pay, fringe benefits or their weekly or monthly takehome pay. b. An alternative arrangement where the regular workweek is reduced to less than 6 days but the total number of normal hours per week remains at 48 hours. c. Conditions of a VALID CWW Scheme: i. It is expressly and voluntarily supported by majority of the employees affected; ii. If work is hazardous, a certification is needed from an accredited safety organization or the firm’s safety committee that work beyond 8 hours is within the limits or levels of exposure set by DOLE’s occupational safety and health standards iii. The DOLE is duly notified.

(a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. 1. Principles in Determining Hours Worked a. All Hours which the employee is required to give his employer hours worked, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. i. Engaged to WAIT – the time spent by an employee waiting is considered HOURS WORKED if he was engaged to wait or waiting is an integral part of his work. Example: Company driver playing chess while waiting for his boss. ii. Waiting to be ENGAGED – Not considered working since his is not yet controlled by the employer because employee is yet to be engaged. Employee can still use time waiting for his personal purposes. iii. On CALL TIME – An employee who is required to remain on call in the employer’s premises or so close thereto that he cannot use the time for his own purpose is considered as working while on call. An employee NOT REQUIRED TO LEAVE WORD ON WHERE HE MAY BE REACHED is not working while on call. iv. ASSEMBLY TIME – A requirement by some employers for their employees to assemble at an area prior to the start of their work. Upon consideration of this as HOURS WORKED, it shall depend on whether or not the worker is subject to the control of the employer during the entire period. IF workers are NOT SUBJECT TO EMPLOYER’S CONTROL during the period, said assembly period is NOT CONSIDERED HOURS WORKED. v. TRAVEL TIME – General Rule: NOT CONSIDERED HOURS WORKED. However, if the employer requires the employee to deviate from his normal home-to-work/workto-home travel, as for instance, when an employee is asked to deliver or pick-up a message from a customer, the time spent for such travel is considered as hours worked.

Art. 84. Hours worked. Hours worked shall include Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos!*!Vicka!Tamayap!

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' ' vi.

vii.

ATTENDANCE AT LECTURES, MEETINGS, TRAINING PROGRAMS – Not considered as hours worked if ALL OF THE FOLLOWING conditions are present: 1. Attendance is voluntary; 2. Attendance is outside of the employee’s regular working hours; and 3. The employee does not perform any productive work during such attendance. SEMESTRAL BREAK – CONSIDERED HOURS WORKED if teacher cannot use the break gainfully and effectively for their own interest.

b. If the work performed was necessary or it benefitted 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 work was done with the knowledge of his employer or immediate supervisor. c.

The time during which an employee is inactive by reason of interruptions in his work beyond control shall be considered as hours worked 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. POWER INTERRUPTION  Not exceeding twenty (20) minutes = hours worked  Reason - imminence of the resumption of work requires the employee's presence at the place of work and the time is too short for the employees to utilize it effectively and gainfully for his own interest  Exceeding Twenty (20) minutes not hours worked if: a. Employees can leave their workplace or go elsewhere within or without the work premises; b. Employees can use the time effectively for their own interest  In either case, the employer can extend the working hours beyond the regular schedule to compensate the loss of productive man-hours without being liable for overtime pay

  

Five (5) to twenty (20) minutes = hours worked o Reason - time spent is too short for the employee to utilize it effectively and gainfully for his own purposes More than twenty (20) minutes = not hours worked o Especially if employee is completely relieved of his duties such that he can rest completely An employee need not leave the premises of the workplace in order that his rest period shall not be counted as hours worked

3. Applicability to Seamen  No need to set up for seamen a criterion different from that applied to laborers on land, for the only thing that needs to be done is to determine the meaning of the term 'working place.' Thus, a laborer need not leave the premises of the factory, shop or boat in order that his rest period shall not be counted, it being enough that he 'cease to work', may rest completely and leave or may leave at will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of the said factory, shop or boat. (Luzon Stevedoring Co. Inc. vs. Luzon Marine Department Union)  Criterion for determining whether or not seamen are entitled to overtime compensation o Whether they actually rendered service in excess of eight (8) hours a day 4. Applicability to Health Personnel  Principles also applicable to health personnel Art. 85. Meal periods. Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. 1. Duration of Meal Period  General rule – at least 1 hour time-off for regular meals  Cases where meal period may be at least 20 minute: a. Work is non-manual in nature or does not involve strenuous physical exertion b. Establishment regularly operates not less than 16 hours a day

2. Rest Period Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos!*!Vicka!Tamayap!

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' ' c.

Where actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installation to avoid serious loss which the employer would otherwise suffer d. Work is necessary to prevent serious loss of perishable goods Waiver of overtime pay  General rule – right to overtime pay as a result of a ‘compensable shorter meal period’ under existing laws  Conditions for exception: a. Employees voluntarily agree in writing to a shortened meal period and willing to waive the overtime pay b. No diminution in the salary and other fringe benefits c. Work of the employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon d. The value of the benefits derived by the employees for the proposed work arrangement is equal to or commensurate with the compensation due them e. Overtime pay will become due and demandable if they are permitted or made to work beyond 4:30 pm f. Effectivity shall be of temporary duration as determined by the Secretary of Labor and Employment 2. Compensability of Meal Period  20 minutes – compensable; part of working time  1 hour or more – not part of working time o Except if employee is not completely relieved of his duties during the 1-hour period PANAM vs. Pan American Employees Association (1 SCRA 527) Facts: During the 1-hour meal period the mechanics were required to stand by for emergency work. If they happened not to be available when called, they were reprimanded by the leadman. ISSUE: Should the one-hour meal period be considered as hours worked? HELD: Yes, it must be considered as hours worked and compensable. RATIO: The mechanics could not rest completely as they had to be ready on call

3. Coffee Break  5 – 20 minutes – compensable working time Art. 86. Night shift differential. Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning. 1. Night Shift Differential  Premium given to an employee for working between 10:00 pm and 6:00 am 2. Reason for the Law  Hygienic, medical, moral, cultural and socio-biologic reasons are in accord that night work has many inconveniences and when there is no alternative but to perform it 3. Distinction Between Overtime Pay and Night Shift Differential  Night shift differential - additional compensation given to an employee for working between the hours of 10:00 pm and 6:00 am  Overtime pay – extra compensation given to an employee for working excess of 8 hours in a day 4. Employees Not Entitled to Night Shift Differential a. Government employees including those employed in government-owned or controlled corporations with special charters b. Managerial employees c. Officers and members of a managerial staff d. Field personnel and other employees whose time and performance is unsupervised by the employer e. Employees of retail and service establishment regularly employing not more than 5 workers f. Domestic helpers g. Persons in the personal service of another h. Workers who are engaged on task or contract basis, or those paid a fixed amount for performing work irrespective of the time consumed in the performance thereof


'


' ' 5. Waiver of Night Shift Differential  Founded on public policy, thus, cannot be waived  Claim for unpaid night shift differential – can be compromised o Allowed by Art. 227 of the Labor Code o Not contrary to public policy because what is compromised is the claim for unpaid (past) night shift differential, not the right to night shift differential o The compromise does not relieve the employer from paying future night shift differential 6. Night Shift Differential Rate  Minimum – 10% of the regular wage of each hour of work rendered between 10:00 pm and 6:00 am ORDINARY DAY  10% of the regular wage of each hour of work rendered between 10:00 pm and 6:00 am  Illustration: An employee with a daily wage of P145.00 who works from 10:00 pm to 6:00 am on an ordinary day will receive total pay of P159, computed as follows: Night Shift Differential Rate P145.00 x 0.10 = P14.50 Total Pay P145.00 + P14.50 = P159.50 *0.10 = 10% REST DAY OR SPECIAL DAY  Regular wage PLUS at least 30% and an additional amount of not less than 10% of such premium rate for each hour of work performed  Illustration: An employee with a daily wage of P145.00 who works on October 31 at 10:00 pm to 6:00 am of the following day (November 1), which is a special day, will receive P195.00, computed as follows: Hourly Rate P145.00 ÷ 8 hours = P18.13 Rate for 2-hour work on P18.13 x 2 hours = P36.26 October 31 Rate for 6-hour work on November 1

P18.13 x 6 hours + 30% premium* = P141.38

Total Pay

*30% premium = 0.30 x (18.13 x 6) ** 10% = 0.10 x (36.26 + 141.38) REGULAR HOLIDAY  Regular wage PLUS no less than 10% of such premium rate for each hour of work performed  Illustration An employee with a daily wage of P145.00 who works on April 8 at 10:00 pm to 6:00 am of the following day (April 9), which is a regular holiday, will receive P279.20, computed as follows: Hourly Rate P145.00 ÷ 8 hours = P18.13 Rate for 2-hour work on April 8 P18.13 x 2 hours = P36.26 Rate for 6-hour work on April 9 P18.13 x 6 hours + 200% premium* = P217.56 Total Pay P36.26 + P217.56 + 10%** = P279.20 *200% premium = 2 x (18.13 x 6) ** 10% = 0.10 x (36.26 + 217.56) OVERTIME WORK BETWEEN 10:00 PM AND 6:00 AM  Regular wage PLUS at least 25% and an additional amount of no less than 10% of such overtime rate for each hour of work performed between 10:00 pm and 6:00 am  Illustration An employee with a daily wage of P145.00 who works from 2:00 pm until 12:00 midnight, will receive P194.86, computed as follows: Hourly Rate P145.00 ÷ 8 hours = P18.13 Overtime Rate for 2 hours P18.13 x 2 hours = P36.26 Night Shift Differential for 2 hours P18.13 x 6 hours + 200% premium* = P217.56 Total Pay P36.26 + P217.56 + 10%** = P279.20


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P36.26 + P141.38 + 10%** = P195.40


' ' *200% premium = 2 x (18.13 x 6) ** 10% = 0.10 x (36.26 + 217.56) Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. 1. Concept of Overtime Work  Overtime Work – services rendered in excess of 8 hours in a day  Day – 24-hour period commencing from the time the employee started working  Rest day work – work rendered during rest days  Holiday work – work rendered during holidays 2. Reason for the Law  Compensate the inconvenience of an employee who works beyond 8 hours

o o

Not contrary to public policy because what is compromised is the claim for unpaid (past) overtime compensation, not the right to overtime compensation The compromise does not relieve the employer from paying future overtime compensation

5. Estoppel and Laches Not a Defense  The principle of estoppels and laches is not a defense in claims for overtime compensation  Reason – it will bring about a situation whereby the employee who cannot expressly renounce their right to extra compensation for overtime work, may be compelled to accomplish the same by mere silence or lapse of time, thereby frustrating the purpose of the law by indirection 6. Prescription is a Defense  May be raised as a defense, pursuant to Art. 291 of the Labor Code 7. Burden of Proof  Complainant  Should prove that overtime work was actually performed

3. Compensability of Unauthorized Overtime Work  Compensable if: o Work performed was necessary o Benefited the company o Employee could not abandon his work at the end of the 8-hour period because there was no substitute ready to take his place  Performed upon order of his immediate superior notwithstanding the fact that there was a standing circular to the effect that before overtime work may be performed with pay, the approval of the corresponding department head should be secured

8. Overtime Rates ORDINARY DAY  Regular wage PLUS at least 25% thereof  Illustration: An employee with a daily wage of P145.00 who renders 2-hour overtime work on an ordinary day will receive P190.32, computed as follows: Hourly Rate P145.00 ÷ 8 hours = P18.13 Overtime Rate for 2 Hours P18.13 x 2 hours + 25%* = P45.32 Total Pay P145.00 + P45.32 = P190.32 *25% = 0.25 x (18.13 x 2)

4. Waiver of Overtime Pay  Founded on public policy, thus, cannot be waived  Claim for unpaid overtime compensation – can be compromised o Allowed by Art. 227 of the Labor Code

SPECIAL DAY OR REST DAY  Rate for the first 8 hours on the special day or rest day PLUS at least 30% thereof  Illustration:


'


' ' An employee with a daily wage of P145.00 who works for 10 hours on a special day or rest day will receive P249.75, computed as follows: Special Day/Rest Day Rate P145.00 + 30% premium pay* = P188.50 Hourly Rate P188.50 ÷ 8 hours = P23.56 Overtime Rate for 2 Hours P23.56 x 2 hours + 30%** = P61.25 Total Pay P188.50 + P61.25 = P249.75 *30% premium pay = P145.00 x 0.30 **30% = 0.30 x (23.56 x 2) REGULAR HOLIDAY  Rate for the first 8 hours on such holiday PLUS at least 30% thereof  Illustration: An employee with a daily wage of P145.00 who works for 10 hours on May 1 (Labor Day) will receive P384.25, computed as follows: Regular Holiday Rate P145.00 x 200% = P290.00 Hourly Rate P290.00 ÷ 8 hours = P36.25 Overtime Rate for Hours P36.25 x 2 hours + 30%* = P94.25 Total Pay P290.00 + P94.25 = P384.25 *30% = 0.30 x (36.25 x 2) REGULAR HOLIDAY  Regular holiday-rest day rate for the first 8 hours on such holiday PLUS at least 30% thereof  Illustration: An employee with a daily wage of P145.00 whose rest day is on a Sunday, and renders a 2-hour overtime work on the last Sunday of August (National Heroes Day), will receive P499.51, computed as follows: Regular Holiday Rate P145.00 x 200% + 30%* = P377.00 Hourly Rate P377.00 ÷ 8 hours = P47.12

Overtime Rate for Two (2) Hours P122.51 Total Pay

P377.00 + P122.51 = P499.51

*30% = 0.3 x (P145.00 x 2) **30% = 0.3 x (P47.12 x 2) 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 required in this Chapter. 1. Prohibition Against Offsetting  The obligation to pay overtime compensation is mandatory  Under offsetting, the employee is made to pay twice for his undertime because his work is reduced to that extent while he was made to pay for it with work beyond the regular working hours  Proper method – deduct the undertime from the accrued leave but pay the overtime to which the employee is entitled Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases: a. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; c.

When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;


'

P47.12 x 2 hours + 30%** =


' ' d. When the work is necessary to prevent loss or damage to perishable goods; and e. 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. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter. 1. Compulsory Overtime Work  General Rule – an employee cannot be compelled to render overtime work o Reason – it is violative of the constitutional injunction against involuntary servitude  Exceptions: a. War or emergency situation b. Disaster or calamity c. Urgent repairs d. Preservation of perishable goods e. Completion of work f. Take advantage of favorable condition Art. 90. Computation of additional compensation. For purposes of computing overtime and other additional remuneration as required by this Chapter, the "regular wage" of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. 1. The Regular Wage  Confined to cash wage ONLY, without deduction on account of facilities provided by the employer  Includes all payments which the parties have agreed shall be received during the work week, including piecework wages, differential payments for working at undesirable times, such as at night or on Saturdays and holidays, and the cost of board and lodging customarily furnished the employee (NAWASA vs. NWSA Consolidated Unions)  The essence is regularity and continuity of enjoyment

o

Therefore, cash benefits not regularly and continuously enjoyed do not form part of the regular wage, hence, they cannot be included in the computation of overtime pay, night shift differential, etc.

Art. 91 Right to weekly rest day. Rest Day is the period of inactivity of not less than 24 consecutive hours to an employee after rendering service for a week. Week of labor ordinary number of six labor days. Purpose of the law The purpose of granting a rest day is to promote the health, well-being and happiness of the working class. Rest day of ordinary employees: 24 consecutive hours after every six consecutive normal work days. Rest day of health personnel: Cities or municipalities: Less than 1M population or in hospital or clinics with less than 100 bed capacity: 24 consecutive hours, after every 6 consecutive normal work days. Atleast 1M population or in hospitals or clinics with atleast 100 bed capacity: 48 hours after 5 days work. Who determines rest day? GR: EMPLOYER EXP: preference of the employee should be respected if based on religious grounds, provided he inform the employer in writing atleast 7 days before the desired effectivity of the initial rest day so preferred. Notice of rest day: All employees simultaneously: written notice posted conspicuously in the workplace at least 1 week before it becomes effective. Not to all employees: employer should inform the employees concerned through written notices posted conspicuously in the workplace at least 1 week before it becomes effective. Art 92. When employer may require work on a rest day. GR: the employer may not require the employees to work on a restday. EXP: 1. Disaster/calamity 2. Urgent repairs 3. Abnormal pressure of work 4. Prevention of perishable goods 5. Nature of work 6. Favorable weather condition


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' ' 7. Exigencies of service Art 93. Compensation of rest day, Sunday, or holiday work. Premium pay Additional compensation given to a covered employee for working on a holiday or rest day. RATES: a. On a rest day or special day Additional compensation of atleast 30% of his regular wage. b. On a special day falling on a rest day Additional compensation of atleast 50% of his regular wage. c. On a regular holiday Not exceeding 8 hours shall be paid atleast 200% of his regular daily wage. d. On a regular holiday falling on a rest day Additional compensation of atleast 30% of his regular holiday rate of 200%. GR: Sunday work considered an ordinary day, not entitled to premium pay, EXP: unless it is the established rest day. EXP to EXP: no regular work days and no regular rest day scheduled, entitled to premium pay for the Sunday work. Employees not entitles to premium pay: a. Government employees and those employed in governmentowned or controlled corporations; b. Managerial employees within the purview of Book III of the labor code; c. Officers and members of managerial staff; d. Domestic servants; e. Persons in the personal service of another; f. Workers paid by result; g. Non-agricultural field personnel; and h. Members of the family of the employer who are dependent upon him for support. th

*premium pay not considered in computation of 13 month pay.

Art 94. Right to holiday pay. Holiday pay Is a premium given to an employee during regular holidays. Purpose: to prevent diminution of the monthly income of employees on account of work interruptions. Rate: The holiday pay is 100% of the regular daily wage. • Employee is entitled to holiday pay even if he does not work during the regular holiday. • If the employee works, he gets 200% of his regular daily wage. List of regular holidays a. New Year’s Day- Jan 1 b. Maundy Thursday- movable date c. Good Friday- movable date d. ‘Id-ul-Fitr- movable date e. Araw ng kagitingan- April 9 f. Labor Day- May 1 g. Independence Day- June 12 h. National Heroes Day- last Sunday of august i. Bonifacio day- Nov 30 j. Christmas Day- Dec 25 k. Rizal Day- Dec 30 l. Eid’l Adha- movable date • Muslim holidays (ART 169 of the code of muslim personal laws of the Philippines) by virtue of proclamation no. 1198 which took effect on oct 26, 197, all private corporations, offices, agencies and entities or establishments operating within muslim provinces and cities shall observe the said holidays, all employees whether muslims or non-muslims, are excused from reporting for work without reduction in their usual compensation. o Muslim employees working outside muslim provinces and cities shall also be excused without diminution or loss of wage. Employees Not entitled to holiday pay a. Government employees and those employed in governmentowned or controlled corporations; b. Managerial employees; c. Officers and members of managerial staff; d. Domestic helpers;


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' ' e. Persons in the personal service of another; f. Employees of retail and service establishments regularly employing less than 10 workers; g. Field personnel and other employees whose time and performance is unsupervised by the employer; h. Members of the family of the employer who are dependent upon him for support. i. Workers paid by results. Rules: Piece rate workers: not entitled, paid at fixed amount performing work irrespective of time consumed in performance. Sales personnel: not entitled, they regularly perform their duties away from the principal place of business, and their actual hours of work cannot be determined with reasonable certainty. Seasonal workers: not entitled during off- season when they are not at work. Teacher and faculty members: not entitled to holiday pay on regular holidays falling within semestral vacation. However, entitled on regular holidays falling within the Christmas vacation. • Faculty members who according to their contracts are paid per lecture hour: not entitled because they are obliged to work and consent to be paid only for work actually done. Monthly-paid employees: entitled *GR: for the company with the divisor 365 already means that the legal holidays are included in the monthly pay of the employee. *GR: for company with the divisor 251 means that the holiday pay is not included in the monthly salary of the employee. Effects of Absences: • Covered employees are entitled to holiday pay when they are on leave of absence with pay. • Employees who are on leave of absence without pay on the day immediately preceding the regular holiday are not entitled to holiday pay.

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If the days immediately preceding the regular holiday is a nonworking day or rest day of the employee, he is not deemed to be on a leave of absence therefore entitled to holiday pay if he worked on the day preceding the non-working holiday. If there are 2 successive regular holidays, the employee is not entitled to holiday pay if he absents himself on the day immediately preceding the first holiday. o However, if he works on the first holiday, he is entitled to holiday pay on the second holiday.

Double Holiday: • 200% of the basic wage o Entitled even if said holiday is unworked • 400% if he worked on 2 regular holidays falling on the same day. Holidays when business is closed • Temporary: entitled • Permanent: not entitled ART 95. Right to service Incentive leave Service incentive leave: • is akin to vacation leave. • Intended not merely to give additional salary but to give chance to get much needed rest in order to replenish his worn our energies. • Law grant 5 days leave with pay for every employee who has rendered at least 1 year of service. • If not used at the end of the year, shall be commuted to its money equivalent. Employees not entitled: a. Government employees and those employed in governmentowned or controlled corporations; b. Managerial employees; c. Officers and members of managerial staff; d. Domestic helpers; e. Persons in the personal service of another;


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Employees of retail and service establishments regularly employing less than 10 workers; g. Field personnel and other employees whose time and performance is unsupervised by the employer; h. Members of the family of the employer who are dependent upon him for support. i. Those who are already enjoying leave with pay atleast 5 days; *Vacation Leave: not standard of law, management prerogative. ART 96. Service charge: • Applies only to business establishments collecting service charges, such as hotels, restaurants and similar enterprises, including those entities operating primarily as private subsidiaries of the government. Employees entitled to service charge: • All employees, regardless of their position, designation, employment status, irrespective of the method by which they are paid, except managerial employees. Distribution of service charge: • 85% for covered employees • 15% for management • Distribution to covered employees shall be done not less than once every two weeks or twice a month intervals not exceeding 16 days. Abolition of service charge: • The share of the covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges. Title III Working Conditions for Special Groups of Women Chapter I Employment of Women

ARTICLE 130.Nightwork Prohibition— -applies to all employers whether operating for profit or not: (a) government employees and GOC or GCC (b) employers of household helpers and persons in personal service of another General Rule: An employer cannot require a female employee to work with or without compensation on the following hours: (a) industrial establishment- 10:00pm to 6:00am (b) commercial establishment- 12midnight to 6:00am (c) agricultural establishment- nighttime (the period commencing from sunset to sunrise[Art. 13 of CC] ARTICLE 131.Exceptions— -nightwork prohibition does not apply t the following cases: (a) emergency situation- disasters or calamity, or in case of force majeure or imminent danger to public safety (b) urgent repairs- on machineries, equipment or installation to avoid serious loss (c) urgent work- to prevent serious loss of perishable goods (d) managerial or technical employees (e) health and welfare employees(f) peculiarity of work- where the work cannot be performed with equal efficiency by male workers (g) family members- the immediate member of the family operating the establishment (h) established practice- where the employment of female workers is the established practice even before the rules of implementing the Labor Code became effective (Feb. 3, 1975) (i) analogous cases- exempted by the Secretary of Labor in appropriate cases ARTICLE 132.Facilities for Women— -employers may be required to provide the following facilities to female workers which shall be regulated in appropriate cases by the Secretary of Labor: (a) seats (b) toilet rooms, lavatories, a dressing room (c) nursery


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' ' ARTICLE 133.Maternity Leave Benefits— -has been superseded with the integration of maternity leave with the Social Security Law, Sec. 14-A: -female workers must have paid at least 3 monthly contributions in the 12-month period immediately preceding the childbirth, abortion, miscarriage -shall be paid daily maternity benefit equivalent to her average daily salary (a) 60days- normal delivery (b) 78days- cesarean delivery -conditions: (a) Employee has notified her employer of her pregnancy ad the probable date of birth (b) Full payment shall be advanced by the employer 30days from filing of the application (c) Payment of benefits bars the recovery of sickness benefits within the period of leave (d) Applicable only for the first four deliveries or miscarriages (e) SSS shall immediately reimburse the employer 100% (f) Employer will pay to the SSS damages equivalent to the benefits which the female employee is entitled, in cases where: o 1) he failed to remit the SSS contributions required o 2) he failed to notify SSS of such pregnancy Paternity Leave (R.A No. 8187) Leave for 7 days -Who are entitled? Married male employees for the first 4 deliveries of the legitimate spouse with whom he is cohabiting -conditions: (a) male employee should be employed at the time of the delivery of his child (b) employee should notify his employer about the pregnancy of his wife and the expected date of delivery (c) wife has given birth, suffers a miscarriage or an abortion - paternity leave is not convertible to cash - leave can be availed of before, during or after the delivery by his wife, but not later than 60 days the delivery Parental Leave for Solo Parents (R.A No. 8972- Solo Parents’ Act of 2000) -Who are solo parents:

(a) a woman who gives birth as a result of rape or crimes against chastity, WON the offender is convicted (b) a parent left solo with the responsibility of parenthood due to: i. death of the spouse ii. detention of the spouse for at least a year iii. physical of mental incapacity of spouse iv. legal separation of spouse of de facto separation as long as he/she is entitled to the custody of the children v. declaration of nullity of marriage, above condition applies vi. abandonment of the spouse for at least one year (c) unmarried mother/father (d) any other person, provided that he/she is a licensed foster parent by the DSWD or appointed as guardian by the court (e) any family member who assumes as the head of the family because of death, absence, disappearance of abandonment of parents, provided that such lasts for at least a year -entitled to a non-cumulative parental leave of 7 working days -purpose: enable the solo parent to perform parental duties -conditions: (a) employee must have rendered at least one year of service (b) must notify the employer within a reasonable time (c) must present his Solo Parent ID to the employer ARTICLE 134. Family Planning Services; Incentives for Family Planning -application: to all establishments which habitually employ at least 200 at any given period within a year -In-plant family planning requirements: (a) a functional Labor-Management Coordinating Committee (2 to 3 representatives from each management sectors) (b) an in-plant family planning program (c) a clinic equipped with instruments for family planning services -exempted establishments must have a family planning clinic in the workplace which should have a part-time physician who shall render 2hours a day for at least 5days, unless the establishment has a contract with a hospital ARTICLE 135. Discrimination Prohibited— -It shall be unlawful to discriminate against women employee: (a) payment of lesser compensation as against male employee for work of equal value


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' ' (b) favoring male employees (promotion, training opportunities, study, scholarship grants) solely on the account of their sexes -purpose: to provide equal employment opportunities for all and ensure the fundamental equalities of men and women ARTICLE 136.Stipulation Against Marriage— -Prohibited acts of an employer: (a) that a female employee shall not get married (b) to resign upon getting married (c) dismissing or discriminating a female employee because of her marriage -Philippine Telegraph & Telephone Co. vs NLRC: Facts: Female was hired by employer. She indicated that she was single in her job application form despite the fact that she had contracted marriage a few months earlier. When the employer learned that she was married, she was dismissed from employment. Employer has a company policy of not accepting married women. Held: Dismissal is not valid. It runs afoul to the right against discrimination, afforded to women workers. It likewise assaults good morals and public policy. It strikes the ideals and purpose of marriage as an inviolable social institution. ARTICLE 137.Prohibited Acts— - Forbids an employer from: (a) dismiss a female employee to prevent her to enjoy maternity leave benefits, etc (b) dismiss a female employee on the account of her pregnancy, while on leave (c) dismiss or refuse the admission of female employee upon returning to work ARTICLE 138. Classification of Certain Women Workers— - Female workers in entertainment places (night club, cocktail lounge, massage clinic, bar, etc) are deemed employed if they have worked therein for a substantial period of time under the effective control or supervision of the employee. Chapter 2 Employment of Minors

ARTICLE 139. Minimum Employment Age— -superseded by RA No. 7610, as amended by RA nos. 7658 and 9231 -General Rule: a person can be engaged for employment only when he is 15 years old -Exceptions, children below 15 can be employed only in the following instances: (a) when the child works directly under the sole responsibility of his parent or guardian, and only member of his family is employed therein, provided that: i. employment neither endangers his life, safety, health and morals, nor impairs his normal development ii. child is prescribed with primary and secondary education (b) child’s employment in public and entertainment or information through cinema, theater, radio or TV is essential: -House Work: (a) children below 15- not more than 4 hours, but not more than 20/week (b) children 15 but below 18- not more than 8 hours a day, but not more than 40/week -Nightwork prohibition: (a) children below 15- 8pm to 6am (b) children 15 but below 18- 10pm to 6am -Worst Forms of Child Labor: -slavery, prostitution, pornography, illegal activities (i.e dangerous drugs), nature of work in which it is carried out in hazardous or likely to be harmful to health, safety and morals of children ARTICLE 140. Prohibition Against Child Discrimination— -they must not be discriminated against simply on account of minority. -minors must be entitled to the same benefits, terms, and conditions of employment as any other kind of employee similarly situated Chapter III Employment of Househelpers ARTICLE 141. Coverage— -shall apply to all persons rendering services in households for compensation. “Domestic or household service”: services in the employer’s home which is usually necessary or desirable in the maintenance and enjoyment


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' ' thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. - other examples: gardeners, cooks, nursemaids - One should be hired specifically for household work. In absence of specific engagement one cannot be considered househelper. Ex. Children of househelper or relatives who live under the employers roof Apex Mining Co. vs NLRC: FACTS: SC was employed by Apex Mining as laundrywoman at its staffhouse. While she was doing the laundry, she accidentally slipped and hit her back on a stone. She was permitted to go one leave for the medication but after such she was not allowed to return to work. She filed a complaint for illegal dismissal. Apex Mining’s defense is that she was not a regular employee but a househelper. HELD: She was not a househelper but a regular employee. She was not working for a family but for a compensation. Barcenas vs. NLRC: FACTS: B was hired by Manila Buddist Temple as secretary and interpreter. B’s position required her to receive calls of the Head Monk, run errands for the Head Monk. After the death of the Head Monk, B’s allowance was discontinued. B filed a compliant for illegal dismissal. The Manila Buddist Temple claimed that she was not its employee but a servant who confined herself to the needs of the Head Monk, thus, her position was coterminous with that of her master. HELD: B was a regular employee. Her work cannot be categorized as mere domestic but essential to the operation and religious functions of the temple. ARTICLE 142. Contracts of Domestic Service— -maximum of 2 years ARTICLE 143. Minimum Wage— -amended ARTICLE 144.Minimum Cash Wage— -minimum wage refers to cash wage only -it does not include cost of lodging, food, medical attendance, etc.

ARTICLE 145.Assignment to Non-Household Work— -what is prohibited is not the assignment to work in a commercial, industrial or agricultural enterprise; it is the payment of wage lower than those prescribed in the non-household work ARTICLE 146.Opportunity for Education— -if under 18years old, the employer shall give him/her an opportunity for at least elementary education -expenses shall be part of the compensation ARTICLE 147.Treatment of househelpers— - just and humane manner - in no case shall physical violence be used Working hours: not more than 10hours a day; with 4days vacation each month with pay ARTICLE 148. Board, Lodging and Medical Attendance— -Medical attendance is limited to treatment for ailments contracted by househelper while in the service of the employer -Does not include hospitalization -Contract for household service shall be void if household helper cannot afford to acquire clothing -in case of death, employer shall bear the funeral expenses commensurate to the standard of living of the deceased -the transfer or use of the body of the deceased is prohibited, unless allowed by him or the legal guardian with court approval ARTICLE 149.Indemnity for Unjust Termination— -If period is fixed, neither the employer nor the household helper ay terminate, except for a just cause -If household helper is unjustly dismissed: he shall be paid the compensation plus that for 15days by way of indemnity -If household helper leaves without justifiable reason: he shall forfeit unpaid salary due him not exceeding 15days ARTICLE 150.Service of termination notice— -If there is no stipulated period, the employer can terminate the household helper by giving him notice 5days before the intended date


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' ' ARTICLE 151.Employment Certification— - a written statement of the nature and duration of the service - includes,the efficiency and conduct as household helper ARTICLE 152.Employment Records— - employer may keep records to reflect the actual terms and conditions of employment - helper shall authenticate such by signature or thumbmark

Chapter IV Employment of Homeworkers ARTICLE 153.Regulation of Industrial Homeworkers -“Industrial homework”- a system of production under which work for an employer or contractor is carried out by a homeworker at his home. Limitation: (a) explosives, fireworks, and similar articles (b) drugs and poisons (c) other articles, processing of which requires exposure to toxic substances -Homeworkers organization, may be form, assist or join organizations duly registered with the Dept. of Labor -the duly registered organization has the right to bargain collectively, to own property, to sue and be sued, etc. ARTICLE 154. Regulations of the Secretary of Labor -Payment for Homework- immediately upon receipt of the finished goods or articles -Conditions: (a) employer may require the homeworker to redo a work which has been improperly executed without having to pay the stipulated rate again (b) an employer, contractor or sub-contractor need not pay the home worker for any work which has been done on goods or articles which have been returned for reasons attributable to the fault of the homeworker -Standard rates shall be determined through the ff. procedure:

(a) time and motion studies (b) individual/ collective agreement between the employer and its workers as approved by the Secretary of Labor or his representative (c) consultation with representative of employers and workers orgs in a tripartite conference ARTICLE 155: Distribution of Homework— -employer of homeworkers- includes: any person, natural or artificial, who, for his account, or on behalf of any person residing outside the country, directly or indirectly, or through any employee, agent, contractor, or subcontractor, or any other person: (1) delivers or causes to be delivered any materials to be processed in a home and thereafter to be returned and distributed according to his directions (2) sells any goods, articles, materials to be processed or fabricated in a home and then rebuys them after such processing, either himself or though another person -agents of foreign principals are considered employers -contractor and subcontractor- any person who for the account of or benefit of an employer delivers or causes to be delivered to the homeworker goods or articles; and thereafter be returned or distributed according to the direction of employer -employer is jointly and severally liable with the contractor or subcontractor

SPECIAL LAWS REPUBLIC ACT NO. 10151 AN ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS, THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED FORTY-TWO, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES SECTION 1. Article 130 of the Labor Code is hereby repealed. SEC. 2. Article 131 of the Labor Code is hereby repealed. SEC. 3. The subsequent articles in Boot Three, Title III, Chapter I to Chapter IV of Presidential Decree No. 442 are hereby renumbered accordingly.


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' ' SEC. 4. A new chapter is hereby inserted after Book Three, Title III of Presidential Decree No. 442, to read as follows: “Chapter V “Employment of Night Workers “Art. 154. Coverage.— This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers. ‘”Night worker’ means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers’ representatives/labor organizations and employers.” “Art. 155. Health Assessment, – At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: “(a) Before taking up an assignment as a night worker; “(b) At regular intervals during such an assignment; and “(c) If they experience health problems during such an assignment which are not caused by factors other than the performance of night work. “With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers’ consent and shall not be used to their detriment.” “Art. 156. Mandatory Facilities.— Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE.” “Art. 157. Transfer.— Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work.

“If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period. “A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health.” “Art. 158. Women Night Workers.— Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: “(a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth; “(b) For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child: “(1) During pregnancy; “(2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers. “During the periods referred to in this article: “(i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities. “(ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position. ‘Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work. “The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave. “The provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws.” “Art. 159. Compensation.— The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work.”


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' ' “Art. 160. Social Services.—Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work.” “Art. 161. Night Work Schedules.— Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly.” SEC. 8. Penalties.— Any violation of this Act, and the rules and regulations issued pursuant hereof shall be punished with a fine of not less than Thirty thousand pesos (P30,000.00) nor more than Fifty thousand pesos (P50,000.00) or imprisonment of not less than six (6) months, or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership or association, or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association, or entity.

who shall prejudice any person for assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination.

Republic Act No. 9710 AN ACT PROVIDING FOR THE MAGNA CARTA OF WOMEN

Section 18. Special Leave Benefits for Women. - A woman employee having rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.

REPUBLIC ACT NO. 8187 Republic Act No. 9262 AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES

SECTION 43. Entitled to Leave. – Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order. Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code and Civil Service Rules and Regulations. Likewise, an employer

AN ACT GRANTING PATERNITY LEAVE OF SEVEN (7) DAYS WITH FULL PAY TO ALL MARRIED MALE EMPLOYEES IN THE PRIVATE AND PUBLIC SECTORS FOR THE FIRST FOUR (4) DELIVERIES OF THE LEGITIMATE SPOUSE WITH WHOM HE IS COHABITING AND FOR OTHER PURPOSES. SECTION 2. Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be entitled to a paternity leave of seven (7) days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting. The male employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the expected date of such delivery. For purposes, of this Act, delivery shall include childbirth or any miscarriage.


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' ' REPUBLIC ACT NO. 8972 AN ACT PROVIDING FOR BENEFITS AND PRIVILEGES TO SOLO PARENTS AND THEIR CHILDREN, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES

Section 3. Definition of Terms. - Whenever used in this Act, the following terms shall mean as follows: (a) "Solo parent" - any individual who falls under any of the following categories: (1) A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child; (2) Parent left solo or alone with the responsibility of parenthood due to death of spouse; (3) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year; (4) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner; (5) Parent left solo or alone with the responsibility of parenthood due to legal separation or de factoseparation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children; (6) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children;

(7) Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year; (8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution; (9) Any other person who solely provides parental care and support to a child or children; (10) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent. A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. Section 6. Flexible Work Schedule. - The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. Section 7. Work Discrimination. - No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. Section 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year. TITLE II Wages Chapter 1 PRELIMINARY MATTERS


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' ' ARTICLE 97. Definitions. – As used in this Title: (a) “Person” means an individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons. (b) “Employer” includes any person acting directly o r indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations. (c) “Employee” includes any individual employed by an employer. (d) “Agriculture” includes farming in all its branches and, among other things, includes cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. (e) “Employ” includes to suffer or permit to work. (f) “Wage” paid to any employee shall mean 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 of 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, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. “Fair and reasonable value” shall not include any profit to the employer, or to any person affiliated with the employer.

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Wages – remunerations or earnings payable by an employer to an employee for work done or to be done or for services rendered or to be rendered. It should arise from employer-employee relationship Includes the fair and reasonable value of board, lodging, and other facilities customarily furnished by the employer to the employee Customarily – founded on long-established and constant practice connoting regularity

WAGES SALARY Both refer to a reward or recompense for services performed Compensation for manual Denotes a higher grade of labor, skilled or unskilled, employment, or a superior paid at stated times and grade of services and measured by the day, implies a position in office week, month, or season Indicates considerable Suggestive of a higher and play for lower and less more important service responsible character of employment Exempt from attachment Not exempt or execution •

Basic Wage – regular base pay of an employee

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Facilities – items of expense necessary for the laborer’s and his family’s existence and subsistence

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The cost of facilities furnished by the employer may be deducted or charged against an employee under the ff conditions: 1. The facilities must be customarily furnished by the trade 2. The provisions of deductible facilities must be voluntarily accepted in writing by the employee 3. The facilities must be charged at fair and reasonable value

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Supplements – extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages.


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Criterion whether a benefit is a supplement or a facility: purpose Purpose: primarily for the benefit of the employee, not considered as facility Ex. Transportation allowance

4. Private school teachers who have worked at least 1 month within the yr 5. Employees working in two or more private firms whether on full-time or part-time basis 6. Employees who resigned or whose services were th terminated before the payment of the 13 month pay

Sales Commission – forms part of wage/salary where there exists e-e relationship Bonus – an amount granted and paid to an employee for his industry and loyalty which contributed to the success of the employer’s business and made possible the realization of profits - GR: not a demandable and enforceable obligation - Exceptions: 1. If the grant thereof is the result of an agreement 2. If made part of the wages  Bonus is considered part of the wages: a. If it is given in a fixed amount without any condition, regardless of w/n profits are realized b. If it has ripened into practice by virtue of its long and regular concession - To be considered a regular practice, the giving of bonus should have been done consistently, voluntarily and deliberately over a long period of time. th

13 month pay –extra remuneration given to an employee in an amount equivalent to 1/12 of the basic salary earned by an employee within a calendar year - In its computation, only the basic salary should be considered

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Overload – excess of the normal or regular teaching load - Extra pay – not part of the basic salary, not included in th the computation of the 13 month pay

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Entitled to 13 month pay: 1. Rank-and-file employees who have worked for at least 1 month during a calendar yr 2. Employees who are paid on piece-work basis 3. Employees who are paid a fixed or guaranteed wage plus commission

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Employers exempted from the 13 month pay law: 1. The gov’t and any of its subsidiaries, including GOCCs, except those corps operating essentially as private subsidiaries of the gov’t th 2. Those already paying their employees a 13 month pay or more in a calendar yr or its equivalent 3. Employers of household helpers and persons in the personal service of another in relation to such workers 4. Those paid purely on commission, boundary or task basis, and those who are paid fixed amount for performing specific work, except where the workers are paid on a piece-rate basis th Time of payment of 13 month pay: December 24 of each yr or th 14 month pay – gratuitous

ARTICLE 98. Application of Title. – This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law. •

Exceptions on the application of the Coverage of the Law on Wages: 1. Household or domestic helpers 2. Homeworkers engaged in needlework 3. Workers employed in any cottage industry duly registered in accordance with law, if performed by workers in their respective homes 4. Workers in any duly registered cooperative when so recommended by the Bureau of Cooperative Development and upon approval of the Secretary of DOLE 5. Farm tenancy or leasehold


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' ' 1. It cannot be waived (mandatory) 2. Not bargainable •

Sanctions for failure or refusal to comply to pay the prescribed wage increase: 1. Criminal liability – 25k - 100k; 2-4 yrs 2. Double indemnity – double the unpaid benefits owing to employee

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Agriculture – farming activities in conjunction with farming operations. It includes: 1. The cultivation or tillage of soil 2. Dairying 3. The production, cultivation, growing and harvesting of agricultural and horticultural commodities; and 4. The raising of livestock or poultry

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The minimum wage rate of agricultural workers is different from that of non-agricultural Agricultural employee – a person who is employed in an undertaking principally engaged in the foregoing activities

Chapter 2 MINIMUM WAGE RATES ARTICLE 99. Regional minimum wages. – The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. (As amended by Section 3, Republic Act No. 6727, June 9, 1989). • • •

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Purpose of the law: assure decent living conditions of the worker Basis of minimum wage: not exceeding 8 hrs/day Methods employed in fixing the minimum wage: 1. Floor-wage method - Prescribes a determinate amount that would be added to the prevailing statutory minimum wage 2. Salary-ceiling method - Prescribes a wage adjustment that would apply only to employees receiving a certain denominated salary ceiling Minimum wage varies from region to region Factors to be considered in fixing the minimum wage: 1. Demand for living wages 2. Wage adjustment vis-à-vis consumer price index 3. Cost of living and changes or increase therein 4. The needs of workers and their families 5. The need to induce industries to invest on the countryside 6. Improvements in the standards of living 7. The prevailing wage levels 8. Faire return of capital invested and capacity to pay the workers 9. Effects on employment generation and family income; and 10. The equitable distribution of income and wealth along the imperatives of economic and social development

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ARTICLE 100. Prohibition against elimination or diminution of benefits. – Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code. •

When non-diminution of benefits is not violated: 1. The action does not reduction or elimination of benefits 2. If it deducts the fair and reasonable value of facilities 3. Where an employer reduces the bonuses it used to grant its employees

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The grant of benefits for a long period of time may ripen into a company practice and create a vested right upon the employees. To be considered as such, it should have been observed a long period of time, and must be shown to have been consistent and deliberate.

Prohibitions on minimum wage fixed by law: Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos!*!Vicka!Tamayap!

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' ' ARTICLE 101. Payment by results. - (a) The Secretary of Labor and Employment shall regulate the payment of wages by results, including pakyao, piecework, and other non-time work, in order to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and employers organizations. •

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Categories of workers paid by results: 1. Those whose time and performance are supervised by the employer: control is over the manner as to how the work is to be performed 2. Those whose time and performance are unsupervised by the employer: control is over the result of the work Piece workers – connote a laborer or worker with no fixed salary, wages or remuneration but receiving as compensation from his employer depending upon the work done or the result of the said work irrespective of the amount of time employed The compensation of workers paid by results should not be less than the statutory minimum wage for an 8-hr work or a proportion thereof for less than 8 hrs work In the absence of such prescribed wage rates for piece-rate workers, the ordinary minimum wage rates prescribed by the RTWPB shall apply. Chapter 3 PAYMENT OF WAGES

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All notes and coins issued by the Bangko Sentral ng Pilipinas are legal tender

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A check, whether a manager’s or ordinary, is not a legal tender Payment of wages in legal tender, mandatory - Purpose: to prevent the employee from being shortchanged and to ensure that the compensation given could be used by the employee for any purpose that he wants If an employer pays the wages in a medium other than legal tender, it will not produce the effect of payment. - Effect: it will not discharge the employer from liability for unpaid wages

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When payment of wages by check or money order: 1. When such manner of payment is customary on the date of the effectivity of the LC 2. When so stipulated in a CBA 3. When there is a bank or other facility for encashment within the radius of 1 km from the workplace, provided: a. that the employer or any of his agent does not receive any pecuniary benefit directly or indirectly from the arrangement, b. that the employees are given reasonable time during banking hours to withdraw their wages from the bank during company time, c. that the employee consents to such an agreement, in the absence of a collective agreement on the matter

ARTICLE 102. Forms of payment. – No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement.

ARTICLE 103. Time of payment. – Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month.

Legal Tender – that currency which has been made suitable by law for the purpose of tender of payment of debts.

The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following


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' ' conditions, in the absence of a collective bargaining agreement or arbitration award:

1. Actual or impending emergencies caused by fire, flood, etc rendering payment thereat impossible 2. When the employer provides free transportation back and forth 3. Under any other analogous circumstances, provided that the time spent by the employees in collecting their wages shall be considered as compensable hours of work

(1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; (2) That final settlement is made upon completion of the work.

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Frequency of Payment GR: wages shall be paid not less than once every 2 weeks or twice a month at intervals not exceeding 16 days Exception: in cases of wages pertaining to task which cannot be finished in 2 weeks, payment thereof shall be made at intervals not exceeding 16 days in proportion to the amount of work completed. Final settlement shall be made immediately upon completion of work. Delayed payment of wages may be excused on account of: 1. Force majeure – events which arise from legitimate or illegitimate acts of persons other than the employer, such as war, robbery, etc 2. Circumstances beyond control – fortuitous events independent of human intervention, such as floods, typhoons, earthquakes, and other natural calamities Payment of wages should be made immediately thereafter No work, no pay - Exceptions: a. Employee illegally locked out b. Dismissal c. Suspension

ARTICLE 104. Place of payment. – Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages. Place of payment: • GR: near the place of undertaking • Exceptions:

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Payment in recreational places prohibited Payment through ATM, allowed under certain conditions

ARTICLE 105. Direct payment of wages. – Wages shall be paid directly to the workers to whom they are due, except: (a) In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority given by the worker for the purpose; or (b) Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid. • •

GR: Wages should be paid directly to the employee Exceptions: 1. Where the employer is authorized in writing by the employee to pay his wages to a member of the family


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' ' 2. Where payment to another person of any part of the employee’s wage is authorized by existing law 3. In case of death of employee 4. In case of force majeure • •

If a specific job was contracted by a group, payment of wages may be coursed through the leader of the group Payment of wages of an employee who has died: to the heirs who should submit to the employer an affidavit attesting to their relationship with their deceased and the fact that they are his heirs, to the exclusion of all other persons.

agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. •

Contracting/subcontracting – one whereby an employer engages the services of a contractor to perform a certain work, task or job on his account under his own responsibility free from the control and direction of his employer in all matters except as to the result of the work - Not illegal per se. (refer to Arts. 106-107)

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Requisites of valid contracting/ subcontracting: 1. The contractor or subcontractor must have a distinct and independent business and must undertake to perform the job, work or service on his account, under his own responsibility, according to his own manner and method, free from control and direction of the principal in all matters connected with the performance of the work, except as to the results thereof; and 2. The contractor or subcontractor must have substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of the business

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Substantial capital or investment: Php3M Legal effect of legitimate contracting or subcontracting : does not create an e-e relationship between himself and the employees of the contractor : The employees of the contractor remain the contractor’s employees and his alone. However, when the contractor fails to pay the wages of his employees in accordance with the LC, the employer becomes jointly and severally liable with his contractor for such wages “to the extent of the work performed under the contract” The party with whom an independent contractor deals is solidarily liable with the latter for unpaid wages, and only to that extent and for that purpose that the latter is considered a direct employer.

ARTICLE 106. Contractor or subcontractor. – Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an

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When contracting or subcontracting is illegal:


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' ' 1. Labor-only contracting – an arrangement whereby the contractor who does not have substantial capital or investment in the form of tools, equipment, machineries, and work premises, merely recruits, supplies or places workers only, to a principal employer to perform a job, work or activity that is directly related to the main business of the principal employer. • Elements: a. The contractor supplies workers only to a principal employer b. The workers perform activities that are directly related to the main business of the principal c. The contractor does not have substantial capital or investment to actually perform the job, work or service under its own account or service under its own account or responsibility. • Legal effect : The law establishes an e-e relationship between the principal employer and the employees of the contractor : The contractor is considered as a mere agent of the principal employer, and therefore, both the principal employer and the contractor are solidarily liable for al rightful claims of the employees 2. Contracting out work with a “cabo” • Cabo – refers to a person or group of persons or to a labor group which, in the guise of a lab org, supplies workers to an employer, with or without monetary or other consideration, whether in the capacity of an agent of the employer or as an ostensible independent contractor. 3. Contracting out work through an in-house agency • In-house agency – refers to a contractor or subcontractor engaged in the supply of labor which is owned, managed or controlled by the principal and which operates solely for the principal. 4. Contracting out work that is directly related to the business or operation of the principal by reason of a strike or lockout, whether actual or imminent • A criterion for determining w/n there is labor-only contracting and contemplates employees hired through a contractor or intermediary.

Illegal only if the job, work, or service contracted is directly related to the business of the principal. 5. Contracting out work when not done in good faith and not justified by the exigencies of the business and the same results in the termination of regular employees, reduction of work hours, or reduction or splitting of the bargaining unit 6. Contracting out work being performed by union members when such will interfere with, restrain or coerce employment in the exercise of their right to self-organization • Illegal only when such will interfere with, restrain or coerce employees in the exercise of their right to selforganization. •

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Other prohibited activities: (badfaith) 1. Requiring him to perform functions, which are currently being performed by the regular employees of the principal or of the contractor or of the subcontractor 2. Requiring him to sign as a precondition to employment or continued employment, an antedated resignation letter, a blank payroll; a waiver of labstand including minimum wages and social or welfare benefits, or a quitclaim releasing the principal contractor or subcontractor from any liability as to payment of future claims 3. Requiring him to sign a contract fixing the period of employment to a term shorter than the term of the contract between the principal and the contractor or subcontractor, unless the latter contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement.

ARTICLE 107. Indirect employer. – The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. •

Independent contractor – a person who carries on an independent business and undertakes the contract work on his own account, under his own responsibility, according to his own


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manner and method, free from the control and direction of his employer or principal in all matters connected with the performance f the work except as to the result thereof; and has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. Mere absence of bond is not a controlling factor in determining whether a person is an independent contractor. Contractors and subcontractors are required to register with the DOLE. Failure to register shall give rise to the presumption that the contractor is engaged in labor-only contraction. Trilateral relationship – exists in legitimate labor contracting - The principal decides the job or service to be contracted out, while the contractor undertakes to perform the job or service, and the workers accomplish the job or service

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The principal employer is considered only an indirect employer The principal employer and the contractor are solidarily liable only for unpaid wages

Factors determinative of independent contractorship: 1. Whether the contractor is carrying on an independent business 2. Nature and extent of work 3. Skill required 4. Term and duration of the relationship 5. Existence of a contract for the performance of a specified p[piece of work 6. Control and supervision of the work 7. Control of the premises 8. The duty to supply the premises, tools, appliances, material and, labor, and the mode, manner, and terms of payment

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Job contracting The contractor provides services No e-e relationship exists between the employees of the contractor and the principal employer

Control factor in an independent contractorship: confined to the results If an independent contractorship is not established, the relationship would be regarded as a labor-only arrangement, in which case, the relationship of e-e will be deemed to exist between the principal and the employees of the contractor o Exceptions: 1. Joint venture arrangement 2. Contract of agency

Labor-only contracting The contractor provides man-power only There exists an e-e relationship created by law between the principal employer and the employees of the laboronly contractor Employer is considered a direct employer The principal employer and the labor-only contractor are solidarily liable for all the rightful claims of the contractor’s employees

ARTICLE 108. Posting of bond. – An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. •

Purpose: intended to guarantee the payment of wages due the employee should the contractor or subcontractor fail to pay the same

ARTICLE 109. Solidary liability. – The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. •

Purpose: intended to facilitate, if not guarantee, payment of worker’s wages, including the statutory minimum wage


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Extent of liability of indirect employer: payment of wages The solidarity liability of an indirect employer is limited only to the extent of the work performed under the contract An indirect employer cannot be held liable for: 1. Backwages 2. Separation pay 3. Damages arising from the acts or omissions of his independent contractor The imposition of solidary liability does not preclude an indirect employer from seeking reimbursement from the contractor for whatever amount he pays to the contractor’s employees.

ARTICLE 110. Worker preference in case of bankruptcy. – In the event of bankruptcy or liquidation of an employers business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989). • •

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Applies only in case of bankruptcy or judicial liquidation of the employer Before the workers’ preference may be invoked, there must first be a declaration of bankruptcy or judicial liquidation of the employer’s business Rationale: premised upon the very nature of a preferential right of credit Article 110 does can only be invoked upon the institution of insolvency or judicial liquidation proceedings. It does not apply to rehabilitation proceedings because a company under rehabilitation continues to operate, hence, its assets are not up for distribution to creditors 3 general categories: 1. Special preferred credits (Articles 2241 and 2242 of the CC) - Constitute liens or encumbrances on the specific property to which they relate - Must first be discharged out of the proceeds of the property to which they relate, before ordinary preferred creditors may claim to any part of such proceeds

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a. Claims for laborers’ wages, on the goods manufactured or the work done b. Claims of laborers, masons, mechanics and other workmen, as well as architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals, or other works. 2. Ordinary preferred credits (Article 2244) - Create no liens on specific property - They simply create rights in favor of certain creditors to have cash and other assets of the insolvent applied in a certain consequence or order of priority 3. Common credits (Article 2245) Enjoy no preference Article 110 does not constitute a lien on the property of the insolvent debtor in favor of workers. It is just a preference of credit in their favor – a preference in application. Preference of credits applies only to claims which do not attach to specific properties, while a lien attaches to a particular property. The following monetary claims of workers falling within the ambit of special preferred credits are to be paid only after the taxes on the specific property involved have been paid: a. Claims for laborer’s wages, on good manufactured or the work done b. Claims of laborers, masons and other workmen, architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works Mortgage is a special preferred credits

ARTICLE 111. Attorneys fees. – (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent of the amount of wages recovered. •

(b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of


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wages, attorneys fees which exceed ten percent of the amount of wages recovered. Attorney’s fees may be awarded: 1. In cases of unlawful withholding of wages 2. In cases where the employee was forced to litigate with third persons or incur expenses to protect his rights and interest Maximum amount of AF’s: 10% of the amount of wages recovered. 10% may be reduced if it is found to be utterly excessive and unreasonable or when the questions involved are neither novel nor difficult AF’s need not necessarily be borne by the losing party. It may be ordered deducted from the total amount due the winning party. Only lawyers are entitled to AF’s. - Exception: a lawyer member of the PAO

(b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. •

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Chapter 4 PROHIBITIONS REGARDING WAGES ARTICLE 112. Non-interference in disposal of wages. – No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person. •

This article stresses the right of an employee to freely dispose of his wages.

ARTICLE 113. Wage deduction. – No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; •

Purpose: to protect the employee from unwarranted practices that diminish his compensation without his knowledge and consent Lawful deductions: 1. Insurance premiums 2. Unions dues 3. Agency fees (written authorization, not required) 4. Special assessments or extraordinary fees levied by a CB agent against its members 5. Fair and reasonable value of facilities (there must be voluntary acceptance by the employee) 6. Obligations of an employee with a third person (there must be written authorization) 7. Cost of lost or damaged tools, materials or equipment supplied by the employer to the employee in trades, occupation or business where the practice of making deductions is recognized 8. Due and demandable debt of an employee to his employer 9. Deductions made in compliance with writs of execution or attachment against the employee for debts incurred for food, shelter, clothing, and medical attendance 10. Income tax 11. Employee’s share in the premium contributions to the SSS 12. Employee’s share in the premium contributions to the National Health Insurance Program; and 13. Employee’s share in the premium contributions to the Home Development Mutual Fund 14. Deductions for absence or tardiness (no work, no pay) 15. Deductions for cost of uniforms (if requested or with the consent of the employees. Otherwise, not deductible) If the employer does not comply with its obligation to check-off union dues and agency fees, it cannot be held liable for the


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union dues and agency fees that it failed to deduct from the salaries of the employees. The employer’s failure to make requisite deductions may constitute a violation of contractual commitment for which it may incur liability for ULP. The authorization to check-off union dues is co-terminus with the union affiliation or membership of the employees The employee’s acceptance of benefits resulting from the CBA justifies the deduction of agency fees from his salary. 3 requisites for a valid check-off of special assessments or other extraordinary expenses: 1. Written resolution by a majority of all the members at a general membership meeting duly called for the purpose 2. Minutes of the meeting duly recorded by the secretary of the union and attested to by the union president, with a list of all members present, the votes cast, and the purpose of the special assessment; and 3. Individual written check-off authorization by the employees concerned - Strict compliance is required

ARTICLE 114. Deposits for loss or damage. – No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. •

When an employer can require deposits for loss or damage: 1. When the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one; or 2. When necessary or desirable as determined by the Secretary of Labor in appropriate rules and regulations

ARTICLE 115. Limitations. – No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made

unless the employee has been heard thereon, and his responsibility has been clearly shown. •

Conditions for effecting deductions from deposits: 1. That the employee concerned is clearly shown to be responsible for the loss 2. That the employee is given reasonable opportunity to show cause why deduction should not be made 3. That the amount of such deductions is fair and reasonable and shall not exceed the actual loss or damage; and 4. The deduction from the wages of the employee does not exceed 20% of the employee’s wages in a week.

ARTICLE 116. Withholding of wages and kickbacks prohibited. - It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent. •

Acts prohibited: 1. Withholding any amount from the wages of a worker 2. Inducing an employee to give up any part of his wages by force, stealth, intimidation, threat or by any other means without the worker’s consent

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Lawful withholding: 1. To set-off an employee’s due and demandable debt to the employer; or 2. To comply with writs of execution or attachment against the employee for debts incurred for food, shelter, clothing and medical attendance

ARTICLE 117. Deduction to ensure employment. – It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment. •

Scope of prohibition: 1. Promise of employment 2. Retention of employment


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' ' It exercises the a technical and administrative supervision over the RTWPB Composition: 1. Ex-officio chairman – Secretary of DOLE 2. Ex-officio Vice Chairman – Director-General of the NWPC 3. Members: i. Executive Director of the NWPC ii. 2 members from the workers sector; and iii. 2 member from the employers sector -

ARTICLE 118. Retaliatory measures. – It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings. •

Significance: freedom accorded to an employee to assert his rights under Title II, Book 3 of the LC, without fear of retaliation.

ARTICLE 119. False reporting. – It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect. •

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Records required of an employer to keep: 1. Payrolls 2. Time records of employees 3. Time records of executives 4. Records of workers paid by results All employment records of employees shall be kept and maintained in or about the premises of the workplace, i.e., the branch office or establishment, where the employees concerned are regularly assigned. Chapter 5 WAGE STUDIES, WAGE ARRANGEMENTS, AND WAGE DETERMINATION

ARTICLE 120. Creation of National Wages and Productivity Commission. - There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination. (As amended by Republic Act No. 6727, June 9, 1989). •

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NWPC – the advisory body to the President of the Philippines and Congress on matters relating to wages, income, and productivity.

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The members representing the labor and management shall be appointed by the President of the Philippines upon recommendation of the Secretary of DOLE, on the basis of the list of nominees submitted by the workers and employers sectors, for a term of 5 yrs, and shall have the same rank, emoluments, allowances, and other benefits as those prescribed by law for labor and management representatives in the Employees’ Compensation Commission.

ARTICLE 121. Powers and functions of the Commission. – The Commission shall have the following powers and functions: (a) To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to wages, incomes and productivity; (b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; (c) To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial, or industry levels; (d) To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in accordance with prescribed guidelines and national development plans; (e) To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and compile data and periodically disseminate information on wages and productivity


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' ' and other related information, including, but not limited to, employment, cost-of-living, labor costs, investments and returns; (f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans; (g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards; (h) To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the consideration of measures to promote wage rationalization and productivity; and (i) To exercise such powers and functions as may be necessary to implement this Act. The Commission shall be composed of the Secretary of Labor and Employment as ex-officio chairman, the Director-General of the National Economic and Development Authority (NEDA) as ex-officio vicechairman, and two (2) members each from workers and employers sectors who shall be appointed by the President of the Philippines upon recommendation of the Secretary of Labor and Employment to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively, and who shall serve for a term of five (5) years. The Executive Director of the Commission shall also be a member of the Commission. The Commission shall be assisted by a Secretariatto be headed by an Executive Director and two (2) Deputy Directors, who shall be appointed by the President of the Philippines, upon the recommendation of the Secretary of Labor and Employment. The Executive Director shall have the same rank, salary, benefits and other emoluments as that of a Department Assistant Secretary, while the Deputy Directors shall have the same rank, salary, benefits and other emoluments as that of a Bureau Director. The members of the Commission representing labor and management shall have the same rank, emoluments, allowances and other benefits as those prescribed by

law for labor and management representatives in the Employees Compensation Commission. (As amended by Republic Act No. 6727, June 9, 1989). •

The NWPC has the power to prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at regional, provincial or industry levels. It is also empowered to formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels.

ARTICLE 122. Creation of Regional Tripartite Wages and Productivity Boards.- There is hereby created Regional Tripartite Wages and Productivity Boards, hereinafter referred to as Regional Boards, in all regions, including autonomous regions as may be established by law. The Commission shall determine the offices/headquarters of the respective Regional Boards. The Regional Boards shall have the following powers and functions in their respective territorial jurisdictions: (a) To develop plans, programs and projects relative to wages, incomes and productivity improvement for their respective regions; (b) To determine and fix minimum wage rates applicable in their regions, provinces or industries therein and to issue the corresponding wage orders, subject to guidelines issued by the Commission; (c) To undertake studies, researches, and surveys necessary for the attainment of their functions, objectives and programs, and to collect and compile data on wages, incomes, productivity and other related information and periodically disseminate the same; (d) To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code; (e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and


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' ' (f) To exercise such other powers and functions as may be necessary to carry out their mandate under this Code. Implementation of the plans, programs, and projects of the Regional Boards referred to in the second paragraph, letter (a) of this Article, shall be through the respective regional offices of the Department of Labor and Employment within their territorial jurisdiction; Provided, however, That the Regional Boards shall have technical supervision over the regional office of the Department of Labor and Employment with respect to the implementation of said plans, programs and projects. Each Regional Board shall be composed of the Regional Director of the Department of Labor and Employment as chairman, the Regional Directors of the National Economic and Development Authority and the Department of Trade and Industry as vice-chairmen and two (2) members each from workers and employers sectors who shall be appointed by the President of the Philippines, upon the recommendation of the Secretary of Labor and Employment, to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively, and who shall serve for a term of five (5) years. Each Regional Board to be headed by its chairman shall be assisted by a Secretariat. (As amended by Republic Act No. 6727, June 9, 1989). •

RTWPB composition: a. Chairman – regional director of the DOLE b. Vice-chairman – regional director of the NEDA - Regional director of DTI c. Members – 2 from the worker’s sector - 2 from the employers’ sector

•

Representatives of the workers and employers sector shall be appointed by the President of the Philippines upon recommendation of the Secretary of DOLE, and shall serve a term of 5 yrs The RTWPB exercises technical supervision over the regional office of the DOLE with respect to the implementation of plans, programs and projects relative to wages, incomes and productivity improvement for their respective regions.

•

• •

Minimum wage fixing is a function of the RTWPB RTWPB has no power to promulgate rules and guidelines for the determination of appropriate minimum wage and productivity measures.

ARTICLE 123. Wage Order. – Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. Any such Wage Order shall take effect after fifteen(15) days from its complete publication in at least one (1) newspaper of general circulation in the region. In the performance of its wage-determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees and employers groups, provincial, city and municipal officials and other interested parties. Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof. The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed. (As amended by Republic Act No. 6727, June 9, 1989). •

•

A wage order takes effect after 15 days from its complete publication in at least 1 newspaper of general circulation in the region Any party aggrieved by the Wage Order may appeal such order to the NWPC within 10 calendar days from publication of such order.

ARTICLE 124. Standards/Criteria for minimum wage fixing. – The regional minimum wages to be established by the Regional Board shall


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' ' be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following: (a) The demand for living wages; (b) Wage adjustment vis–vis the consumer price index; (c) The cost of living and changes or increases therein; (d) The needs of workers and their families; (e) The need to induce industries to invest in the countryside; (f) Improvements in standards of living; (g) The prevailing wage levels; (h) Fair return of the capital invested and capacity to pay of employers; (i) Effects on employment generation and family income; and (j) The equitable distribution of income and wealth along the imperatives of economic and social development. The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying with industries, provinces or localities if in the judgment of the Regional Board, conditions make such local differentiation proper and necessary to effectuate the purpose of this Title. Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office, an

itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages. Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration. In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration. The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or wage order. As used herein, a wage distortion shall mean a 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 distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed


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' ' wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours.

3. If the grievance machinery fails to settle the dispute, the matter shall be threshed out through voluntary arbitration

All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates. (As amended by Republic Act No. 6727, June 9, 1989). • -

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•

•

Wage distortion A situation where an increase in the 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 distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation For wage distortion to exist, severe contraction is enough It presupposes an increase in the compensation of the lower ranks in an office hierarchy without a corresponding raise for higher-tiered employees in the same region of the country, resulting in the elimination or the severe contradiction of the distinction between the two groups. Elements: a. An existing hierarchy of positions with corresponding salary rates b. A significant change in the salary arte of a lower pay class without a concomitant increase in the salary rate of a higher one c. The elimination or severe contraction of the distinction between the two levels; and d. The existence of the distortion in the same region of the country Procedure for correction of Wage Distortion: a. In Unionized Establishments: 1. The employer and the union shall negotiate to correct the distortions 2. If the negotiations fail, the matter shall be brought to the grievance machinery under their CBA

b. In Non-Unionized Establishment: 1. The employers and the workers shall negotiate to correct such distortions 2. If negotiations fail, the matter shall be brought to the NCMB for conciliation 3. If condition fails, the dispute shall be referred to the appropriate branch of the NLRC for compulsory arbitration •

Employers are obliged to file and register annually with the appropriate RTWPB, NWPC and the NSO an itemized listing of their workers and employees below the managerial level, including learners, apprentices, and disabled/handicapped workers and their corresponding salaries and wages.

ARTICLE 125. Freedom to bargain. – No wage order shall be construed to prevent workers in particular firms or enterprises or industries from bargaining for higher wages with their respective employers. (As amended by Republic Act No. 6727, June 9, 1989). •

As a matter of policy, the State promotes collective bargaining as the primary mode of settling wages and other terms and conditions of employment.

ARTICLE 126. Prohibition against injunction. No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the Regional Boards. (As amended by Republic Act No. 6727, June 9, 1989). •

Reason: to enable the NWPC and the RTWPB to discharge their functions smoothly, particularly in wage fixing which deserves preferential consideration.


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' ' ARTICLE 127. Non-diminution of benefits. – No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (As amended by Republic Act No. 6727, June 9, 1989). •

• •

The power of the RTWPB to determine and fix minimum wage is a mere delegated power, and therefore, it should be exercised within the limits of its authority. It cannot set a wage rate lower than that prescribed by Congress It can, however, order that the minimum wages fixed by it be extended not only to minimum wage earners but also to those who are already receiving more than the minimum up to sa certain denominated ceiling. Chapter 6 ADMINITRATION AND ENFORCEMENT

ARTICLE 128. Visitorial and enforcement power.- (a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employers records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant there to. (b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employeremployee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the

course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994). (c) The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stop page of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. (d) It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. (e) Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. (f) The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.


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' ' •

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• -

Powers of the Secretary of Labor and Employment: 1. Visitorial Power 2. Enforcement Power 3. Power to order suspension or stoppage of operations for failure to comply with health and safety standards. The Visitorial Power: a. Inspect the records and premises of an employer b. Copy pertinent records or documents c. Question any employee; and d. Investigate any fact, condition or matter for the purpose of determining whether an employer is complying with labor standards The visitorial power can be exercised at any time of the day or night, whether work is being undertaken therein. It can be done on a routine bases, i.e., routine inspection or upon request of an employee, i.e., complaint inspection The Enforcement Power To issue compliance orders on the basis of findings of Labor Standards and Welfare Officers (LSWO) made in the course of inspection, that violation of labor standards has been committed. Writs of execution may be issued to enforce their orders Intended to provide the workers to immediate access to their rights and benefits without being inconvenienced by arbitration or litigation processes that prove to be not only nerve-wracking but financially burdensome in the long run.

1. 2. -

•

Limitations on the exercise of enforcement power: 1. Contest the findings of the LSWO 2. Raise issues supported by documentary proofs which were not considered in the course of inspection

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Visitorial and Enforcement powers are not restricted by the amount involved.

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Power to order suspension or stoppage of operations Exercised where the condition obtaining in the workplace pose grave and imminent danger to the health and safety of workers in the workplace In imminent danger cases, the employer may make the necessary rectification at the plant-level within 24 hours from the date of inspection In non-imminent danger cases, the LSWO shall determine the reasonable period of compliance depending on the gravity of the hazards. Within 24 hrs from the issuance of the order, a hearing shall be conducted with the assistance of the LSWO concerned to determine whether the order shall be lifter or not. The proceedings shall be terminated within 72 hours and a copy of the order of resolution shall be immediately furnished the Secretary of DOLE If the stoppage or suspension is attributable to the fault of the employer, the employees are entitled to their salaries or wages during the period of such suspension of operations.

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•

•

•

The visitorial and enforcement powers given to the Secretary of DOLE or his duly authorized representatives is relevant to and exercisable over establishments, not over individual employees because what is sought to be achieved by its exercise is the observance of, and/or compliance by, such establishment with labor standards laws and regulations. In case of an award rendered in the exercise of visitorial and enforcement powers, the entire employees who are still working with said establishments should benefit therefrom even if they did not sign the complaint or request for inspection. Remedies:

Motion for reconsideration , to be filed within 7 calendar days from receipt of the order Appeal to the Secretary of DOLE, to be filed within 10 calendar days from receipt of the order A motion for reconsideration filed beyond the 7-day reglementary period shall be treated as an appeal if filed within the 10-day period for appeal, but subject to the requirements for the perfection of an appeal.

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ARTICLE 129. Recovery of wages, simple money claims and other benefits. – Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through


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' ' summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers.

•

Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules.

Basis

The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989). •

Article 129 confers upon the Regional Director of the DOLE the authority to hear and decide claims for unpaid wages and other monetary claims and benefits filed by an employee or person employed in domestic or household service, whose employment has been and doers not seek reinstatement anymore.

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Requisites: 1. The claim is purely for recovery of unpaid wages and other monetary claims and benefits 2. The claim is filed by an employee, househelper or person employed on domestic or household service 3. The employee, househelper or person employed in domestic or household service has already been separated from service and does not seek reinstatement anymore 4. The aggregate money claims of each claimant does not exceed 5k If the following requisites are not complied with, the case will fall within the exclusive jurisdiction of the Arbitration Branch of the NLRC. Remedy: Appeal to the NLRC within 5 calendar days from receipt of the decision

Subject matter

Workers involved

Amount involved Appellate body Period to appeal

Adjudicatory Power Complaint filed by the employee Pure money claims

Only to employees who have already been separated from service and do not seek reinstatement Not exceeding 5k

Enforcement Power Inspection result Extends to violations of occupational health and safety standards Only to employees who are still in service

NLRC

Not limited by amount involved Secretary of DOLE

Within 5 calendar days from receipt

Within 10 calendar days from receipt


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' ' 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: Every employer shall keep in his establishment such first-aid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the Department of Labor and Employment shall prescribe. The employer shall take steps for the training of a sufficient number of employees in first-aid treatment. 1. First Aid Treatment • Adequate, immediate and necessary medical and dental attention or remedy given in case of injury or sudden illness suffered by a worker during employment, irrespective of whether or not such injury or illness is work-connected before more extensive medical and/or dental treatment can be secured. • Does not include continued treatment or follow-up treatment. 2. Scope of the Law • The obligation to keep first aid medicines, equipment and facilities applies to all employers, regardless of the number of employees they employ. Art. 157. Emergency medical and dental services. It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of: The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which case, the services of a graduate first-aider shall be provided for the protection of workers, where no registered nurse is available. The Secretary of Labor and Employment shall provide by appropriate regulations, the services that shall be required where the number of employees does not exceed fifty (50) and shall determine by appropriate order, hazardous workplaces for purposes of this Article;

The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three hundred (300). In cases of hazardous workplaces, no employer shall engage the services of a physician or a dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less than eight (8) hours, in the case of those employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician and dentist may be engaged on retainer basis, subject to such regulations as the Secretary of Labor and Employment may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency. (As amended by Presidential Decree NO. 570-A, Section 26) 1. The Required Medical and Dental Services Shall depend upon the number of employees and the nature of the workplace. • •

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10 to 50 workers - Graduate First aider 51 to 200 workers - Full-time registered nurse (A full-time first aider will suffice if workplace is nonhazardous and a nurse is not available) 201 to 300 workers - full-time registered nurse Part-time physician Part-time dentist Emergency clinic (regardless of nature of undertaking) Over 300 workers o Hazardous Workplace Full-time registered nurse


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' ' - Full-time physician - Full-time dentist - Dental Clinic - Infirmary or emergency hospital with 1 bed capacity for every 100 workers o

Non-hazardous Workplace nurse

- Full-time registered -

Part-time

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Part-time

physician dentist 2. Concept of Part-time Service • At least 2 hours stay in the premised in a day. • If establishment has more than 1 workshift, 2-hour stay shall be devoted to the workshift with greater number of workers, subject however to call during other shifts in case of emergency. 3. Concept of Full-time Service • At least 8 hours stay in the premises in a day. (Subject to the same qualification as Part-time service in case of multiple workshifts in a day) 4. Hazardous Workplace • Nature of the work exposes the workers to dangerous environmental elements, contaminants or work conditions including ionizing radiation, chemicals, fire, flammable substances, noxious components and the like; • Construction work, logging, firefighting, mining, quarrying, blasting, stevedoring, dock work, deep sea fishing and mechanical farming; • Manufacture or handling of explosive and other pyrotechnical products; • Use or exposed to heavy or power-driven machinery or equipment; • Workers use or are exposed to power-driven tools.

Art. 158. When emergency hospital not required. – The requirement for an emergency hospital or dental clinic shall not be applicable in case there is a hospital or dental clinic which is accessible from the employer’s establishment and he makes arrangement for the reservation therein of the necessary beds and dental facilities for the use of his employees. 1. Alternative to an Emergency Hospital or Dental Clinic • An employer need not put up an emergency hospital or dental clinic in the workplace if: o There is a hospital or dental clinic withing a 5 km radius away from the workplace in an urban area; or one which can be reached by motor vehicle within 25 mins of travel if workplace located in a rural area; o The employer has facilities readily available to transport a worker in case of an emergency; o Employer has a written contract with the hospital or dental clinic for the use thereof in the treatment of workers in case of an emergency • This does not relieve an employer from maintaining an emergency treatment room. Art. 159. Health program. – The physician engaged by an employer shall, in addition to his duties under this Chapter, develop and implement a comprehensive occupational health program for the benefit of the employees of his employer. 1. Objectives of an Occupational Health Program The main objectives of an occupational health program are: a. Assess the worker’s physical, emotional and psychological assets as well as his liabilities in order to facilitate his proper placement and ensure the suitability of individuals according to their physical capacities, mental abilities and emotional make-up in work which they can perform with an acceptable degree of efficiency without endangering their own health and safety and that of their co-workers;


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' ' b.

Protect employees against health hazards in their working environment in order to prevent occupational as well as non-occupational diseases; c. Provision for first-aid, emergency services and treatment depending on the nature of the industry; d. Assure adequate medical care of ill and injured workers; e. Encourage personal health maintenance and physical fitness and proper nutrition practices; and f. Provide guidance, information and services for family planning programs. The Health Program shall include the following activities: a. Maintenance of a healthful work environment by requiring occupational health personnel to conduct regular appraisal of sanitation conditions, periodic inspection of premises, including all facilities therein, and evaluate the working environment in order to detect and appraise occupational health hazards and environmental conditions affecting comfort and job efficiency; b. Health Examinations: Entrance; Periodic; Special examination; Transfer examination; Separation examination. c. Diagnosis and treatment of all injuries and occupational and non-occupational diseases; d. Immunization programs; and e. Accurate and complete medical records of each worker starting from his first examination or treatment, which must be under the exclusive custody and control of the occupational health personnel. Such records shall be made available to the worker or his duly authorized representative and ~ not be used for discriminatory purpose or in any other manner prejudicial to his interest. f. Health Education and Counseling in which the occupational health and safety personnel shall cooperate with the supervisors in imparting appropriate health and safety information to employees, such as health hazards and proper precautions, habits of cleanliness, orderliness, safe

work practices, use and maintenance of available personal protective clothing and devices, and the use of available health services and facilities; and g. Nutrition program which shall be under the dietician and supervised by a physician if the latter is present. 2. Duties of a Company Physician Aside from providing an emergency medical service, a company physician is bound to perform the following duties: a. Conduct pre-employment medical exam for free, for the proper selection and placement of workers; b. Conduct annual physical examination of workers for free; c. Collaborate closely with the safety and technical personnel of the establishment to assure selection and placement of workers from the standpoint of physical, mental, physiological and psychological suitability, including investigation of accidents where the probable causes are exposure to occupational health hazards; d. Develop and implement a comprehensive occupational health and safety program for the employees of the establishment. An annual report describing the health program and the implementation thereof should be submitted to the Bureau of Working Conditions; e. Continually monitor the work environment for health hazards through periodic inspection of the workplace; f. Prevent diseases or injury in the workplace by establishing proper medical supervision over substances used, processes, and work environment; g. Conserve the health of the workers through physical examinations, proper advice for placement and health education; h. Provide medical and surgical care to restore health and earning capacity of injured workers; i. Maintain and analyze records of all medical cases and to prepare and submit to the employer annual medical reports, using form DOLE/BWC/OH-47, as required by this Standards;


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' ' j. k. l.

Conduct studies on occupational health within his means and resources; Act as adviser to management and labor on all health matters; And report directly to top management in order to be effective.

3. Duties of the Company Nurse The duties and functions of the nurse are as follows: a. In the absence of a physician, to organize and administer a health service program integrating occupational safety, otherwise, these activities of the nurse shall be in accordance with the physician; b. Provide nursing care to injured or ill workers; c. Participate in health maintenance examination. If a physician is not available, to perform work activities which are within the scope allowed by the nursing profession, and if more extensive examinations are needed, to refer the same to a physician; d. Participate in the maintenance of occupational health and safety by giving suggestions in the improvement of working environment affecting the health and wellbeing of the workers; and e. Maintain a reporting and records system, and, if a. physician is not available, prepare and submit an annual medical report, using form DOLE/BWC/HSD/OH-47, to the employer, as required by this Standards. 4. Duties of the Company Dentist These shall be in accordance with the Standards prescribed by the Bureau of Dental Health Services of the Department of Health. 5. Duties of the Company First Aider a. Give immediate temporary treatment in case of injury or illness, before the services of a physician becomes available. If the case needs a physician the first-aider shall immediately call or refer the injured to one;

b. c.

Participate in the maintenance of occupational safety and health programs, if a member of the Safety Committee; and Maintain medical services and facilities.

6. Duties of the Employer With regard to occupational health, these are the duties of the employer: a. Establish in his workplace occupational. health services to provide a healthful place of work; b. Adopt and implement a comprehensive health program for his workers; c. Enter into a contract with hospitals or dental clinics, if these are not available in his workplace; and d. Maintain a health record of his programs and activities and submit an annual medical report, using form DOLE/BWC/HSD/OH-47, to the Regional Labor Office concerned, copy furnished the Bureau of Working Conditions on or before the last day of March of the year following the covered period. 7. Physical Examination All workers, irrespective of age and sex, shall undergo a complete and thorough physical examination, free of charge: a. before entering employment for the first time; b. periodically, or at such intervals as may be necessary on account of the conditions or risks involved in the work; c. when transferred or separated from employment; and d. when injured or ill. Purpose of Pre-employment Physical Examination: • To determine the physical condition of the prospective employee at the time of hiring • To prevent the placement of a worker on a job where, through some physical or mental defects, he may be dangerous to his fellow workers or to property. • Only persons who are medically fit shall be employed in occupations where the risk to health of


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' ' workers is due to toxic substances they handle, or of the work environment. Periodic Annual Medical Examinations: • Conducted in order to follow-up previous findings • To allow early detection of occupational and nonoccupational diseases • To determine the effect of exposure to health hazards. • When occupational diseases have been detected and the continued employment of the worker may jeopardize his health – his employment shall be discontinued until after his recovery. • If circumstances so permit, worker may be given some other job consistent with his state of health and which will not impede or retard his recovery. Special Examinations • Required if there is undue exposure to health hazards, such as lead, mercury, hydrogen sulfide, sulfur dioxide, nitroglycerin, nitroglycol, and other similar substances. Return to Work Examination • Conducted to detect if the worker is still contagious and to determine if the worker is fit to return to work. Workers hired for a specific job shall not be transferred to another until they have been examined by the physician and certified that such transfer is medically advisable. An employee leaving the company shall be examined by the physician: • to determine if he is suffering from an occupational disease, or • to determine whether he is suffering from any injury or illness not completely healed, or • to determine whether he has sustained an injury 8. Medical and Dental Records • Maintain a record of all medical examinations, treatments and medical activities undertaken, and submit reports containing such information as the

Bureau of Working Conditions may require from time to time. Art. 160. Qualifications of health personnel – The physicians, dentists and nurses employed by employers pursuant to this Chapter shall have the necessary training in industrial medicine and occupational safety and health. The Secretary of Labor and Employment, in consultation with industrial, medical, and occupational safety and health associations, shall establish the qualifications, criteria and conditions of employment of such health personnel. 1. Minimum Qualifications of Health Personnel a. First Aider i. Able to read and write; ii. Completed a course in first aid; iii. Duly certified by the Philippine National Red Cross or by any other org accredited by the same b. Nurse i. Must have passed the exam given by Board of Examiners (board exams) ii. Duly licensed to practice nursing in the Philippines iii. With at least 50 hours of training in occupation nursing conducted by the DOH, the Institute of Public Health of UP, or by any organization accredited by the former. c. Physician i. Must have passed the Board Exams; ii. Licensed to practice medicine in the Phils; iii. A graduate of a training course in occupational medicine conducted by the Bureau of Working Conditions, the Institute of Public Health of UP, or any duly accredited organization d. Dentist i. Passed the Board Exams; ii. Licensed to practice dentistry in the Phils; iii. Completed a training course in Dental Services of the DOH or organization duly accredited by the former.


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' ' 2. If number of workers in hazardous workplace >2,000 (or if non-hazardous workplace; >3,000 workers): higher degree of qualification such as diploma or Master’s degree on Occupational Health or Industrial Health or its equivalent is required. Art. 161. Assistance of employer – It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency. 1. Duty to Provide Assistance: Provide free emergency medical and dental services and facilities. (Self explanatory provision) Chapter II OCCUPATIONAL HEALTH AND SAFETY Art. 162. Safety and health standards. The Secretary of Labor and Employment shall, by appropriate orders, set and enforce mandatory occupational safety and health standards to eliminate or reduce occupational safety and health hazards in all workplaces and institute new, and update existing, programs to ensure safe and healthful working conditions in all places of employment. 1. Purpose of the Law • To protect every worker against the dangers of injury, sickness or death through safe and healthy working conditions, thereby assuring the conservation of valuable manpower resources and the prevention of loss or damage to lives and properties. 2. Coverage • Covers all establishments, workplaces and other undertakings, including agricultural enterprises, whether operating for profit or not. • Exceptions: o Engaged in land, sea and air transportation, except their garages, dry-docks, hangars, maintenance and repair shops and offices; o Residential places exclusively devoted to dwelling purposes; and o Activities of a lessee regarding safety of mining installations, surface or underground, within the mining claim or lease, including mine safety, mineral conservation and

problem of pollution in establishments or workplaces falling under “Mining Industry” as classified by the NEDA. 3. Duty to Observe Safety and Health Standards a. Duty of Employers: i. Keep and maintain workplace free from work hazards likely to cause physical harm to workers or damage to property; ii. Give complete job safety instructions to all his workers, especially to those entering the job for the first time, including those relating to the familiarization with their work environment, hazards to which the workers are exposed to and steps taken in case of emergency; iii. Provide only approved devices and equipment in his workplace. b. Duty of Employees: i. Cooperate with their employer in carrying out the occupational safet and health standards; ii. Report to the supervisor any work hazard they may discover in the workplace; iii. Make proper use of all safeguards and safety devices furnished to them by their employer. c. Duty of Third Parties: Any person, including builders or contractors, who visits, builds, innovates or installs devices in establishments or workplaces shall comply with the provisions of this Rule and all regulations issued by the employer in compliance with the provisions of this Rule and other subsequent issuances of the Secretary of Labor and Employment. 4. Suspension of Rules Any part of these Rules may be temporarily suspended by the Secretary of Labor upon application of employer for the following reasons: (Suspension shall not be longer than the period needed by the employer to comply with the rule, or 1 year, whichever is shorter, renewable for 1 more year, subject to revocation or shortening by the Secretary) a. Unavailability of professional or technical personnel or material and equipment needed to comply with the rule;


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' ' b. Necessary construction or alteration of the prescribed facilities cannot be completed on the effectivity date of the rule; c. If the employer is participating in experiments or studies approved or conducted by the Bureau of Working Conditions designed to demonstrate new techniques to safeguard the safety and health or workers. 5. Variation Order If there shall be practical difficulty or unnecessary hardship in complying with the requirements of any rule or provision of this Standards, the Secretary, upon the recommendation of the Director, may issue an order allowing a variation in complying with such requirements, provided that the purpose of such rule or provision is substantially served and the safety and health of the workers remain ensured. A variation order shall stipulate the conditions under which the variation is permitted and shall be applicable and effective only to the particular employer and operations covered by the Order. A variation order shall remain in effect until revoked by the Secretary. 6. Safety Committee All establishments are required to have a Safety Committee, organized within 1 month from the date the business starts and must reorganize every January of each year. a. Duties of the Safety Committee: i. Plans and develops accident prevention programs for the establishment. ii. Directs the accident prevention efforts of the establishment in accordance with the safety programs safety performance and government regulations in order to prevent accidents from occurring in the workplace. iii. Conducts safety meetings at least once a month. iv. Reviews reports of inspection, accident investigations and implementation of program. v. Submits reports to the manager on its meetings and activities.

vi. Provides necessary assistance to government inspecting authorities in the proper conduct of their activities such as the enforcement of the provisions of this Standards. vii. Initiates and supervises safety training for employees. b. Types of Safety Committees: Type A – Total workforce of over 400 workers. Composed of the following: Chairman – The manager or his authorized representative who must be a top operating official Members – Two Department heads 8 2 workers 8 The Company Physician Secretary – The Safety Man Type B – Total workforce of 201 to 400 workers. Chairman The Manager or his duly authorized representative who must be a top recruiting official Members 1 supervisor 1 worker (must be union member, if organized) Company physician or company nurse Secretary The Safety Man Type C – 100 to 200 workers; composed of: Chairman The manager or authorized representative Members 1 Foreman


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' ' -

1

worker (Union member, if organized) Secretary To be appointed by the Chairman Type D – less than 100 workers; composed of: Chairman Manager Members 1 Foreman 1 worker (Union, if organized) Secretary To be appointed by the Chairman Type E (Joint Committee) – Safety Committees of different establishments housed under one building; composed of: Chairman Chairman of an established committee Members supervisors from 2 different

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2

establishments 1 Secretary To be appointed by the Chairman c. Other types of Safety Organizations: Subject to the approval of Secretary of Labor and Employment or his duly appointed representative. i. Line Type – A form of organization where the general manager or head of the establishment directs the health and safety programs and assumes overall responsibility for the safety in the establishment. He in turn delegates the application of health and safety programs to plant personnel occupying line positions. ii. Staff Type – Staff safety organization or safety engineer type consists of a line organization

''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''' 1$In$high*rise$buildings,$the$secretary$of$the$joint$committee$is$the$Building$ Administrator$

with specialized personnel employed to advise and assist management in all matters of safety. Said personnel are responsible to the top executive exercising staff functions, serve all departments in an advisory capacity and supervise the application of the health and safety program in the workplace. d. Term of Office: Chairman, physician or nurse and the secretary shall be permanent members of the Safety Committee. Term of office of the department head in the Safety Committee shall be for 1 year. In Types A and B, terms of the worker-members shall 2 years each. In Types C, D and E, terms of the worker-members shall be 1 year each. In Type E safety committee, term of office of the Chairman, and the members shall be 1 year. Membership in the Joint Committee shall be rotated among members of the safety committees in other establishments. 7. The Safety Man To act as the employer’s principal assistant and consultant in the application of programs to remove the hazards from the workplace and to correct unsafe work practices. Safety Man has the following duties: a. Serves as Secretary to the Health and Safety Committee. As such, he shall: i. prepare minutes of meetings; ii. report status of recommendations made; iii. notify members of the meetings; and iv. submit to the employer a report of the activities of the committee, including recommendations made. b. Acts in an advisory capacity on all matters pertaining to health and safety for the guidance of the employer and the workers. c. Conducts investigation of accidents as member of the Health and Safety Committee and submits his separate report and analysis of accidents to the employer.


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' ' d. Coordinates all health and safety training programs for the employees and employer. e. Conducts health and safety inspection as member of the committee. f. Maintains or helps in the maintenance of an efficient accident record system and coordinates actions taken by supervisors to eliminate accident causes. g. Provides assistance to government agencies in the conduct of safety and health inspection, accident investigation or any other related programs. h. For purposes of effectiveness in a workplace where fulltime safety man is required, he shall report directly to the employer. 8. Report of Accidents or Occupational Illness a. All work accidents or occupational illnesses in places of employment, resulting in disabling condition shall be reported by the employer to the Regional Labor Office or duly authorized representative in duplicate and a copy furnished the employee or his duly authorized representative using form DOLE/BWC/HSD-IP-6. The formal report shall be submitted by the employer on or before the 20th day of the month following the date of occurrence of the accident or when the illness, is established and an investigation report in the prescribed form shall be submitted by the Regional Office or duly authorized representative on or before the 30th day of the same month. In case of temporary total disability where the injured or ill employee has not reported back to duty on the closing date of reporting, an estimate of the probable days of disability shall be made and entered in the report and corrected after the return of the injured. In all computations, this estimate shall be used. After the return of the injured, the corrected days of absence shall be used. b. Where the accident or fitness results in death or permanent total disability, the employer, in addition to the written report required under sub-paragraph (1) above, shall initially notify the Regional Labor Office or duly authorized representative within twenty four (24)

hours after occurrence using the fastest available means of communication. c. All deaths and permanent total disabilities shall be investigated by the Regional Office or duly authorized representative within forty eight (48) hours after receipt of the initial report of the employer, prepared in duplicate using the prescribed form DOLE/ BWC/OHSD-IP-6a. 9. Report of Dangerous Occurrence Any dangerous occurrence as specified in sub-paragraph (2) hereunder, which may or may not cause serious bodily harm to workers employed or seriously damage the premises of employment shall be investigated and reported by the employer upon occurrence to the Regional Labor Office or duly authorized representative having jurisdiction in duplicate using the prescribed form DOLE/BWC/HSD-IP-6. a. The following are dangerous occurrences, which shall be investigated and reported: i. Explosion of boilers used for heating or power. ii. Explosion of a receiver or storage container, with pressure greater than atmospheric, of any gas or gases (including air) or any liquid resulting from the compression of such gases or liquid. iii. Bursting of a revolving wheel, grinder stone or grinding wheel operated by mechanical power. iv. Collapse of a crane, derrick, winch, hoist or other appliances used in raising or lowering persons or goods or any part thereof, the overturning of a crane, except the breakage of chain or rope sling. v. Explosion or fire causing damage to the structure of any room or place in which persons are employed or to any machine contained therein resulting in the complete suspension of ordinary work in such room or place, or stoppage of machinery or plant for not less than twenty four (24) hours, and


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' ' vi. Electrical short circuit or failure of electrical machinery, plant or apparatus, attended by explosion or fire causing structural damage thereto and involving its stoppage and misuse for not less than 24 hours. 10. Purpose of the Reporting Requirement • Reports made by the employer shall be exclusively for the information of the Regional Labor Office or duly authorized representative in securing data to be used in connection with the performance of its accident and illness prevention duties and activities. • These reports shall not be admissible as evidence in any action or judicial proceedings in respect to such injury, fitness or death on account of which report is made and shall not be made public or subject to public inspection except for prosecution for violations under this Rule. 11. Records to be Kept by Employer a. The employer shall maintain and keep an accident or illness record which shall be open at all times for inspection to authorized personnel containing the following minimum data: i. Date of accident or illness; ii. Name of injured or ill employee, sex and age; iii. Occupation of injured or ill employee at the time of accident or illness; iv. Assigned causes of accident or illness; v. Extent and nature of disability; vi. Period of disability (actual and/or charged); vii. Whether accident involved damaged to materials, equipment or machinery, kind and extent of damage, including estimated or actual cost; and viii. Record of initial notice and/or report to the Regional Labor Office or authorized representative. b. The employer shall accomplish an Annual Work Accident/Illness Exposure Data Report in duplicate using the prescribed form DOLE/BWC/HSD-IP-6b, which shall be submitted to the Bureau copy furnished

the Regional Labor Office or duly authorized representative having jurisdiction on or before the 30th day of the month following the end of each calendar year. 12. Registration Every employer shall register his business with the Regional Labor Office or authorized representative having jurisdiction thereof to form part of a databank of all covered establishments. • The establishment regardless of size of economic activity, whether small, medium or large scale in one single location, shall be one registrable unit. • New establishments shall register within thirty (30) days before operation. • Registration shall be made in form DOLE-BWC-IP-3 in three copies and to be submitted to the Regional Labor Office or authorized representatives. • Registration shall be free of charge and valid for the lifetime of the establishment except when any of the following conditions exists, in which case, re-registration as if it were a new establishment is required: o change in business name, o change in location, o change in ownership, or o re-opening after previous closing. • Registration shall include a layout plan of the place of work floor by floor, in a scale of 1:100 meters white or blue print showing all the physical features of the workplace including storage, exits, aisles, machinery, clinic, emergency devices and location. Art. 163. Research. It shall be the responsibility of the Department of Labor and Employment to conduct continuing studies and research to develop innovative methods, techniques and approaches for dealing with occupational safety and health problems; to discover latent diseases by establishing causal connections between diseases and work in environmental conditions; and to develop medical criteria which will assure insofar as practicable that no employee will suffer impairment or diminution in health, functional capacity, or life expectancy as a result of his work and working conditions.


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' ' 1. Agencies tasked to Conduct Research Vested primarily on the Bureau of Working Conditions and the Occupational Safety and Health Center. Art. 164. Training programs. The Department of Labor and Employment shall develop and implement training programs to increase the number and competence of personnel in the field of occupational safety and industrial health. 1. Training of Personnel in Safety and Health Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel: a. In Non-Hazardous Establishment or Workplace i. 50 to 400 workers per shift – at least 1 of the supervisors or technical personnel shall be trained in occupational health and safety and shall be assigned as part-time safety man. ii. Over 400 workers per shift – at least 2 of its supervisors shall be trained and a full-time safety man provided. b. In Hazardous Establishment or Workplace i. 20 to 200 workers per shift – at least 1 supervisor or technical personnel trained working part-time safety man ii. Over 200 workers per shift – at least 2 supervisors or technical personnel appointed full-time safety man and secretary of the safety committee. The employment of a full-time safety man not be required where the employer enters into a written contract with a qualified consulting organization which shall develop and carry out his safety and health activities; Provided, That the consultant shall conduct plant visits at least four (4) hours a week and is subject to call anytime to conduct accident investigations and is available during scheduled inspections or surveys by the Secretary of Labor and Employment or his authorized representatives. Art. 165. Administration of safety and health laws – The Department of Labor and Employment shall be solely responsible for the administration and enforcement of occupational safety and health laws, regulations and standards in all establishments and

workplaces wherever they may be located; however, chartered cities may be allowed to conduct industrial safety inspections of establishments within their respective jurisdictions where they have adequate facilities and competent personnel for the purpose as determined by the Department of Labor and Employment and subject to national standards established by the latter. The Secretary of Labor and Employment may, through appropriate regulations, collect reasonable fees for the inspection of steam boilers, pressure vessels and pipings and electrical installations, the test and approval for safe use of materials, equipment and other safety devices and the approval of plans for such materials, equipment and devices. The fee so collected shall be deposited in the national treasury to the credit of the occupational safety and health fund and shall be expended exclusively for the administration and enforcement of safety and other labor laws administered by the Department of Labor and Employment. 1. Enforcement of Safety and Health Laws • Only the DOLE is responsible for administration and enforcement of occupational safety and health laws in all workplaces • Chartered cities may however be authorized by the Secretary to enforce these laws in their jurisdictions if they have: o Facilities o Personnel As determined by the national Standards prescribed by the DOLE 2. Types of Inspection • Technical Safety Inspection o For the purpose of safety determination of boilers, pressure vessels, internal combustion engines, electrical installation, elevators, hoisting equipment and other mechanical equipment • General Safety Inspection o Work environment; location and operation of machinery other than those covered by previous type, adequacy of work space, ventilation, lighting, handling, work environment conditions, storage or work procedures,


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' ' protection facilities and other safety and health hazards in workplace 3. Frequency of Inspection Once a year. Special Inspection may be authorized by the Regional Labor Office: • To investigate accidents, occupational illness or dangerous occurrences, like those resulting in permanent total disability or death; • To conduct surveys of working conditions requested by the Bureau for the purpose of evaluating and assessing environmental contaminant and physical conditions; • to conduct investigations, inspection or follow-up inspections upon request of an employers, worker or labor union of the establishment. Title II EMPLOYEES’ COMPENSATION AND STATE INSURANCE FUND Chapter I POLICY AND DEFINITIONS Art. 166. Policy. The State shall promote and develop a tax-exempt employees’ compensation program whereby employees and their dependents, in the event of work-connected disability or death, may promptly secure adequate income benefit and medical related benefits 1. Features of the New Compensation Scheme • Employer does not intervene in the compensation process and it has no control over payment of benefits. • Employer must give contributions to State Insurance Fund, from where compensation payments are taken; Duty is to only pay monthly premiums. • Employees are no longer required to litigate his right to compensation. • Employee simply files a claim with the Employee’s Compensation Commission, which then shall determine whether or not the compensation should be paid. • An illness is compensable only when it is classified as an occupational disease and the conditions that would render them compensable are met; Those not listed as occupational diseases are compensable only if the claimant can prove that the risk of contracting the disease is increased by the conditions of employment.

Compensation benefits are available only in case of work-connected disability or death arising from: o Injury; or o Illness. 2. Compensability of Disability or Death Arising From Injury Injury must be the result of an employment accident that satisfies all of the following conditions: • The employees must have been injured at the place where his work requires him to be; • The employee must have been performing his functions; and • If the injury is sustained elsewhere, the employee must have been executing an order for the employer. It is not necessary that the injury be sustained at the place of employment. As long as the employee acted within the purview of his employment, injury sustained because of it falls within the law’s protection. •

a. The Personal Comfort Doctrine Acts performed by an employee within the time and space limits of his employment, to minister to his personal comfort, such as satisfaction of his thirst, hunger or other physical demands, or to protect himself from excessive cold, shall be deemed incidental to his employment and injuries the employee suffered in the performance of such acts shall be considered compensable and arising out of and in the course of employment. b. Going to and Coming from Place of Work Doctrine Injury or death resulting from an accident while the employee is in transit as regards the work establishment is compensable if the following conditions are met: • The acts of the employee of going to, or coming from, the workplace must have been a continuing act, i.e., he had not been diverted therefrom by any other activity, and he had not departed from his usual route to, or from, his workplace; and


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' ' If the employee was sent on a special errand, the special errand must have been official and in connection with his work. Illustrative Cases (p. 527 – 529 of book) •

c.

LOPEZ vs. EMPLOYEES COMPENSATION COMMISSION Facts: Petitioner's late husband, Pedro Lopez, was employed as a public school teacher at the Urdaneta National High School, Urdaneta, Pangasinan, from July 1, 1973 until his untimely demise on May 27, 1987.chOn April 27, 1987, a memorandum was issued to Pedro Lopez by the head of the school's Science Department and noted by Lino A. Caringal, Sr. the principal lopez complied with his superior's instruction and constructed an improvised electric micro-dam, which he took home to enable him to finish it before the deadline. On May 27, 1987, at around 6:30 A.M., while he was engrossed in his project, he in contact with a live wire was electrocuted. He was immediately brought to a clinic for emergency treatment but was pronounced dead on arrival. The death certificate showed that he died of cardiac arrest due to accidental electrocution. Held: The death is compensable. While the death of Pedro Lopez took place in his house and not in his official work station, which is the school, he was still discharging his function as the one in-charge of the project. He was constrained to finish the project within a specific period of time and he could only do so if he worked overtime in his house. Inasmuch as Lopez had to finish the project on the time for the contest scheduled on October 5 and 9, 1987, it can be implied that Lopez was given permission, if not direction, to perform his work at his house. CELERINO VALERIANO vs. EMPLOYEES’ COMPENSATION COMMISSION Facts: Celerino S. Valeriano was employed as a fire truck driver assigned at the San Juan Fire Station. Sometime on the evening of July 3, 1985, petitioner was standing along Santolan Road, Quezon City, when he met a friend by the name of Alexander Agawin. They decided to proceed to Bonanza Restaurant in EDSA, Quezon City, for dinner. On their way home at around 9:30 PM, the owner-type jeepney they were riding in figured in a head-on collision with another vehicle at the

intersection of N. Domingo and Broadway streets in Quezon City. Due to the strong impact of the collision, petitioner was thrown out of the vehicle and was severely injured. As a result of the mishap, petitioner was brought to several hospitals for treatment. Held: Petitioner Valeriano was not able to demonstrate solidly how his job as a firetruck driver was related to the injuries he had suffered. That he sustained the injuries after pursuing a purely personal and social function -- having dinner with some friends -- is clear from the records of the case. His injuries were not acquired at his work place; nor were they sustained while he was performing an act within the scope of his employment or in pursuit of an order of his superior. Thus, we agree with the conclusion reached by the appellate court that his injuries and consequent disability were not work-connected and thus not compensable. JUANITA NITURA vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Regino S. Nitura, started his military service on October 5, 1978 when he was caged for military training in the Philippine Army. In the evening of March 2, 1986, he was instructed to go to Barangay San Jose, Dipolog City, which is more or less one (1) kilometer from the Command Post of his Company, to check on several personnel of the Command who were then attending a dance party. This instruction was attested to by his Battalion Commander, Col. Loreto M. Deus, 0-90573 Inf. (GSC) PA in his affidavit dated July 8, 1986 (Annex "A" of the Petition, Rollo, p. 15). On his way back to the camp, he passed, crossed and fell from a hanging wooden bridge connects Barangay San Jose, Dipolog City and Barangay Basagan, Katipunan, Zamboanga del Norte, his head hitting the stony portion of the ground. His death certificate (Annex 'B" of the Petition, Rollo, p. 16) shows that he died of "cardiorespiratory arrest, shock, traumatic due to hemorrhage, intracranial due to severe concussion of the brain due to accidental fall". Held: Compensable. Performing an official function when he died. Twenty-Four-Hour Duty Doctrine Under the 24 hour duty doctrine, a soldier on active duty status and is subject to military discipline and military law 24 hours a day. To be entitled to compensation, the


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' ' standard of work connection must still be established by substantial evidence.

Doctrine, a soldier on active duty status and is subject to military discipline and military law 24 hours a day.

DE LA REA vs. EMPLOYEES' COMPENSATION COMMISSION

Note: Disability or death arising from injury by a member of the military while on rest and recreation, which is considered part of the soldier’s military activities, after having gone on actual combat duty, as certified to by the proper commanding officer, is compensable.

Facts: De la Rea enlisted in the Philippine Navy. On May 15, 1982, he was granted vacation leave, for fifteen (15) days, from May 15, to May 30, 1982, for the purpose of undergoing physical examination relative to his re-enlistment in the Philippine Navy. While enjoying his rest and recreation privileges at his hometown in Halang, Amadeo, Cavite, he was shot to death for unknown motive by a certain Pepito Montoya who is also a resident of the same place. Mauricio de la Rea died instantly from gunshot wounds he sustained. Held: Not compensable. De la Rea was not at the time and place where his work is required him to be. Neither was he performing official functions. His death is not work- connected. Military Men “on pass” or on rest and recreation GR: Disability or death arising from injury by a member of the military while “on pass” for a period not exceeding 72 hours is compensable. EXP: If not reported after 72 hour period, not compensable. EXP to EXP: Still compensable if failure was due to legitimate and valid reasons, provided there has been no unjustified deviation from the conditions for the issuance of pass.

Compensability of Death or Disability Arising From Illness Death or disability from illness is compensable: a. if the illness is clarified as an occupational disease; b. if not classified as occupational disease, the risk of contracting the same is proven by substantial evidence to have been increased by the working conditions. Occupational Diseases The following diseases are considered as occupational when contracted under working conditions involving the risks described herein:

HINOGUIN vs. EMPLOYEES' COMPENSATION COMMISSION Facts: On 1 August 1985, Sgt. Hinoguin and two (2) members of his Detachment, sought permission from Captain Frankie Z. Besas, to go on overnight pass to Aritao, Nueva Viscaya, "to settle [an] important matter thereat."Captain Besas orally granted them permission to go to Aritao and to take their issued firearms with them, considering that Aritao was regarded as "a critical place " that is, it had peace and order problems due to the presence of elements of NPA in or in the vicinity of Aritao. Upon reaching the poblacion of Aritao, he was accidentally shot by his companion, as a result of which he died. Held: Compensable because it arose out of and in the course of his employment as a soldier on active duty. Twenty-Four-Hour Duty Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos!*!Vicka!Tamayap!

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' Occupational Diseases

Nature of Employment

1. Cancer of the epithelial lining of the bladder. (Papilloma of the bladder).

Work involving exposure to alphanaphthylamine, betanaphthylamin or benzidine or any part of the salts; and auramine or magenta.

2. Cancer, epithellomatous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or any compound product or residue of any of these substances.

The use of handling of, or exposure to tar; pitch, bitumen, mineral oil (including paraffin) soot or any compound product or residue of any of these substances.

3. Cataract produced by exposure to the glare of, or rays from molten glass or molten or red hot metal.

Frequent and prolonged exposure to the glare of or rays from molten glass or red hot metal.

4. Deafness

Any industrial operation having excessive noise particularly in the higher frequencies.

5. Decompression sickness

Any process carried on in compressed or rarefied air. (a) Caissons disease (b) Aeroembolism Any process carried on in rarefied air. 6. Dermatitis due to irritants and sensitizers The use or handling of chemical agents which are skin irritants and sensitizers.

7. Infections (a) Anthrax

infected with anthrax, handling of animal carcasses or parts of such carcasses including hides, hoofs, and horns. (b) Brucellosis

(c) Glanders

(d) Rabies

Any occupation involving rabid dogs.

(e) Tuberculosis

Any occupation involving close and frequent contact with a source or sources of tuberculosis infection by reason of employment: (a) in the medical treatment or nursing of a person or persons suffering from tuberculosis, (b) as a laboratory worker, pathologists or post-mortem worker, where occupation involves working with material which is a source of tuberculosis infection.

(f) Tularemia

Any occupation involving handling of rabbits, ground squirrels, mice or other rodents.

(g) Weill's disease

Any occupation involving handling of rats, mice, swine and dogs.

(h) Q. Fever or equine encephalomyelitis

Any occupation, involving handling of horses, cattle and sheep, or their slaughter and

Work in connection with animals Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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Any occupation involving handling of contaminated food and drink particularly milk, butter and cheese of infected goats and cows Any occupation involving rabid dogs, or equine animals or carcasses.


' meat packing. (I) Mite dermatitis

Any occupation involving handling of owls or pigeons.

8. Ionizing radiation disease, inflammation, ulceration or malignant disease of skin or subcutaneous tissues of the bones or leukemia, or anemia of the aplastic type due to xrays, ionizing particle, radium or other radioactive substances.

Exposure to X-rays, ionizing particles of radium or other radioactive substances or other forms of radiant energy

(a) Acute radiation syndrome

Short duration of exposure to large doses of X-rays, gamma rays, alpha rays and beta rays.

nitro and aminotoxic derivatives of benzene or its homologue (d) Beryllium or its toxic compounds

risk concerned

(e) Brass, zinc or nickel

All work involving exposure to the risk concerned.

(f) Carbon dioxide

All work involving exposure to the risk concerned. All work involving exposure to the risk concerned All work involving exposure to the risk concerned. All work involving exposure to the risk concerned.

(g) Carbon bisulfide (h) Carbon monoxide (I) Chlorine

(b) Chronic radiation syndrome

(c) Glass Blower’s cataract

Chronic over-exposure to X-rays with a long latent period affecting the skin, blood and reproductive organ. Among furnace men, glass blowers, baker, blacksmith, foundry workers. These are workers exposed to infrared rays.

9. Poisoning and its sequelae caused by:


(j) Chrome or its toxic compounds


(k) Dinitrophenol or its homologue


(l) Halogen derivatives of hydrocarbon of the aliphatic series


(m) Lead or its toxic compounds


(n) Manganese or its toxic compounds

All work involving exposure to the risk concerned

(o) Mercury or its toxic compounds

All work involving exposure to the risk concerned All work involving exposure to the risk concerned.

(a) Ammonia

All work involving exposure of the risk concerned.

(p) Nitrous fumes

(b) Arsenic or its toxic compound


(q) Phosgene


(c) Benzene or its toxic homologues,

All work involving exposure to the

(r) Phosphorus or its toxic

All work involving exposure to the

Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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' compounds

risk concerned.

(s) Sulfur dioxide


persons suffering from viral hepatitis, or in a service ancillary to such treatment or nursing.

10. Pneumoconiosis (a) Coal miner's (b) Bysinosis

Exposure to coal dust. Exposure to cotton dust causing weaver’s cough or mill fever.

(c) Bagassosis

Exposure to sugar cane dust.

(d) Psittacosis

Any occupation involving handling of parrots, parakeets and other species of birds.

11. Diseases caused by abnormalities in temperature and humidity.

Any occupation involving exposure to excessive heat or cold

(a) Heat stroke/cramps/exhaustion

Any occupation involving exposure to excessive heat.

(b) Chilblain/frostbite/freezing

Any occupation involving exposure to excessive cold. Any occupation involving exposure to excessive cold.

(c) Immersion foot/general hypothermia 12. Vascular disturbance in the upper extremities due to continuous vibration from pneumatic tools or power drills, riveting machines or hammers.

Any occupation causing repeated motions, vibrations and pressure of upper extremities.

13. Viral Hepatitis*

Among workers in close and frequent contact with (a) human blood products and with (b) a source of viral hepatitis by reason of employment in the medical treatment or nursing of a person or

14. Poisoning by cadmium*

Among workers in battery factories, who are exposed to cadmium fumes.

15. Leukemia and lymphoma*

Among operating room personnel due to exposure to anesthetics.

16. Cancer of stomach and other lymphatic and blood forming vessels; nasal cavity and sinuses.*

Among woodworkers, wood products industry carpenters, loggers and employees in pulp and paper mills and plywood mills.

17. Cancer of the lungs, liver and brain*

Among vinyl chloride workers, plastic workers

The following, although not considered occupational diseases, are nevertheless [when] work-related, compensable too. 18. CARDIO-VASCULAR conditions —

DISEASES.

of

the

following

(a) If the heart disease was known to have been present during employment, there must be proof that an acute exacerbation was clearly precipitated by unusual strain by reasons of the nature of his work. (b) The strain of work that brings about an acute attack must be of sufficient severity and must be followed within twenty four (24) hours by the clinical signs of a cardiac insult to constitute causal relationship.


'

Any


' (c) If a person who was apparently asymptomatic before being subjected to strain at work showed signs and symptoms of cardiac injury during the performance of his work and such symptoms and signs persisted, it is reasonable to claim a causal relationship. 19. CEREBRO-VASCULAR ACCIDENTS. All the following conditions — (a) There must be a history, which should be proved, or trauma at work (to the head especially) due to unusual and extraordinary physical or mental strain or event, or undue exposure to noxious gases in industry. (b) There must be a direct connection between the trauma or exertion in the course of the employment and the worker's collapse.

(b) There must be direct connection between the offending agent or event and the worker's illness. (c) The signs of consolidation should appear soon (within a few hours) and the symptoms of initial chilling and fever should at least be twenty four (24) hours after the injury or exposure. (d) The patient must manifest any of the following symptoms within a few days of the accident: (1) severe chill and fever; (2) headache and pain, agonizing in character, in the side of the body; (3) short, dry, painful cough with blood-tinged expectoration; and (4) physical signs of consolidation, with fine rales. 22. HERNIA. All the following conditions —

c) If the trauma or exertion then and there caused a brain hemorrhage, the injury may be considered as arising from work.

(a) The hernia should be of recent origin.

20. MALARIA AND SCHISTOSOMIASIS. All the following conditions —

(b) Its appearance was accompanied by pain, discoloration and evidence of a tearing of the tissues.

(a) Through the knowledge of the respective incubation periods of the different types of the diseases, the physician determining the causal relationship between the employment and the illness or malaria or schistosomiasis should be able to tell whether the disease of the afflicted employee manifested itself while he was so employed.chan robles virtual law library

(c) The disease was immediately preceded by undue or severe strain arising out of and in the course of employment.

(b) Compensability should be based on the principle of greater risk of acquiring the disease in the place of work than in the place of usual residence of the afflicted worker. (c) The place of work of employment has to be verified as a malarial or schistosomal work area. 21. PNEUMONIA. All of the following conditions — (a) There must be an honest and definite history of wetting and chilling during the course of employment and also, of injury to the chest wall with or without rib fracture, or inhalation of noxious gases, fumes, and other deleterious substances in the place of work.

(d) A protrusion of mass should appear in the area immediately following the alleged strain. 23. BRONCHIAL ASTHMA. All the following conditions — (a) There is no evidence of history of asthma before employment. (b) The allergen is present in the working conditions. (c) Sensitivity test to allergens in the working environment should yield positive results. (d) A provocative test should show positive results. 24. OSTEOARTHRITIS. a) Any occupation involving: aa) joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers and mechanics; bb) minor or major injuries to the joint; cc) excessive use or constant strenuous usage of a particular


'


' joint, as among sportsmen, particularly those who have engaged in the more active sports activities; dd) extreme temperature changes (humidity, heat, and cold exposures); and ee) faulty work posture or use of vibratory tools. 25. VIRAL ENCEPHALITIS. Any occupation involving; aa) contact with an infected person, as in areas of poor sanitation, with a high density of school children, who are the most frequent virus spreaders; bb) rural exposure, primarily in picnics, camping activities, fishing or hunting in, or adjacent to, woods or subtropical vegetations, or as among agricultural and forest workers; and cc) contact with other sources of infection, such as birds and animals, as among veterinarians and abattoir workers. 26. PEPTIC ULCER. Any occupation involving prolonged emotional, or physical stress, as among professional people, transport workers, and the like. 27. PULMONARY TUBERCULOSIS. In addition to working conditions already listed under PD 626, as amended, any occupation involving constant exposure to harmful substances in the working environment, in the form of gases, fumes, vapors and dust, as in chemical and textile factories; overwork or fatigue; and exposure to rapid variations in temperature, high degree of humidity and bad weather conditions; and 28. VIRAL HEPATITIS. In addition to the working conditions already listed under PD 626, as amended, any occupation involving: exposure to a source of infection through ingestion of water, milk, or other foods contaminated with hepatitis virus; Provided that the physician determining the causal relationship between the employment and the illness should be able to indicate whether the disease of the afflicted worker manifested itself while he was so employed, knowing the incubation period thereof.

b. The disease was contracted as a result of the employee’s exposure to the described risks; c. The disease was contracted within a period of exposure and under such factors necessary to contract it; d. There was no notorious negligence on the part of the employee. GR: Silicosis, asbestosis and byssinosis shall not be compensable if the exposure to the described risk is less than 10 years. EXP: unless proven otherwise.

“Increase Risk” Doctrine •

• • •

•

There is increased risk if the illness is caused by or precipitated by factors inherent in the employees’ nature of work and working conditions. It does not include aggravation of pre-existing illness. All that is required is reasonable work-connection, which could be established by mere substantial evidence. It is essential for the claimant to show that the development of the disease was brought largely by the conditions present in the nature of the job. The test of evidence in compensation cases or the relation of the disease with the employment is probability and not certainty.

Illustrative Cases A. Acute follicular pharyngitis with hypertropic rhinitis SARMIENTO VS. EMPLOYEES' COMPENSATION COMMISSION

Compensability of occupational diseases For an occupational disease to be compensable:

Facts: Martiniano Sarmiento was a casual laborer of the Bureau of Agricultural Extension requiring him to deal with different kinds of plants which have to be sprayed with insecticides and pesticides. On February, 1983, as per medical records, petitioner's illness started as a fever accompanied by chest pain, cough, and watery nasal

a. the employee’s work must involve the described risk. Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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' discharge. His illness was diagnosed as acute follicular pharyngitis with hypertrophic rhinitis. Held: Compensable. An extensive analysis of the petitioner's ailments and the circumstances under which they were suffered provides us with the reasonable proof of work-connection, if not a direct causal relation between his employment and said illnesses. The very nature of petitioner's ailments as respiratory diseases vis-avis his occupation with the Bureau of Agricultural Extension where, as laborer, he was constantly exposed to plant dusts, and chemicals such as pesticides and fertilizers, clearly respiratory irritants, substantiates petitioner's claim of work-connection and increased risk. B. Monocytic Leukemia DURAN, vs.EMPLOYEES' COMPENSATION COMMISSION Facts: Duran entered the government service on October 15, 1941 as an employee in the Department of Finance. He joined the Judiciary on May 31, 1952 as justice of the peace of the municipalities of Basay Sta. Rita and Marabut, province of Samar (pp. 8 and 72, rec.). He was the municipal judge of Sta. Rita, Samar when, after prolonged (5 years) ailments, he succumbed to acute monocytic leukemia on April 28, 1977 Held: Compensable. Deceased served in three municipalities which did not have adequate transportation facilities. He was literally exposed to the elements — the sun, rain, water and rough roads. He worked as if he were a fieldman; he was a roving judge. The tedious work coupled with unhealthy exposure bore down on him after 20 years. He must have been a strong, healthy person when he first joined the Judiciary because it took all of 20 years before he suffered from angina pectoris, gouty arthritis, coronary insufficiency and monocytic leukemia. Needless to say, the human body can only take so much physical and mental pressures.

as municipal treasurer of Daraga, Albay, which position he occupied since July 1, 1975 until his death on June 1, 1976. The cause of his death was certified to be " acute monolytic leukemia." Held: Not Compensable. the acute monolytic leukemia that resulted in the death of the petitioner's husband could have been caused by or traceable to conditions under which he Performed his duties as municipal treasurer. C. Cancer of the Lungs LATAGAN VS. EMPLOYEES’ COMPENSATION COMMISSION Facts:T/Sgt. Josue A. Latagan, who was employed in the Philippine Navy from 1949 up to the time he died in 1978. She claims that her husband fatal ailment known as bronchogenic carcinoma was caused by his employment, and that the risk of contracting the disease was aggravated by the working conditions attendant to his duties as gunnersmate in the Philippine Navy. Held: Not compensable. The cause of her husband's death, bronchogenic carcinoma, is not an occupational disease. Cancer of the lungs was listed as occupational disease, is misplaced because lung cancer, as shown in the list therein, is occupational only in respect to "vinyl chloride workers" and "plastic workers". DATOR vs.EMPLOYEES' COMPENSATION COMMISSION Facts: Dator who was a municipal librarian of the Municipality of Lopez, Quezon when she died of Bronchogenic Carcinoma with Pleural Effusion on December 2, 1972. Held: Compensable. Exposed to dusty books and other deleterious substances in the library which may have increased the risk of her contracting cancer of the lungs.

ARMEÑA vs.EMPLOYEES' COMPENSATION COMMISSION Facts: Patricio D. Armeña, husband of the herein petitioner was employed by the government on February 21, 1942, and held the positions of clerk, public school teacher, budget examiner and lastly

D. Cancer of the liver Abadiano vs. GSIS


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' Facts: Catalina Buenvenida was employed at the Department of Education as elementary grades teacher. The deceased's liver cancer started in September of 1978 as gradual weight loss, nausea and vomiting. These symptoms were later on accompanied by emaciation and gradual enlargement of the upper abdomen. She was then 51 years of age and her death was attributed to her affliction of cancer of the liver. Held: Compensable. The duties of the public school teacher are not confined to the classroonm During the 24 years that Catalina B. Buenvenida worked as a teacher, she must have been exposed to the elements while attending to the outdoor projects which were part of the curriculum and extra curricular activities connected with her school work. E. Cancer of the breast

Held: Not compensable. Cancer of pancreas is not an occupational disease. There is no showing that the work of a bookkeeper would increase the risk of contracting cancer of the pancreas. G. Cancer of the rectum CRISTOBAL vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Fortunato S. Cristobal was employed as Supervising Information Officer 11 of the National Science Development Board (NSDB for short) based in Bicutan, Taguig, Rizal. On April 8, 1976, he developed loose bowel movement which later worsened and his excrement was marked with fresh blood. Self-administered medications were made but symptoms persisted until April 22, 1976 when he was brought to the Hospital . he was diagnosed with rectal malignancy. Despite earnest medical efforts, he succumbed to his illness on May 27, 1977

Bonifacio vs. GSIS Facts: Lourdes Bonifacio was a classroom teacher from August, 1965 until she contracted carcinoma of the breast with metastases to the gastrointestinal tract and lungs which caused her death on October 5, 1978. Held: Not compensable. The cancer which affected the decease not being occupational in her particular employment. F. Cancer of the pancreas MILANO vs.EMPLOYEES' COMPENSATION COMMISSION Facts: Samuel Milano started working for the government in 1955 as a FACOMA bookkeeper. Milano started to feel vague signs of "epigastric pain" which were later diagnosed as "penetrating Duodenal Ulcer On". Dr. Gerardo Ypil of the hospital diagnosed his ailment as "cancer of the pancreas with metastases". On March 15, 1977, he was discharged from the hospital. On the same day, he died of cardiorespiratory arrest due to cancer of the pancreas.

Held: Compensable. The nature of his work exposed him to various chemicals and intense heat. This circumstance must have increased the risk of contracting the cancer of the rectum. H. Cancer of the colon BRAVO vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Bravo was employed at the Bureau of Coast and Geodetic Survey as a cartographer. litho-photo engraving supervisor, he was involved in drafting and plate printing, developing and processing either dry or wet negatives, and supervising the formulation of lightsensitive lithographic chemicals from re-agent of nitric, phosphoric, oleic acids, potassium ferricynamide, ammonium hydroxide and ammonium dichromate in the kithographic laboratory. November, 1979, Bravo complained of irregular bowel movement, constipation and abdominal pain. A few months later he began losing weight and appetite. His ailment was diagnosed as "adenocarcinoma sigmoid (colon) Duke's C and chronic peri-appendicitis". Held: Not compensable. Bravo's ailments were "too remote to be related causally to his work and working conditions" at the Bureau of Coast and Geodetic Survey.


'


' I.

Cirrhosis of the liver

K. Myocardial infraction

SAN VALENTIN vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Delfin San Valentin, husband of petitioner entered the government service in 1951 as a laborer in the Bureau of Plant Industry's Economic Garden. The deceased noticed some symptoms of iii-health, such as discharging urine deep yellow in color, yellowing of skin progressive abdominal enlargement as well as feeling of fullness. He was diagnosed to be suffering from hepatic encephalopathy obstruction jaundice due to tuberculosis of the liver, pancreatic carcinoma and hepatoma. Held: Compensable. The frequent exposure of the deceased to plant chemicals and insecticides affected his health. It is not too farfetched that the ailment of the deceased developed due to the chemicals used in the nursery farm where he was assigned, for it cannot be denied that the nature of his work required him to deal with different kinds of plants which have to be sprayed with insecticides and the like. J. Diabetes mellitus MILLORA VS. EMPLOYEES COMPENSATION COMMISSION Facts: Prisco Millora, who had been a classroom teacher at the Division of Public Schools in Pangasinan since 1963 until his death at age 40 on February 1, 1982. Having been a diabetic during the last eleven [11] years of his life, Prisco Millora had, on several occasions, been admitted to and confined at the Pangasinan Provincial Hospital for treatment of diabetes mellitus and diabetic ulcers. Held: Compensable. Although not predisposed to diabetes mellitus by reason of old age, obesity or heredity, he became diabetic after eight [8] years in said employment. As a classroom teacher, his work was not confined to the regular eight-to-five schedule, but stretched into the long hours of the night preparing lesson plans and instructional materials. That the above-cited work activities likewise increased the deceased's risk of contracting the fatal complications, ulcer of the extremities and cataract.

SEPULVEDA vs.EMPLOYEES' COMPENSATION COMMISSION Facts: Gabriel M. Sepulveda who was a grades school teacher and who died on December 6, 1975 due to an ailment diagnosed as myocardial infarction after having been in the employ of the Department of Education and Culture for more than thirty (30) years. Held: Compensable. The petitioner presented as part of her evidence the certification of the attending physician of Gabriel M. Sepulveda which states that the asthmatic condition was contracted by Gabriel M. Sepulveda due to his occupation as a schoolroom teacher assigned to one of the remotest parts of Tangub City way back in 1945 and that this asthmatic attack came on and off depending upon the stress of his work L. Parkinson’s Disease YOSORES vs. EMPLOYEE'S COMPENSATION COMMISSION Facts: Rodolfo Yosores was employed by the GSIS for a period of twenty-five (25) years. He was doing electrical work during the first ten (10) years until his assignment in 1973 as Field Collection Officer, doing the rounds of GSIS mortagees in different areas of Metro Manila in the performance of his collection work. On July 31, 1988, Yosores retired from the GSIS for total and permanent disability. The cause of his disability, as indicated in his claim papers was Parkinson's Disease. Held: Compensable. The nature and working conditions of Yosores' job, for it is not improbable that there were factors affecting his work as a field collection officer, coupled with the hypertension which he contracted in the course of his employment, which may have constituted "predisposing or exciting factors" in the development of the disease. M. Inguinal hernia ERESE vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Felipe U. Erese filed a claim for disability compensation under Presidential Decree No. 626 with the GSIS in 1976. The Assistant


'


' General Manager of the Medicare and Employment Compensation Department denied his application for benefits on the ground that his ailments, Inguinal Hernia, Error of Refraction, Central Retinopathy and Chronic Otitis Media, are not occupational diseases nor has he substantially proven that said ailments directly resulted from his occupation as Supervising Prison Guard. Held: The GSIS is correct. Erese's ailments could not necessarily and directly have been the result of the risks and hazards of his occupation as prison guard. Hence the ailments may not be considered occupational. And in the absence of proof, we could not conceive or arrive at a logical explanation or probability that they arose out of his employment. N. Senile Cataract JARILLO vs. EMPLOYEES' COMPENSATION COMMISSION Facts: Perfecto Jarillo—born on February 27, 1916—entered government service on January 1, 1955 as a temporary laborer in the Department of Engineering, Quezon City. On July 1, he was designated as construction worker in the same office. anuary 24, 1975, he was admitted to the UST, a cataract operation was performed on his right eye on January 30, 1979. On September 13 to 28, 1977, petitioner was again hospitalized where he was operated on for lens extraction, intracapsular with peripheral iridectomy, this time on his left eye. Prior to this second operation or on April 15, 1977 (p. 9, ECC rec.), petitioner filed a claim for disability benefits under P.D. No. 626. This claim was denied. Held: Entitled for compensation. From the nature of petitioner's duties, there is no doubt that the risk of contracting cataract was increased by his working conditions. His duties as construction worker keeps him on the road seventy percent (70%) of his working time, and ninety-five percent (95%) outdoors. This must have exposed him to the sun's glare and heat, as well as to excessive dirt and dust. Progression/ Deterioration of Illness/ Injury •

Where the illness or injury is shown to have arisen in the course of employment, every natural consequence that flows from the

illness or injury shall be deemed employment-related, hence compensable.

ART. 167. Definition of terms.- As used in this Title, unless the context indicates otherwise: (a) "Code" means the Labor Code of the Philippines instituted under Presidential Decree Numbered four hundred forty-two, as amended. (b) "Commission" means the Employees’ Compensation Commission created under this Title. (c) "SSS" means the Social Security System created under Republic Act Numbered Eleven hundred sixty-one, as amended. (d) "GSIS" means the Government Service Insurance System created under Commonwealth Act Numbered One hundred eighty-six, as amended. (e) "System" means the SSS or GSIS, as the case may be. (f) "Employer" means any person, natural or juridical, employing the services of the employee. (g) "Employee" means any person compulsorily covered by the GSIS under Commonwealth Act Numbered One hundred eighty-six, as amended, including the members of the Armed Forces of the Philippines, and any person employed as casual, emergency, temporary, substitute or contractual, or any person compulsorily covered by the SSS under Republic Act Numbered Eleven hundred sixty-one, as amended. (h) "Person" means any individual, partnership, firm, association, trust, corporation or legal representative thereof. (i) "Dependent" means the legitimate, legitimated or legally adopted or acknowledged natural child who is unmarried, not gainfully employed, and not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect which is congenital or acquired during


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' minority; the legitimate spouse living with the employee and the parents of said employee wholly dependent upon him for regular support. chanroblesvirtuallawlibrary

(r) "Related benefit" means all payments made under this Title for appliances and supplies. (s) "Appliances" means crutches, artificial aids and other similar devices.

(j) "Beneficiaries" means the dependent spouse until he/she remarries and dependent children, who are the primary beneficiaries. In their absence, the dependent parents and subject to the restrictions imposed on dependent children, the illegitimate children and legitimate descendants, who are the secondary beneficiaries: Provided, That the dependent acknowledged natural child shall be considered as a primary beneficiary when there are no other dependent children who are qualified and eligible for monthly income benefit. (k) "Injury" means any harmful change in the human organism from any accident arising out of and in the course of the employment. (l) "Sickness" means 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. For this purpose, the Commission is empowered to determine and approve occupational diseases and work-related illnesses that may be considered compensable based on peculiar hazards of employment. (m) "Death" means loss of life resulting from injury or sickness. (n) "Disability" means loss or impairment of a physical or mental function resulting from injury or sickness. (o) "Compensation" means all payments made under this Title for income benefits and medical or related benefits. (p) "Income benefit" means all payments made under this Title to the providers of medical care, rehabilitation services and hospital care. chanroblesvirtuallawlibrary (q) "Medical benefit" means all payments made under this Title to the providers of medical care, rehabilitation services and hospital care. chanroblesvirtuallawlibrary

(t) "Supplies" means medicine and other medical, dental or surgical items. (u) "Hospital" means any medical facility, government or private, authorized by law, an active member in good standing of the Philippine Hospital Association and accredited by the Commission. (v) "Physician" means any doctor of medicine duly licensed to practice in the Philippines, an active member in good standing of the Philippine Medical Association and accredited by the Commission. (w) "Wages" or "Salary", insofar as they refer to the computation of benefits defined in Republic Act No. 1161, as amended, for SSS and Presidential Decree No. 1146, as amended, for GSIS, respectively, except that part in excess of Three Thousand Pesos. (x) "Monthly salary credit" means the wage or salary base for contributions as provided in Republic Act Numbered Eleven hundred sixty-one, as amended, or the wages or salary. (y) "Average monthly salary credit" in the case of the SSS means the result obtained by dividing the sum of the monthly salary credits in the sixty-month period immediately following the semester of death or permanent disability by sixty (60), except where the month of death or permanent disability falls within eighteen (18) calendar months from the month of coverage, in which case, it is the result obtained by dividing the sum of all monthly salary credits paid prior to the month of contingency by the total number of calendar months of coverage in the same period. chanroblesvirtuallawlibrary (z) "Average daily salary credit" in the case of the SSS means the result obtained by dividing the sum of the six (6) highest monthly salary credits in the twelve-month period immediately preceding the semester of sickness or injury by one hundred eighty (180), except where the month of injury falls within twelve (12) calendar months from the first month of coverage, in which case it is the result obtained by dividing the sum of all


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' monthly salary credits by thirty (30) times the number of calendar months of coverage in the period. In the case of the GSIS, the average daily salary credit shall be the actual daily salary or wage, or the monthly salary or wage divided by the actual number of working days of the month of contingency. (aa) "Quarter" means a period of three (3) consecutive months ending on the last days of March, June, September and December. (bb) "Semester" means a period of two consecutive quarters ending in the quarter of death, permanent disability, injury or sickness.

life insurance benefit administered by the System shall be subject to compulsory coverage. 1. Covered Employers • All employers, whether belonging to the public or private sector are covered. • Public Sector: covered by GSIS comprising the National Government, Government owned/controlled corporations, Philippine Tuberculosis society, The Philippine National Red Cross, and Philippine Veterans Bank. • Private Sector: Covered by SSS. 2. Covered Employees

(cc) "Replacement ratio" - The sum of twenty percent and the quotient obtained by dividing three hundred by the sum of three hundred forty and the average monthly salary credit.

• •

(dd) "Credited years of service" -For a member covered prior to January, 1975, nineteen hundred seventy-five minus the calendar year of coverage, plus the number of calendar years in which six or more contributions have been paid from January, 1975 up to the calendar year containing the semester prior to the contingency. For a member covered on or after January, 1975, the number of calendar years in which six or more contributions have been paid from the year of coverage up to the calendar year containing the semester prior to the contingency.

GR; All employees not over 60 years old, whether private or public. EXP:employee who is over (60) years of age and paying contributions to qualify for the retirement or life insurance benefit administered by the System shall be subject to compulsory coverage.

ART. 169. Foreign employment. - The Commission shall ensure adequate coverage of Filipino employees employed abroad, subject to regulations as it may prescribe. Working Abroad

(ee) "Monthly income benefit" means the amount equivalent to one hundred fifteen percent of the sum of the average monthly salary credit multiplied by the replacement ratio, and one and a half percent of the average monthly salary credit for each credited year of service in excess of ten years: Provided, That the monthly income benefit shall in no case be less than two hundred fifty pesos.

•

Filipinos working abroad for an employer who carries on in the Philippines any trade, business, industry are covered, and entitled to same benefits to employees working in the Philippines.

Chapter II COVERAGE AND LIABILITY ART. 168. Compulsory coverage. - Coverage in the State Insurance Fund shall be compulsory upon all employers and their employees not over sixty (60) years of age: Provided, That an employee who is over (60) years of age and paying contributions to qualify for the retirement or

ART. 170. Effective date of coverage. - Compulsory coverage of the employer during the effectivity of this Title shall take effect on the first day of his operation, and that of the employee, on the date of his employment. Effective Date of Coverage


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First day of operation but not earlier than January 1, 1975.

Art. 171. Registration. Each employer and his employees shall register with the System in accordance with its regulations. 1. Registration Procedure (Rule II of the Amended Rules on Employees’ Compensation) Section1 – Requirement a. Every employer shall register with the System by accomplishing the prescribed forms b. Every employee shall be registered with the System through his employer by accomplishing the prescribed forms Section 2 – GSIS (applicable to public sector) a. employer operating before January 1, 1975 – register not later than March 31, 1975 b. employer operating on or after January 1, 1975 – register within one month from the first day of operation Section 3 – SSS (applicable to private sector) a. employer already registered – need not register again; automatically registered b. employer not yet registered – register not later than the first day of operation c. employee already registered – need not register again; automatically registered d. employee not yet registered – register not later than the date of employment e. only one registration is needed for SSS, Medicare and Employee’s Compensation Guidelines in reporting an unregistered employee by employer a. every employee already reported need not be reported again; automatically reported b. newly hired employee – reported by his employer not later than 30 days from date of employment c. every employee shall be deemed as having been duly reported for coverage if the System has received a report or written communication about him from his employer or an EC contribution paid in his name by his employer, before a compensable contingency occurs

2. When An Employee is Deemed Reported  When the SSS or GSIS has received a report or written communication about him from his employer and Employees’ Compensation contribution paid in his name before a compensable contingency occurs 3. Effect of Failure to Report  Employer – fine (P1,000-P10,000) and/or imprisonment for duration of the violation or non-compliance or until such time that rectification of the violation has been made, at the discretion of the Court  Compensable contingency occurs after 30 days and before the System receives any report for coverage about the employee or EC contribution on his behalf – employer liable to System for the lump sum equivalent to the benefits to which he or his dependents may be entitled Art. 172. Limitation of liability. The State Insurance Fund shall be liable for compensation to the employee or his dependents, except when the disability or death was occasioned by the employee’s intoxication, willful intention to injure or kill himself or another, notorious negligence, or otherwise provided under this Title. 1. Factors That Bar Compensability a. Intoxication b. Willful intention to injure or kill himself or another c. Notorious negligence 1.1. Intoxication  Person’s condition in being under the influence of liquor or prohibited drugs to the extent that his acts, words or conduct is impaired visibly, as to prevent him from physically and mentally engaging in the duties of his employment  Degree must be such that it rendered the employee incapable of doing his work  Accident or injury must be shown by clear and convincing proof that it arose out of his drunken condition and not because of his work  Burden of proof – party who raises drunkenness as a defense 1.2. Willful Intention to Injure/Kill Himself or Another


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Deliberate intent on the part of the employee to inflict injuries to himself or another Reason – the resulting injury, disability or death was not caused by the employment but by the employee’s own voluntary act Applies only work-connected injury, disability or death

1.3. Notorious Negligence  Something more than mere or simple negligence or contributory negligence  Deliberate act of the employee to disregard his own personal safety  Failure to observe any or slight care  Tantamount to gross negligence  Must be shown by clear and convincing proof that it was the cause of the injury  Disobedience to rules, orders, and/or prohibition does not per se constitute notorious negligence, if no intention can be attributed to the injured to end his life Art. 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government. (As amended by Presidential Decree No. 1921). 1. Exclusiveness of Liability  Liability of State Insurance Fund is exclusive and in place of all other liabilities which the employer may have to the employee, his dependents or anyone entitled to receive damages in behalf of the employee or his dependents  Relieves the employer from any further obligation to directly pay compensation benefits to its employees for work-connected sickness or injury

Facts: Prior to the effectivity of the Labor Code, it had been the practice of San Miguel Corporation to grant to its salesmen and helpers suffering work-connected sickness or disability, their basic salary and other benefits, the aggregate value of which was higher than the corresponding benefits under the Workmen’s Compensation Act. When the new compensation scheme under the Labor Code took effect, San Miguel discontinued the practice. A complaint was filed against San Miguel to pay the difference in monetary benefits. Issue: Whether or not San Miguel can be compelled to pay the difference Decision: No. San Miguel cannot be compelled to pay the difference. Ratio: The Labor Code has established a new compensation scheme in place of the old scheme. The new compensation has relieved an employer from the obligation of directly paying compensation to his employees for work-connected illness or injury. 2.

Recovery Under Other Laws  Art. 173 – payment of compensation under this Title shall nor bar recovery of benefits as provided for in: o Sec. 699 of Revised Administrative Code o RA 1161, as amended o RA 610, as amended o RA 4864, as amended o Other laws whose benefits are administered by the System or by other agencies of the government  

Q: Does it mean that the employee can recover from both the Labor Code and other specified laws? A: No (Rule IV of the Amended Rules on Employees’ Compensation) SEC. 2. Exclusiveness – (a) Whenever other laws provide similar benefits for the same contingency covered by these Rules, the employee who qualifies for the benefits shall have the option to choose under which law will be paid to him. However if benefits chosen by law are less than the benefit provided under these Rules – Employees’ Compensation to pay only the difference in benefits

San Miguel Corporation vs. NLRC (164 SCRA 372) Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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' (b) The employee shall not be qualified to avail himself at the same time of similar benefits provided by different laws, except the difference in benefits 3. The Labor Code vis-à-vis The Civil Code Q: Can the injured employee avail of compensation benefits under the Labor Code and sue the employer for damages under the Civil Code? A: 3 divergent opinions by several amici curae (Floresca vs. Philex Mining Corporation) a. Injured employee (or heirs in case of death) may initiate an action for damages on the basis of negligence of the employer pursuant to the Civil Code b. The remedy of an employee for work-connected injury or accident is exclusively restricted to seeking the limited compensation provided under the Workmen’s Compensation Act c. The employee or his heirs can choose on whether to avail of the limited compensation under the Workmen’s Compensation Act or sue for higher damages under the Civil Code by reason of the employer’s negligence. (Choice is alternative, not cumulative)

Facts: Several employees of Philex Mining died when one of its mining tunnels caved in. As a result, the heirs of the employees filed for claims for workmen’s compensation. The claimants were paid in full except one who decided to be paid in installments. In the meantime, a committee was created to investigate the accident. It found out that there was criminal negligence and violation of law on the part of Philex. When the heirs found out about the report, they filed with the regular court against Philex for damages on the ground that it deliberately failed to take the required precautions for the due protection of the lives of its men working underground. Issue: Whether or not the heirs can avail cumulatively of both actions Decision: Yes. The heirs can avail cumulatively of both actions. Ratio: The case at bar is an exception to the rule that the remedies cannot be availed of cumulatively because the heirs became cognizant of the fact that Philex has been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Workmen’s Compensation Act. However, the payments received under the said act should be deducted from the damages that may be decreed in their favor.

Ysmael Maritime Corporation vs. Avelino (151 SCRA 333) 3. Facts: Rolando Lim, a licensed second mate, was on board the vessel M/S Rajah when the same ran around and sank, resulting to his death. A claim for death benefits was files by the heirs before the Workmen’s Compensation Commission, for which they were paid P4,160.00. Claiming that the death was caused by the negligence of the company, the heirs subsequently filed an action for damages before the regular courts. Issue: Whether or not the action will prosper

Distinction Between Compensation and Damages

Compensation Given to mitigate the harshness and insecurity of industrial life for the workman and his family Entitlement exists so long as death, injury or illness is work-connected regardless of negligence of employer

Damages Given in order to vindicate a wrongful invasion of a right Recoverable by one who has sustained injury either in person, property pr relative rights, through the act or default of another

Decision: No. The action will not prosper. Ratio: The heirs have already opted to avail of the compensation benefits under the Workmen’s Compensation Act Floresca vs. Philex Mining (136 SCRA 141)

Art. 174. Liability of third party/ies. a. When the disability or death is caused by circumstances creating a legal liability against a third party, the disabled employee or the dependents, in case of his death, shall be paid by the System under this Title. In case benefit is paid under this Title, the System shall be subrogated to the rights of the disabled employee or the dependents, in case of his death, in accordance with the general law.


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' b. Where the System recovers from such third party damages in excess of those paid or allowed under this Title, such excess shall be delivered to the disabled employee or other persons entitled thereto, after deducting the cost of proceedings and expenses of the System. 1. Injury or Death Caused by a Third Party Third Party  Any person who is not the employer of the injured employee  Injury or death caused by a third party is compensable if all the requisites for compensability are met, but claimant cannot receive payment twice for the same injury Art. 175. Deprivation of the benefits. Except as otherwise provided under this Title, no contract, regulation or device whatsoever shall operate to deprive the employee or his dependents of any part of the income benefits and medical or related services granted under this Title. Existing medical services being provided by the employer shall be maintained and continued to be enjoyed by their employees. 1. Benefits Under The Employees’ Compensation Law Form: a. Income b. Services Consists of: a. Medical services, appliances and supplies b. Rehabilitation services c. Permanent total disability d. Permanent partial disability e. Death f. Funeral   

The law guarantees the right to full enjoyment of compensation benefits To ensure that the employee or dependents get the full amount that he is entitled to, the law exempts compensation benefits from taxes, attachment, garnishment, levy or seizure Prohibited: o Retention or deduction of any amount from the compensation

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o Transfer of compensation benefits to another Null and void: o Any contract, regulation or device which operate to deprive the employee or his dependents of any part of the income benefits and medical or related services Chapter III ADMINISTRATION

Art. 176. Employees’ Compensation Commission. a. To initiate, rationalize, and coordinate the policies of the employees’ compensation program, the Employees’ Compensation Commission is hereby created to be composed of five ex-officio members, namely: the Secretary of Labor and Employment as Chairman, the GSIS General Manager, the SSS Administrator, the Chairman of the Philippine Medical Care Commission, and the Executive Director of the ECC Secretariat, and two appointive members, one of whom shall represent the employees and the other, the employers, to be appointed by the President of the Philippines for a term of six years. The appointive member shall have at least five years experience in workmen’s compensation or social security programs. All vacancies shall be filled for the unexpired term only. (As amended by Section 19 [c], Executive Order No. 126) b. The Vice Chairman of the Commission shall be alternated each year between the GSIS General Manager and the SSS Administrator. The presence of four members shall constitute a quorum. Each member shall receive a per diem of two hundred pesos for every meeting that is actually attended by him, exclusive of actual, ordinary and necessary travel and representation expenses. In his absence, any member may designate an official of the institution he serves on full-time basis as his representative to act in his behalf. (As amended by Section 2, Presidential Decree No. 1368) c.

The general conduct of the operations and management functions of the GSIS or SSS under this Title shall be vested in its respective chief executive officers, who shall be immediately responsible for carrying out the policies of the Commission.


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' d. The Commission shall have the status and category of a government corporation, and it is hereby deemed attached to the Department of Labor and Employment for policy coordination and guidance. (As amended by Section 2, Presidential Decree No. 1368) 1. Composition of Employee’s Compensation Commission a. Chairman – Secretary of Labor and Employment b. Ex-Officio Members – Executive Director of ECC – GSIS General Manager – SSS Administrator – Chairman of Medicare Commission c. Appointive Members – Employees’ Representative – Employers’ Representative

e. To make the necessary actuarial studies and calculations concerning the grant of constant help and income benefits for permanent disability or death and the rationalization of the benefits for permanent disability and death under the Title with benefits payable by the System for similar contingencies: Provided, That the Commission may upgrade benefits and add new ones subject to approval of the President: and Provided, further, That the actuarial stability of the State Insurance Fund shall be guaranteed: Provided, finally, That such increases in benefits shall not require any increases in contribution, except as provided for in paragraph (b) hereof; (As amended by Section 3, Presidential Decree No. 1641) f.

2. Qualification  Appointive members – at least five (5) years experience in workmen’s compensation or social security program 3. Term of Office  Appointive members – six (6) years  Vacancies – filled for unexpired term only Art. 177. Powers and duties. The Commission shall have the following powers and duties: a. To assess and fix a rate of contribution from all employers; b. To determine the rate of contribution payable by an employer whose records show a high frequency of work accidents or occupational diseases due to failure by the said employer to observe adequate safety measures; c.

To approve rules and regulations governing the processing of claims and the settlement of disputes arising therefrom as prescribed by the System;

d. To initiate policies and programs toward adequate occupational health and safety and accident prevention in the working environment, rehabilitation other than those provided for under Article 190 hereof, and other related programs and activities, and to appropriate funds therefor; (As amended by Section 3, Presidential Decree No. 1368)

To appoint the personnel of its staff, subject to civil service law and rules, but exempt from WAPCO law and regulations;

g. To adopt annually a budget of expenditures of the Commission and its staff chargeable against the State Insurance Fund: Provided, That the SSS and GSIS shall advance on a quarterly basis, the remittances of allotment of the loading fund for the Commission’s operational expenses based on its annual budget as duly approved by the Department of Budget and Management; (As amended by Section 3, Presidential Decree No. 1921) h. To have the power to administer oath and affirmation, and to issue subpoena and subpoena duces tecum in connection with any question or issue arising from appealed cases under this Title; i.

To sue and be sued in court;

j.

To acquire property, real or personal, which may be necessary or expedient for the attainment of the purposes of this Title;

k.

To enter into agreements or contracts for such services and as may be needed for the proper, efficient and stable administration of the program;

l.

To perform such other acts as it may deem appropriate for the attainment of the purposes of the Commission and proper


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' enforcement of the provisions of this Title. (As amended by Section 18, Presidential Decree No. 850) 1. Power to Approve Additional Occupational Diseases  ECC has the power to determine and approve additional occupational diseases and work-related illnesses with specific criteria based on peculiar hazards of employment Art. 178. Management of funds. All revenues collected by the System under this Title shall be deposited, invested, administered and disbursed in the same manner and under the same conditions, requirements and safeguards as provided by Republic Act Numbered eleven hundred sixtyone, as amended, with regard to such other funds as are thereunder being paid to or collected by the SSS and GSIS, respectively: Provided, That the Commission, SSS and GSIS may disburse each year not more than twelve percent of the contribution and investment earnings collected for operational expenses, including occupational health and safety programs, incidental to the carrying out of this Title. 1. Disbursement Limitation for Operational Expenses  Twelve percent (12%) of the contributions and investment earning collected Art. 179. Investment of funds. Provisions of existing laws to the contrary notwithstanding, all revenues as are not needed to meet current operational expenses under this Title shall be accumulated in a fund to be known as the State Insurance Fund, which shall be used exclusively for payment of the benefits under this Title, and no amount thereof shall be used for any other purpose. All amounts accruing to the State Insurance Fund, which is hereby established in the SSS and GSIS, respectively, shall be deposited with any authorized depository bank approved by the Commission, or invested with due and prudent regard for the liquidity needs of the System. (As amended by Section 4, Presidential Decree No. 1368) 1. The State Insurance Fund  Comprised of all revenues that are not needed to meet current operational expenses  Cannot be used for any purpose than payment of the employee’s compensation benefits

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Deposited with any authorized depositary bank approved by the Employees’ Compensation Commission or invested with due regard for the liquidity needs of the System

Art. 180. Settlement of claims. The System shall have original and exclusive jurisdiction to settle any dispute arising from this Title with respect to coverage, entitlement to benefits, collection and payment of contributions and penalties thereon, or any other matter related thereto, subject to appeal to the Commission, which shall decide appealed cases within twenty (20) working days from the submission of the evidence. 1. Original and Exclusive Jurisdiction  Disputes relating to coverage, entitlement to benefits, collection and payment of contributions and penalties thereon or any matter related thereto  GSIS – employees under the public sector  SSS – employees under the private sector 2. Appellate Jurisdiction  Employee’s Compensation Commission  Within thirty (30) calendar days from receipt of decision Art. 181. Review. Decisions, orders or resolutions of the Commission may be reviewed on certiorari by the Supreme Court on question of law upon petition of an aggrieved party within ten (10) days from notice thereof. 1. Appeal to the Supreme Court  Pure questions of law by way of appeal by certiorari under Rule 45 of the rules of Court  Within 15 days from notice of final order or resolution appealed from Art. 182. Enforcement of decisions. a. Any decision, order or resolution of the Commission shall become final and executory if no appeal is taken therefrom within ten (10) days from notice thereof. All awards granted by the Commission in cases appealed from decisions of the System shall be effected within fifteen days from receipt of notice.


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' b. In all other cases, decisions, orders and resolutions of the Commission which have become final and executory shall be enforced and executed in the same manner as decisions of the Court of First Instance, and the Commission shall have the power to issue to the city or provincial sheriff or to the sheriff whom it may appoint, such writs of execution as may be necessary for the enforcement of such decisions, orders or resolutions, and any person who shall fail or refuse to comply therewith shall, upon application by the Commission, be punished by the proper court for contempt. 1. Payment of Awards  Decisions, orders or resolutions of the ECC en banc shall be complied with by the SSS or GSIS within fifteen (15) days from receipt

portion thereof from the wages or salaries of the employees shall be null and void. d. When a covered employee dies, becomes disabled or is separated from employment, his employer’s obligation to pay the monthly contribution arising from that employment shall cease at the end of the month of contingency and during such months that he is not receiving wages or salary. 1. Payment of Premium Contributions – Sole Obligation of Employer  Payment of premium contributions for employees’ compensation – sole obligation of employer  Any contract or device for the deduction of any portion thereof from the wages of the employee – null and void  Contributions – non-refundable

2. Enforcement of Other Decisions  Same manner as decisions of the RTC  Employees’ Compensation Commission (ECC) o Power to issue to the City or Provincial Sheriff or to the Sheriff it may appoint, such writs of execution as may be necessary for the enforcement of such decisions, orders or resolutions

2. Effect of Death or Separation from Employment  Employer’s obligation to pay the monthly contribution ceases in the last day of the month of contingency

Chapter IV CONTRIBUTIONS

Art. 184. Government guarantee. The Republic of the Philippines guarantees the benefits prescribed under this Title, and accepts general responsibility for the solvency of the State Insurance Fund. In case of any deficiency, the same shall be covered by supplemental appropriations from the national government.

Art. 183. Employers’ contributions. a. Under such regulations as the System may prescribe, beginning as of the last day of the month when an employee’s compulsory coverage takes effect and every month thereafter during his employment, his employer shall prepare to remit to the System a contribution equivalent to one percent of his monthly salary credit. b. The rate of contribution shall be reviewed periodically and subject to the limitations herein provided, may be revised as the experience in risk, cost of administration and actual or anticipated as well as unexpected losses, may require. c.

Contributions under this Title shall be paid in their entirety by the employer and any contract or device for the deductions of any

3. Effect of Disability  Employer’s obligation suspended during the months that he is not receiving salary or wages

1. Purpose of the Law  Assure that the employee is paid the benefits due him if the State Insurance Fund runs out of money Chapter V MEDICAL BENEFITS Art. 185. Medical services. Immediately after an employee contracts sickness or sustains an injury, he shall be provided by the System during the subsequent period of his disability with such medical services and appliances as the nature of his sickness or injury and progress of his


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' recovery may require, subject to the expense limitation prescribed by the Commission. 1. Scope of Medical Services a. Ward services during confinement in an accredited hospital b. Subsequent domiciliary care by an accredited physician c. Medicines d. Ambulatory services in an accredited hospital, in case of injury 2. Condition for Entitlement a. Employee should have duly reported to the SSS or GSIS b. He sustains an injury or contracts sickness c. The System has been duly notified of the injury or sickness 3. Period of Entitlement  Beginning with the first day of injury or sickness, during the subsequent period of his disability, and as the progress of his recovery may require, subject to the periodic submission of a medical report on his disability certified by his physicians 4.

5.

Meaning of Ward Services  Ward – hospital room that can accommodate six (6) or more patients  Covers all of the services an in-patient would ordinarily receive in a hospital, such as: a. Bed in a ward (6 beds/room) b. All meals, including special diets c. Regular nursing services d. Medicines furnished by the hospital e. Laboratory services such as blood and urine tests f. Radiology services such as x-rays g. Medical supplies such as splints and casts h. Use of appliances and equipment furnished by the hospital, such as wheelchairs, crutches and braces i. Anesthetic services j. Operating room charges k. Surgery l. Doctor’s services Not Included in Ward Services a. Extra charge for more comfortable accommodation e.g. private and semi-private rooms

b. Personal comfort or convenience e.g. charges for the use of a telephone, radio or television c. Private duty nurse 6.

Medicines  Provided by the hospital at a cost not exceeding the retail prices prevailing in local drugstores

7.

Payment  Made directly to the providers of the medical services in such amount as are prevailing in the community for similar services or as provided for in the Rules, whichever is less

Art. 186. Liability. The System shall have the authority to choose or order a change of physician, hospital or rehabilitation facility for the employee, and shall not be liable for compensation for any aggravation of the employee’s injury or sickness resulting from unauthorized changes by the employee of medical services, appliances, supplies, hospitals, rehabilitation facilities or physicians. 1. Change of Medical services  Should be approved by the SSS or GSIS, otherwise, System cannot be held liable for compensation for any aggravation of the injury or sickness resulting from any unauthorized changes Art. 187. Attending physician. Any physician attending an injured or sick employee shall comply with all the regulations of the System and submit reports in prescribed forms at such time as may be required concerning his condition or treatment. All medical information relevant to the particular injury or sickness shall, on demand, be made available to the employee or the System. No information developed in connection with treatment or examination for which compensation is sought shall be considered as privileged communication. 1. Obligations of Attending Physician a. Comply with all the regulations of the SSS or the GSIS b. Submit medical reports using the prescribed form 2. Medical Information Not Privileged Communication  Employees’ compensation cases


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Art. 187 – “No information developed in connection with treatment or examination for which compensation is sought shall be considered as privileged communication”

Art. 188. Refusal of examination or treatment. If the employee unreasonably refuses to submit to medical examination or treatment, the System shall stop the payment of further compensation during such time as such refusal continues. What constitutes an unreasonable refusal shall be determined by the System which may, on its own initiative, determine the necessity, character and sufficiency of any medical services furnished or to be furnished. 1. Suspension of Compensation Payments  Refusal of an employee to submit to medical examination or treatment should be unreasonable  “unreasonable refusal” – matter to be determined by SSS or GSIS Art. 189. Fees and other charges. All fees and other charges for hospital services, medical care and appliances, including professional fees, shall not be higher than those prevailing in wards of hospitals for similar services to injured or sick persons in general and shall be subject to the regulations of the Commission. Professional fees shall only be appreciably higher than those prescribed under Republic Act Numbered sixty-one hundred eleven, as amended, otherwise known as the Philippine Medical Care Act of 1969. 1. Fees and Charges FOR HOSPITAL CONFINEMENT  Injury – benefit not to exceed actual cost of ward services in an accredited hospital  Sickness – benefit not to exceed the actual cost of ward in an accredited hospital equipped with facilities necessary for the treatment of the disease FOR DOMICILIARY CARE  Benefit not to exceed P50.00 for the first visit and P50.00 for each subsequent visit FOR AMBULATORY SERVICES

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Benefit not to exceed P60.00/day exclusive of drugs and medicines

FOR SURGICAL SERVICES  Surgical expense benefit 1. Surgeon’s fee according to the ECC Relative Value Study 2. Anesthesiologist’s fee ordinarily not exceeding 25% of the surgeon’s fee 3. Operating fee ordinarily not exceeding 25% of the surgeon’s fee  Surgeon’s fee – paid to surgeon who performed the operation; anesthesiologist’s fee – anesthesiologist; conditions: 1. Only one surgeon paid per operation 2. Only one anesthesiologist, if any, paid per operation 3. Local anesthesia, other than regional nerve block anesthesia shall not be compensable  Operating room fee – paid by SSS or GSIS only for surgical procedure done in the operating-diagnostic-therapeutic room complex of the accredited hospital Art. 190. Rehabilitation services. a. The System shall, as soon as practicable, establish a continuing program, for the rehabilitation of injured and handicapped employees who shall be entitled to rehabilitation services, which shall consist of medical, surgical or hospital treatment, including appliances if they have been handicapped by the injury, to help them become physically independent. b. As soon as practicable, the System shall establish centers equipped and staffed to provide a balanced program of remedial treatment, vocational assessment and preparation designed to meet the individual needs of each handicapped employee to restore him to suitable employment, including assistance as may be within its resources, to help each rehabilitee to develop his mental, vocational or social potential. 1. Meaning of Rehabilitation  Process by which there is provided a balanced program of remedial treatment, vocational assessment, and preparation designed to meet the individual needs of each handicapped employee to restore him to suitable employment, including


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' assistance as may be within its resources to help each rehabilitee to develop his mental, vocational, or social potential 2. Conditions for Rehabilitation a. Employee has been reported to the SSS or GSIS b. He sustains a permanent disability as a result of a compensable injury or sickness c. He has to been placed in suitable employment 3. Period of Entitlement  Period of disability unless suspended or terminated under any of the following grounds: a. Upon suitable employment b. Upon suspension or termination of such services by the Rehabilitation Center by self-termination c. By self-termination 4. Extent of Services a. Medical-surgical management b. Hospitalization c. Necessary appliances and supplies d. Vocational training e. Assistance for placement  Transportation allowance between place of residence and the rehabilitation facility, lunch, and dormitory allowance in appropriate cases may be included in the extent of services 5. Limitations  System not legally responsible when the injury, sickness, disability, or death during the rehabilitation is occasioned by any of the following: a. Intoxication b. Willful intention to injure or kill himself or another c. Notorious negligence Chapter VI DISABILITY BENEFITS Art. 191. Temporary total disability. a. Under such regulations as the Commission may approve, any employee under this Title who sustains an injury or contracts sickness resulting in temporary total disability shall, for each day

of such a disability or fraction thereof, be paid by the System an income benefit equivalent to ninety percent of his average daily salary credit, subject to the following conditions: the daily income benefit shall not be less than Ten Pesos nor more than Ninety Pesos, nor paid for a continuous period longer than one hundred twenty days, except as otherwise provided for in the Rules, and the System shall be notified of the injury or sickness. (As amended by Section 2, Executive Order No. 179) b. The payment of such income benefit shall be in accordance with the regulations of the Commission. (As amended by Section 19, Presidential Decree No. 850) 1. Meaning of Temporary Total Disability  Healing time, or that period of time in which the claimant employee, by reason of the injury or sickness, is unable to perform any kind of labor  Situations: a. 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 b. The injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from the onset of disability  Disablement of a employee to earn wages in the same kind of work of similar nature, that he was trained for and accustomed to perform, or any kind of work which a person of his mentality and attachment could do  Disability – understood on the loss of earning capacity o Reason: it is not the injury that is compensated but the incapacity to work resulting in the impairment of one’s earning capacity 2. Conditions for Entitlement to Temporary Total Disability a. Employee duly has been reported to SSS or GSIS b. He sustains temporary total disability as a result of the injury or sickness c. SSS or GSIS has been duly notified of the injury or sickness which caused his disability 3. Purpose of the Law  To compensate the employee for what he might have earned during the period of treatment


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' 4. Period for Entitlement  Maximum of 120 days  Exception – injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability

2. Complete loss of sight of both eyes;

5. Relapse of Illness  Considered independent of and separate from the period covered by the original disability in the computation of his income benefit for temporary total disability

5. Brain injury resulting in incurable imbecility or insanity; and

6. Suspension of Income Benefit  Failure of employee to submit to the SSS or GSIS a monthly medical report on his disability certified by his attending physician Art. 192. Permanent total disability. a. Under such regulations as the Commission may approve, any employee under this Title who contracts sickness or sustains an injury resulting in his permanent total disability shall, for each month until his death, be paid by the System during such a disability, an amount equivalent to the monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution: Provided, That the monthly income benefit shall be the new amount of the monthly benefit for all covered pensioners, effective upon approval of this Decree. b. The monthly income benefit shall be guaranteed for five years, and shall be suspended if the employee is gainfully employed, or recovers from his permanent total disability, or fails to present himself for examination at least once a year upon notice by the System, except as otherwise provided for in other laws, decrees, orders or Letters of Instructions. (As amended by Section 5, Presidential Decree No. 1641) c.

The following disabilities shall be deemed total and permanent: 1. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules;

3. Loss of two limbs at or above the ankle or wrist; 4. Permanent complete paralysis of two limbs;

6. Such cases as determined by the Medical Director of the System and approved by the Commission. d. The number of months of paid coverage shall be defined and approximated by a formula to be approved by the Commission. 1. Meaning of Permanent Total Disability  Disablement of an employee to earn wages because of: a. Temporary total disabilities lasting continuously for more than 120 days (except when the disability not exceeding 240 days is declared as temporary total disability) regardless of whether or not he loses the use of any part of his body b. Complete loss of sight of both eyes c. Loss of two limbs at or above the ankle or wrist d. Permanent complete paralysis of two limbs e. Brain injury resulting in incurable imbecility or insanity f. Such cases as determined by the SSS or GSIS and approved by the ECC 

A person’s disability might not emerge at one precise moment in time but rather over a period of time

Vicente vs. Employees’ Compensation Commission (193 SCRA 190) Facts: Vicente was formerly employed as a nursing attendant at the Veteran Memorial Medical Center. On August 5, 1981, at the age of forty-five (45), and having rendered more than twenty-five (25) years of government service, he applied for optional retirement effective August 16, 1981, giving as reason therefor his inability to continue working as a result of his partial disability. He likewise filed with the GSIS a claim for permanent total disability with supporting Medical Certificate attesting


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' that he was suffering from “Osteoarthritis, multiple; Hypertensive Cardiovascular Disease; Cardiomegaly; and Left Ventricular Hypertrophy.” The GSIS granted the claim but only for permanent partial disability Issue: Whether or not Vicente suffers from permanent total disability Decision: Yes. Vicente suffers from permanent total disability. Ratio: Considering that Vicente was only 45 years old when he retired and still entitled, under good behavior, to 20 more years in service, the approval of his optional retirement proves that he was no longer fit to continue in his employment for optional retirement is allowed only upon proof that the employee is already physically incapacitated to render sound and efficient service. Further, the physicians of Veteran’s Memorial Medical Center categorically certified that he was under permanent total disability.

ARTICLE. 193. Permanent partial disability. – (a) Under such regulations as the Commission may approve, any employee under this Title who contracts sickness or sustains an injury resulting in permanent partial disability shall, for each month not exceeding the period designated herein, be paid by the System during such a disability an income benefit for permanent total disability. (b) The benefit shall be paid for not more than the period designated in the following schedules: Complete and permanent No. of Months loss of the use of One thumb – 10 One index finger – 8 One middle finger – 6 One ring finger – 5 One little finger – 3 One big toe – 6 One toe – 3 One arm – 50 One hand – 39 One foot – 31

One leg – 46 One ear – 10 Both ears – 20 Hearing of one ear – 10 Hearing of both ears – 50 Sight of one eye – 25 (c) A loss of a wrist shall be considered as a loss of the hand, and a loss of an elbow shall be considered as a loss of the arm. A loss of an ankle shall be considered as loss of a foot, and a loss of a knee shall be considered as a loss of the leg. A loss of more than one joint shall be considered as a loss of one-half of the whole finger or toe: Provided, That such a loss shall be either the functional loss of the use or physical loss of the member. (As amended by Section 7, Presidential Decree No. 1368). (d) In case of permanent partial disability less than the total loss of the member specified in the preceding paragraph, the same monthly income benefit shall be paid for a portion of the period established for the total loss of the member in accordance with the proportion that the pARTICLEial loss bears to the total loss. If the result is a decimal fraction, the same shall be rounded off to the next higher integer. (e) In cases of simultaneous loss of more than one member or a part thereof as specified in this Article, the same monthly income benefit shall be paid for a period equivalent to the sum of the periods established for the loss of the member or the part thereof. If the result is a decimal fraction, the same shall be rounded off to the next higher integer. (f) In cases of injuries or illnesses resulting in a permanent partial disability not listed in the preceding schedule, the benefit shall be an income benefit equivalent to the percentage of the permanent loss of the capacity to work. (As added by Section 7, Presidential Decree No. 1368). (g) Under such regulations as the Commission may approve, the income benefit payable in case of permanent partial disability may be paid in monthly pension or in lump sum if the period covered does not exceed one year. (As added by Section 7, Presidential Decree No. 1368).


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•

Permanent partial disability – one where as a result of injury or sickness, the employee suffers a lasting partial loss of the use of any part of his body. Conditions to entitlement of permanent partial disability benefits: a. Te employee should have been reported to the SSS or the GSIS b. He sustains permanent partial disability as a result of injury or sickness c. The SSS or GSIS has been duly notified of the injury or sickness which caused his disability.

• •

Entitlement exists even if the employee is gainfully employed and receiving his wages or salary Period of entitlement: beginning with the first month of such disability but not longer than the designed number of months in the ff schedule: Complete AND permanent loss of the use of 1 thumb 1 index finger 1 middle finger 1 ring finger 1 little finger 1 big toe Any toe 1 arm 1 hand 1 foot 1 leg 1 ear Both ears Hearing in 1 ear Hearing in both ears Sight of the 1 eye

No. of months 10 8 6 5 3 6 3 50 39 31 46 10 20 10 50 25

Chapter VII DEATH BENEFITS ARTICLE. 194. Death. - (a) Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries upon the death of the covered employee under this Title, an amount equivalent to his monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution, except as provided for in paragraph (j) of Article 167 hereof: Provided, however, That the monthly income benefit shall be guaranteed for five years: Provided, further, That if he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly income benefit but not to exceed sixty months: Provided, finally, That the minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921). (b) Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries upon the death of a covered employee who is under permanent total disability under this Title, eighty percent of the monthly income benefit and his dependents to the dependents pension: Provided, That the marriage must have been validly subsisting at the time of disability: Provided, further, That if he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly pension excluding the dependents pension, of the remaining balance of the five-year guaranteed period: Provided, finally, That the minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921). (c) The monthly income benefit provided herein shall be the new amount of the monthly income benefit for the surviving beneficiaries upon the approval of this decree. (As amended by Section 8, Presidential Decree No. 1368). (d) Funeral benefit. – A funeral benefit of Three thousand pesos (P3,000.00) shall be paid upon the death of a covered employee or permanently totally disabled pensioner. (As amended by Section 3, Executive Order No. 179). •

Only the primary beneficiaries are entitled to the death benefits. In the absence of primary beneficiaries, the secondary beneficiaries are entitled thereto. If the deceased employee has


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•

no primary or secondary beneficiaries at the time of death, the benefit shall accrue to the Employees’ Compensation Fund. Primary beneficiaries:

d. The covered employee’s recurrent commission of physical violence, or grossly abusive conduct against thru surviving spouse or common child of the spouse e. The covered employee’s infliction of physical violence or imposition of moral duress to compel the surviving spouse, common child of the spouse to change their religious or political affiliation f. Attempt of the covered employee to corrupt or induce the surviving spouse or common child of the spouse to engage in prostitution, or to make them connive with the employee in such an act of corruption or inducement g. Drug addiction or habitual alcoholism of the covered employee h. Lesbianism or homosexuality of the covered employee i. Contraction of bigamous marriage by the covered employee, whether in the Philippines or abroad j. Sexual infidelity or perversion of the covered employee k. The covered employee’s act of allowing the surviving spouse or common child to be subjected to acts of lasciviousness; and l. The covered employee’s act of contraction of serious STD extramaritally

a. The legitimate spouse living with the employee at the time of the employee’s death, until he or she remarries; and b. The legitimate, legitimated or legally adopted the children who are: a. Unmarried b. Not gainfully employed c. Not over 21 y/o; or if over 21 y/o, he is incapable of selfsupport due to physical or mental defect which is congenital or acquired during minority •

Secondary beneficiaries: a. The legitimate parents wholly dependent upon the employee for support; b. The legitimate descendants and illegitimate children who are: a. Unmarried b. Not gainfully employed c. Not over 21 y/o; or if over 21 y/o, he is incapable of selfsupport due to physical or mental defect which is congenital or acquired during minority

•

•

General rule: the surviving spouse is entitled to the death benefit only if he or she is living with the deceased employee at the time of death Exceptions: a. Refusal of the covered employee to continue living with the surviving spouse; or the employee’s abandonment of the said spouse without justifiable or valid cause b. Attempt on the part of the covered employee against the life of the surviving spouse or common child of the spouse c. Commission of an act of sexual abuse against the surviving spouse, common child of the spouse by the covered employee

•

Conditions for entitlement to death benefits: a. The employee had been duly reported to the SSS or GSIS b. He died as a result of injury or sickness c. The SSS or GSIS has been duly notified of his death, as well as the injury or sickness which caused his death

•

If the employee has been receiving monthly income benefit for permanent total disability at the time of his death, the surviving spouse must shoe that the marriage has been validly subsisting at the time of his disability

•

Period of entitlement: a.

Primary beneficiaries: Income benefit shall start at the month of death and shall continue to be paid for as long as the beneficiaries are entitled thereto. - Monthly income benefit – not less than 15k


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Thereafter, the beneficiaries shall be paid the monthly income benefit for as long as they are entitled thereto.

b. Secondary beneficiaries: - Payable in monthly pension - Shall not exceed the period of 60 months - Shall not be less than 60k •

•

If one is declared presumptively dead after he had been reported missing for some time, payment of death benefits shall be reckoned form the date he was declared presumptively dead by proper authority in accordance with law, except when the declaration of death specifies another date, in which case, payment of death benefits shall start from the latter date.

b.

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•

ARTICLE. 195. Relationship and dependency. – All questions of relationship and dependency shall be determined as of the time of death. Meaning dependent: a. The legitimate, legitimated or legally adopted acknowledged natural child) the children who are:

Primary beneficiaries - Equivalent to the monthly income benefit for permanent total disability - Guaranteed for 5 yrs - Plus 10% for each dependent child not exceeding beginning with the youngest and without substitution - Minimum, not less than 15k - If the employee has been receiving income benefits for permanent total disability at the time of his death, equivalent to 80% plus the dependent’s pension equivalent to 10% for every dependent child but not exceeding 5 counted from the youngest and without substitution Secondary beneficiaries - 60 times the monthly income benefit of a primary beneficiary - Not exceeding 15k - Payable in monthly pension - If the employee has been receiving income benefits for permanent total disability at the time of his death, shall be paid monthly pension, excluding the dependent’s pension of the remaining balance of the 5-yr guaranteed period

Beneficiaries are still entitled to the funeral benefits of a missing person Chapter VIII PROVISIONS COMMON TO INCOME BENEFITS

•

Amount of death benefit: a.

a. Surviving spouse b. Legitimate child who spent for the funeral expenses c. Any other person who can show incontrovertible proof that he shouldered the funeral expenses

a. Unmarried b. Not gainfully employed c. Not over 21 y/o; or if over 21 y/o, he is incapable of self-support due to physical or mental defect which is congenital or acquired during minority c. d.

•

the legitimate spouse living with the employee the parents of said employee wholly dependent upon him for regular support

all questions of relationship and dependency shall be determined as of the time of death

ART. 196. Delinquent Contributions Liabilities of Delinquent Employer Employer who is delinquent in his contributions will be liable to Social Security System or Government Service Insurance System for: a. Benefits which may have been paid to his employee or their dependents

Funeral benefit (3k) shall be paid to 1 of the ff: Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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(or


' b. 3% penalty per month from the date the contribution falls due until paid c. Fine of not less than P1k nor more than P10k and/or imprisonment for the duration of the violation or noncompliance or until such time that a rectification of the violation has been made, at the discretion of the court. Payment by the employer of the lump sum equivalent to his liability shall absolve him from payment of the delinquent contributions due and payable during the calendar year of the contingency and the penalty thereon with respect to the employee concerned; but said employer shall still be subject to criminal liability. ART. 197. Second Injuries Compensability of Second Injuries * Second injury resulting in disability which may suffered by an employee under permanent partial disability, is compensable. * If the second injury is greater, the State Insurance Fund shall be liable for the income benefit of the new disability. * If the second injury is related to the previous, the liability is only for the difference in income benefits. ART. 198. Assignment of Benefits Restrictions on Compensation Benefits * Non-transferable * Not subject to tax * Not subject to execution, attachment, garnishment, levy, or seizure, except in payment of a debt to the system. ART. 199. Earned Benefits Accrued Employee Benefits Separate and Distinct From Compensation Benefits * Accrued benefits under a CBA, company policy, or employment contract, (such as vacation leave pay or sick leave pay), are separate and distinct from compensation benefits.

*

They may be enjoyed simultaneously with compensation benefits. Effect of Gainful Employment on the Right to Compensation * Permanent total disability compensation shall be suspended if the employee obtains gainful employment. * In Permanent partial disability compensation, the employee shall continue to receive compensation even if gainfully employed. ART. 200. Safety Devices Penalty for Failure to Install Safety Devices * Death and injury caused by failure to install and maintain safety devices shall hold the employer liable to pay the State Insurance Fund a penalty of 25% of the lump sum equivalent of the income benefit due the employee concerned. ART. 201. Prescriptive Period Period to File Claims for Compensation * Should be filed within 3 years from the time the cause of action accrued, otherwise, it will be barred by prescription * Prescriptive period should be reckoned not from the occurrence of the injury or illness but from the time the employee lost his earning capacity. * The reason is because in disability compensation, it is not the injury or illness that is compensated, but the incapacity to work resulting in the impairment of one’s earning capacity. ECC vs. SANICO * Sanico was suffering from pulmonary tuberculosis. He was subsequently separated from employment and he filed a claim for compensation benefits. ECC denied the claim on the ground that it was filed beyond prescriptive period. Court held that the claim has not prescribed. Period reckons not from the date the illness first became manifest but from the time the employee lost his earning capacity. ART. 202. Erroneous Payment


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' * Effect of Erroneous Payment * The SSS or GSIS is discharged from liability if it pays income benefits in good faith: a. To a dependent who is inferior in right to another dependent. b. To a dependent with whom another dependent is entitled to share such payment. * SSS or GSIS will be deemed in good faith if, prior to payment, it does not receive any notice from the dependent who is entitled to the compensation benefit. ART. 203. Prohibition Prohibited Activities * This article prohibits any person who assists in the filing of employees compensation claims from: a. Demanding or charging service fees b. Deducting any amount from the compensation benefits in payment of his services. Reason for the Law * To free the award from any liability or charge so that the claimant may enjoy it to the fullest. * It is the claimant who is exempt from liability for attorney’s fees, but not the defaulting employer who unjustly refuses to recognize the validity of the claim. Attorney’s Fees May be Awarded * Attorney’s fees may be awarded as an item separate and distinct from the compensation benefits. * Fairness dictates that the counsel should receive compensation for his services, otherwise, it would be entirely difficult for claimants, majority of whom are not learned in the intricacies of law, to get good-legal service. ART. 204. Exemption From Levy, Tax, etc. Reason for the Law

To preserve the integrity of the State Insurance Fund thereby assuring every claimant payment of whatever is due him.

CHAPTER IX RECORDS, REPORTS, AND PENAL PROVISIONS ART. 205. Record of Death or Disability Employer’s Logbook * Every employer is required to keep a logbook to record chronologically the sickness, injury or death of his employees within 5 days from notice or knowledge. * If the employer fails to record the sickness, injury or death of his employees, he shall be liable for 50 percent of the lump sum equivalent of the income benefit to which the employee may be found to be entitled. ART. 206. Notice of Sickness, Injury, or Death Actual Knowledge is Equivalent to Notice * The notice required herein is no longer necessary if the sickness, injury, or death is known to the employer, his agents, or representatives. ART. 207. Penal Provisions Aggravating Circumstances * A heavier penalty is imposed if the offense is committed by: a. Any person who has been or is employed by the ECC, SSS, or GSIS b. A lawyer, physician or any other professional c. Any official, employee, or personnel of the ECC, SSS, GSIS or any government agency. ART. 208. Applicability Effectivity of the New Compensation Law


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Provisions of the Labor Code on Employees’ Compensation took effect on January 1, 1975

*

It merely requires employers to extend assistance in the establishment and operation of adult education programs for employees.

ART. 208-A. Repeal Laws Repealed * The Labor Code provisions on employees’ compensation repealed: a. Act No. 1874 – Employer’s Liability Act b. Act No. 3428 – Workmen’s Compensation Act TITLE III MEDICARE ART. 209. Medical Care The National Health Insurance Program * The Philippine Medical Care Plan under the Revised Philippine Medical Care Act has been superseded by the National Health Insurance Program created by the National Health Insurance Act of 1995. * Aims to provide health insurance coverage and ensure affordable, acceptable, available and accessible health care services for all citizens of the Philippines * Serves as a means for the healthy to help pay for the care of the sick and those who can afford medical care to subsidize those who cannot. * Shall initially consist of programs I and II of Medicare and expand progressively to constitute one universal health insurance program for the entire population. * Administered by the Philippine Health Insurance Corporation. TITLE IV ADULT EDUCATION ART. 210. Adult Education Adult Education Program * This article does not impose upon employers the obligation to establish an adult education program. Allenna!Bocalan!*!Amor!Venenoso!*!Kyle!Fucoy!*!Rica!Casiquin!*!Roselle!Jimeno!*!Sam!Santos'

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BOOK 6 POST EMPLOYMENT TERMINATION OF EMPLOYMENT Art. 278. Coverage – The provisions of the this Title shall apply to all establishments or undertakings, whether for profit or not. Art. 279. Security of Tenure Construed – secu of tenure – refers to regular employment and as a meaning that the employer shall not terminate the services of an EE except for a just or authorized cause. 6 Act of social justice 6 Intended to protect an employee against any arbitrary and unjust deprivation of his job Coverage 6 Project EEs, Seasonal EEs or fixed term EEs 6 Probationary employees 6 Managerial EEs – subject to stricter norm of discipline 6 Casual EEs – have rendered at least one year of service are accorded with ST Extent of the Right 6 ST protects an EE not only against arbitrary or unjust dismissal, but also against other personnel actions which are calculated to force an EE to give up his employment without valid reason. Limitations 6 Not use to deprive an ER of its prerogatives. Managerial Prerogatives - inherent in the management of an enterprise - acts by which one directing a business is able to control the variables thereof so as to enhance the chances of making profit. - belongs to the ER - includes hiring, work assignment, working methods, time, place and manner of work, tools to be used, processes to be followed, supervison of workers, working regulations, transfer of EEs, work supervision, lay-off of workers, discipline, dismissal and recall of work. - NLRC or LA – not authorize to interfere with or substitute their judgment for that the ER in the conduct of his business. - but it is within their power to inquire on whether or not the exercise of managerial prerogatives tainted with bad faith or grave abuse of discretion. A. Prerogative to Choose Whom to Hire o privilege of management because such right inheres in the conduct and operation of the business by the ER. o has the right that to set or fix probationary period in order to test and observe the conduct of the EE before hiring him permanently. B. Prerogative to Promote EEs

-promotion – advancement from one position to another with an increase in duties and responsibilities and usually accompanied by an increase in salary. “usually” – not all promotions may be accompanied by a corresponding salary increase, notwithstanding the increase in duties and responsibilities of the EE. 6 Promotion to supervisory, managerial or executive positions rests upon the discretion of management o Such offices can ONLY be held by persons who have the trust of the corporation and its officers. 6 ER – has the right to choose whom to promote: EE has the right to decline a promotion. 6 No law that compels an EE to accept a promotion, since promotion is in the nature of a gift or reward which a person has the right to refuse. C. Prerogative to Transfer EEs Transfer – movement of an EE from one position to another position of equivalent rank, level or salary, without break in service. 6 If the EE refuses to be transferred, the ER could be validly dismiss him on the ground of insubordination or willful disobedience. Limitations: 6 Cannot be used as a sanction for union activities 6 Cannot be used as a pretext to get rid of an unwanted EE 6 Cannot be used as a subterfuge for demotion D. Prerogative to reduce Personnel for Economic Reasons - i.e., installation of labor-saving devices, redundancy, retrenchment to prevent losses. - based on the principle that an ER cannot be compelled to give employment to a greater number of persons than the economic operations of his business requires. E. Prerogative to Reduce Working Hours/Days F. Prerogative to Change Working Hours - whenever the exigencies of the service so require, - so long as exercised in GF for the advancement of the ERs interest and not for the purpose of defeating or circumventing the rights of the EEs under special laws or under valid agreements, the exercise of such right should be upheld. G. Prerogative to Abolish a Department or Sections - must be done in GF H. Prerogative to reorganize and abolish positions - springs from the right of an EE to conduct its own business affairs to achieve its purposes. - reorganization often results in the abolition of positions and the creation of new ones. - if achieved, affected EEs cannot validly insist in their old positions and ranking because that would render the organization ineffectual. I. Prerogative to Spin-Off a Portion of its Business - San Miguel corp EEs Union vs Confesor Palmiery/laborreview/atty.ungos4book/notes66666Page414of4114

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 J. Prerogative to Close Down its Business - GR: state should not interfere with the management’s decision to close down its business - right to close down the entire estab carries with it the right to close a part of thereof. K. Prerogative to transfer Business Ownership - Management prerogative to adopt economic policies or make some changes or adjustments in their organization or operations that would insure profit to itself or protect the investment of its stockholders. - ER may merge or consolidate its business with another or sell or dispose all or substantially all of its assets and properties even if it may bring about the dismissal or termination of its EEs in the process. - Labor contract : not enforceable against a transferee/buyer of a business enterprise, labor contracts being in personam does not create real right over 3rd parties  NO law which requires that the buyer/transferee of the assets of a going concern absorb the EEs of the seller/transferor. o If Bad faith – the liability should be shared by the transferor and transferee

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L. Prerogative to Discipline EEs - without discipline, success of any business enterprise would be impossible to achieve - cannot be nullified by arguing that the ER is the accuser, prosecutor, and judge at the same time. 

Disciplinary penalties o Warning – disciplinary penalty usually imposed for first offenders who commit a minor offense. It is a caution for the erring EE to refrain from committing the same offense in the future under pain of a more severe penalty. o Reprimand – more severe than warning in the sense that it is accompanied by censure, rebuke or sharp scolding o Suspension – temporary separation of an EE from service. This is usually imposed for less serious offenses or for minor offenses that lighter sanctions failed to rectify. o Demotion – transfer of an EE to a lower rank or position with corresponding reduction in salary  Should be imposed only for a just cause and after the procedural requirements of due process shall have been observed o Dismissal – highest penalty that can be imposed against an erring EE. It severs employment ties and could well be the economic death sentence of an EE. EE cannot be dismissed except for the most serious causes.

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Stems from the principle that an ER cannot be compelled to continue with the employment of a person guilty of malfeasance or misfeasance towards his ER and whose continuance in the service is patently inimical to his interest.

Determination of appropriate penalty o Depends upon the surrounding circumstances o Factors to be considered:  Nature of the offense  Position of the EE  Degree of damage  Past record of the EE  Length of service • Longer an EE in the service, the greater is his responsibility for knowledge and compliance with the norms of conduct and the code of discipline of the ER. Illegal Dismissal o Refers to termination of employment that is expressly prohibited by law:  Dismissal of an EE who has filed a complaint or instituted a proceeding under Title II of the LC or has testified or is about to testify in such proceedings  Dismiss a female EE for the purpose of preventing her from enjoying the benefits granted by the LC  Dismiss a female EE on account of her pregnancy, or while on leave due to her pregnancy  Dismiss an EE upon returning to her work for fear that she may again be pregnant  Dismiss an EE for having given or being about to give testimony under the LC  Dsmiss an EE who has called upon by the State to fulfill a military or civic duty during the fulfillment of such duty Unjust dismissal o If the services of an EE are terminated without the just cause specified in Art. 282 of the LC o Illegal dismissal INCLUDES unjust dismissal  Dismissal for minor or unimportant infractions  Dismissal for filing of a complaint for violation of the min. wage law.  Dismissal for an offense instigated by the ER  Dismissal due to the union activities of the EEs brother  Dismissal due to union activities  Dismissal for soliciting signatures to form a union  Dismissal for refusing to join the union favored by the employer Palmiery/laborreview/atty.ungos4book/notes66666Page424of4114

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Remedy for Illegal or unjust dismissal o File a complaint for illegal dismissal with the LA (reg’l branch of the NLRC)  Petition for injunction is not a proper remedy because injunction is not a cause of action itself but merely a provisional remedy – an adjunct to a main suit. ( originates from “any labor dispute”) Reliefs for Unjust or Illegal Dismissal o Migrant workers  Full reimbursement f his placement fee with 12% interest per annum  Salaries for the unexpired portion of his employment contract, or 3 months salary for every year of the unexpired term, whichever is less.   o Locally employed workers  Reinstatement without loss of seniority rights and other privileges  Backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement  Moral and exemplary damages, if the dismissal was tainted with malice or bad faith or  Separation pay, under certain conditions

Reinstatement  Relief separate and distinct from backwages.  Restores the lost position • Backwages – restores the lost income  Restoration to a state from which one has been removed or separated. It is the return to the position from which he was removed.  An ER cannot be ordered to reinstate an EE to a position which he never occupied.  Reinstated EE may be required to undergo physical or medical exam to determine his fitness to work but not use as a precon for reinstatement Reinstatement “Without Loss of Seniority Rights” o Means upon reinstatement, the EE is to be treated in matters involving rank, position, and continuity of employment as though he has not been absent from work.

Dismissed EE should be given a substantially equivalent position  Otherwise, the EE is entitled to separation pay equivalent to at least 0ne month salary for every year of service plus backwages, if warranted. • (if ER has closed down its business, undertook retrenchment measures or drastic reduction of personnel or considerable lapse of time has lapsed since the EEs dismissal that reinstatement is impractical)  However, if the illegally dismissed EE has retired that relief of SP is not available, he will only be entitled to backwages up to the time when he reached the retirement age plus, retirement pay.

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Propriety of Reinstatement o Available only to EEs who are unjustly dismissed or illegally dismissed.  Not proper when the EE abandoned his employment or refuse to work

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Effect of Employment Elsewhere o Still entitled to be reinstated o Cannot be expected to remain idle particularly if he has dependents looking to hi for his sustenance o Employment elsewhere is out of necessity rather than choice o Can apply in foreign country

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Circumstances that Preclude Reinstatement

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Alternative relief If Reinstatement is No Longer Possible/already filled up

GR:

As long as the dismissal is illegal, the automatic relief is REINSTATEMENT,

except: 1.

2.

3. 4.

Transfer of Business ownership a. Reason: New owner (buyer) is not obliged to absorb the EEs of the old owner (seller), unless there is an express assumption of liabilities by the new owner ER suffers business reverses a. Reason: ER cannot be compelled by an order of reinstatement to give employment to a greater number of persons than the economic operations of the business requires: ER is still liable for backwages When the position is abolished Closure of Business a. Reason: would amount to exacting from the ER compliance with the impossible Palmiery/laborreview/atty.ungos4book/notes66666Page434of4114

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5. 6.

Incapacity of the EE Attainment of retirement Age a. Reason: can no longer work after reaching the retirement age of 60 YO 7. When reinstatement is barred in conviction in criminal order a. Reason: subsequent conviction is a supervening event that rendered unjust and inequitable the reinstatement of an EE 8. Laches a. Reason: to allow the management to conduct its business and affairs, considering the dismissal and the possibility of the dismissed EE resorting to court action to vindicate his right to continue employment 9. By prescription – must be filed within 4 years from the date of dismissal 10. When the complaint merely prays for SP a. Reason: he forecloses his right to reinstatement 11. Strained relations  Applicable to reinstatement pending appeal 

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When to invoked the doctrine of Strained relations o GR: must be raised and proved before the LA, except:  Strained relations arose after the filing of the complaint  During the execution proceedings as a supervening event which would render the execution unjust and inequiatable o Should not be applied indiscriminately

Remedy for Refusal to comply with a reinstatement o not a separate action for illegal dismissal but a motion for issuance of writ of execution o if the ER still refused to comply with the reinstatement order despite the issuance of a writ of execution, the remedy is not the grant of additional backwages, but contempt proceedings o Christian Lit vs NLRC – involves refusal to comply with a reinstatement order that has become final and executor, whereas in Medina case, involves refusal to comply with a reinstatement order pending appeal

Back wages o Not the principal cause of action in an illegal dismissal case o Merely one of the reliefs extended to an EE who is unjustly dismissed. o Form of relief that restores the income that was lost by reason of unlawful dismissal  Rationale: EE whose dismissal is found to be illegal is considered as not having left his office so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.  Backwages vs Unpaid Wages • Backwages – compensation which an EE would have earned had he not been unjustly dismissed • Unpaid Wages – compensation for services already rendered but withheld by the ER

o

o

Amount of backwages that may be awarded  Art. 279 LC – EE is entitled to FULL BACKWAGES from the time his compensation was withheld up to the time of his actual reinstatement. • BUT the LA and the NLRC – have the discretion to determine how much backwages should be awarded taking into account the facts and circumstances of each case • Dismissal is unjust or illegal because the EE was dismissed: o On grounds specifically prohibited by law; (Art. 118, 137, 248 (F), 290) o Without ANY cause whatsoever, i.e., the EE has not committed an offense, or o Without JUST cause, the EE has committed an offense but the penalty of dismissal is not commensurate. Full Backwages  If the EE was dismissed on grounds specifically prohibited by law; (Art. 118, 137, 248 (F), 290) ---(should not be dismissed in the 1st place)  If dismissed Without ANY cause whatsoever, i.e., the EE has not committed an offense, ( EE does not deserve any penalty considering that he has not committed any offense

o

Limited Backwages  If the EE was dismissed Without JUST cause,i.e., the EE has committed an offense but the penalty of dismissal was found to be too harsh or excessive, full backwages should not be awarded because that would be in effect absolve the EE from his wrongdoing.  if there is delay in filing the complaint for illegal dismissal. The period of delay in instituting the action for reinstatement may be deducted from the liability for backwages

o

NO backwages  GF on the part of the ER in dismissing the EE  Cessation of employment brought about neither by dismissal nor abandonment  Cessation of employment due to the EEs refusal to work • EX: EE stops working on the erroneous belief that she was harassed and persecuted

o

Methods in Determining the Amount due to the EE  The “Deduction of Earning Elsewhere” Doctrine • earning obtained by the EE elsewhere shoud be deducted from the backwages awarded to the E pursuant to the principle that EEs should not be dismisses to enrich Palmiery/laborreview/atty.ungos4book/notes66666Page444of4114

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themselves at the expense of their ER and also because of the law’s abhorrence for double compensation Mercury Drug Doctrine (Mercury Drug vs CIR) • Discarded the 1st method • Backwages due to an illegally dismissed EE is fixed at a certain amount (usually 3-yrs where the case is not terminated sooner) without deduction or qualification • Realistic, reasonable and mutually beneficial to both parties because it relieves the EE from submitting docs to prove his earnings. Bustamante doctrine (Bustamante vs NLRC) • Currently followed • Backwages to be awarded to an illegally dismissed EE, should not, as a general rule, be diminished or reduced by the earnings, derived by him elsewhere during the period of his illegal dismissal • Reason: the EE, while litigating the matter of his dismissal, must still earn a living to support himself and family, while full backwages have to be paid by the ER as part of the price or penalty he has to pay for illegally dismissing his EE

o

Computation of backwages for irregular workers  Determine frst what these workers would have reasonably earned had they not been dismissed, using as basis for that purpose the wages actually earned by other irregular workers doing the same kind of work who have not been dismissed.

o

Circumstances that forestall the running of backwages  Death – (EE can earn wages only when alive)  Physical or mental incapacity  Attainment of retirement age  Permanent closure of establishment  Temporary closure of establishment  Confinement in prison  Re-employment of the dismissed EE

o

Other benefits  Transporation and emergency allowances  Vacation leave or service incentive leave, and  13th month pay  Phrase “other benefits” does NOT include: • Facilities used only during official tour of duty and not for personal and private purpose

•

Benefits that are enjoyable only if approved by the ER, such as free trip passes.



Separation Pay (SP) o Distinct from backwages, hence, can be awarded simultaneously o SP is intended to provide the EE money during the period in which he will be looking for another employment o Sort of an aid to an EE upon his separation from service so that he may something on which to fall back when he losses his means of livelihood o Amount designed to provide him with the wherewithal during the period that he is looking for employment o PURPOSE: to alleviate the difficulties that confront a dismissed EE thrown into the streets to face the necessities of life o When proper:  Redundancy  Installation of labor-saving devices  Retrenchment  Closure of establishment not due to serious business losses.  Disease, or  Lay-off/suspension of operations for more than six months  NOTE: EE found to have been unjustly dismissed, under the ff circumstances: • If reinstatement of the EE has been rendered impossible by supervening events, such as closure of estab, sale or transfer of business ownership, abolition of position, reduction of personnel or physical incapacity of the EE • If the reinstatement of the EE is no longer feasible, as when the relationship between the ER and the EE has been severely strained, or when there is no substantially equivalent position available.  NOTE: if the EE was dismissed for just and valid cause….? • GR: SP from work of an EE for a just cause DOES NOT entitle him to SP • EXCEPT: when the EE was validly dismissed for a cause, other that serious misconduct or offenses reflecting on his moral character as a measure of social justice  NOTE: if the EE resigned from his employment, NOT entitled to SP, except when it is stipulated in the employment contract, CBA or established ER practice or policy.  NOTE:if the EE retires from employment, NOT ENTITLED to SP but RETIREMENT PAY



Damages o Moral and exemplary damages prescribed by the Civil Code o EE must proved that his dismissal was: (moral damages)  Tainted by bad faith or fraud  Contrary to morals, good customs or public policy Palmiery/laborreview/atty.ungos4book/notes66666Page454of4114

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 Social humiliation, wounded feelings, grave anxiety, Exemplary damages  EEs dismissal was effected in a wanton, oppressive or malevolent manner

Reliefs when there is neither dismissal nor abandonment o Reinstatement o Not entitled to backwages/SP: each party must bear his own loss Liability of Corporate Officers o GR: corporate officers cannot be held personally liable or solidarily liable with the corpo for backwages, damages or other money claims of EEs, even if they were impleaded in the complaint. o EXCEPT:  If the corpo officer acted in bad faith;  If the corporation is no longer existing and unable to satisfy the judgment in favor of the EE, in which case, the officers should be held liable for acting on behalf of the corporation. o Solidarity liability – imposed upon the highest and most ranking officer of the corporation  Must be shown that the officers of the corp deliberately or maliciously designed to evade the financial obli of the corp to its EEs or a showing that the officers indiscriminately stopped its business to perpetrate an illegal act, as a vehicle for the evason of existing obli, in circumvention of statutes and to confuse legitimate issues.

Art. 280. Regular and Casual Employment 6 not a test of ER-EE relationship classification of employment o regular employment o non-regular employment o casual regular or permanent Employment o where the EE has been engaged to perfrom activities that are usually necessary and desirable in the usual business or trade of the ER o determined not by the employment contract nor by the nomenclature of the job but by the NATURE of the job. o TEST: reasonable connection between the particular activity performed by the EE in relation to the usual business or trade of the ER o In some cases: repeated re-hiring and the continuing need for the EEs service may indicate that the activity is usually necessary or desirable in the usual trade or business or trade of the ER Non-regular of Temporary Employment o Project Employment

o o

Seasonal employment Fixed-term employment  (the activities performed by the above are usually necessarily or desirable in the usual business or trade of the ER but the law does not consider them a regular EE because the engagement of the EE is only for a limited period.

Project employment o Job confined to a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the EE, regardless of the number of years that It would take time to finish undertaking o “specific project or undertaking” contemplates:  An activity which is not commonly or habitually performed; or  A type of work which is done on a daily basis but only for a specific duration of time until completion. o May refer to two distinguishable types of activities, to wit:  Project could refer to a particular job or undertaking that is within the regular or usual business of the ER, but which is distinct and separate and identifiable as such, from the other undertakings of the company. This begins and ends at determined or determinable times. • Ex: job on a construction company  Particular job or undertaking that is not within the regular business of the ER. Such job must also be identifiably separate and distinct from the ordinary or regular business operations of the ER • Ex: 5-yr expansion program for NST (consist of several component projects) o Each of the component project constitututes a distinct undertaking identifiable from the ordinary business and activity of NST o Length of service is not the controlling test of project Employment. o TEST: w/n the engagement of the EE has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the EE o The duration of employment is coterminous with the work to which the EE was assigned. o EEs affected cannot compel the ER to keep them in the payroll because it is unjust to require the ER to maintain them in the payroll while they are doing absolutely nothing except waiting until another project is begun. o Otherwise, these Stand-by Workers would be enjoying the status of privileged retainers collecting payment for work not done, to be disbursed by the ER from profits not earned. Seasonal Employment o Job that is limited to the duration of a particular season o Co-terminus with the duration of the season Palmiery/laborreview/atty.ungos4book/notes66666Page464of4114

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However, if the same EEs are repeatedly engaged every season, they become regular seasonal EEs, in which case, they cannot be terminated without just cause o OFF-season: regular seasonal EEs is nt severed but merely suspended Fixed- Term Employment o EEs with specific date of termination o Determining factor is not the activity that the EE is called upon to perfrm but the day certain agreed upon by the parties o DAY CERTAIN – that which necessarily must come, although it may not be known when o Employment contracts for a fixed period cannot be said to be in circumvention of security of tenure:  If the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress or improper pressure being bought to bear upon the EE and without any other circumstances vitiating consent, or  If it is satisfactorily appears that the ER and EE dealth with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. o

Casual employment o Job wherein the activities performed by the EE are not usually necessary or desirable in the usual business or trade of the ER o Casual occasional, coming with regularity. Also, when it is not part of the business in which the ER is engaged. o Casual EE who has rendered at least one (1) year of service, whether such service is continous or broken, is considered a regular EE with respect to the activity in which he is employed. o Regular status attached to the casual EE on the day immediately after the end of the first year of service o Art. 280 applies to EEs hired directly by an ER: Art. 106- those hired by the contractor Art. 281. Probationary Employment Situation where the EE upon his engagement is made to undergo a trial period during which the ER determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement. The contract should specifically state that the management of the EE is on probationary basis, otherwise, the employment cannot be considered as probationary. Purpose: to allow the ER to test the wrking habits and other personal traits of the EE with respect to his fitness for regularization in the company. Duration: o GR: limited to 6 months o Exceptions:  When the parties to an employment contract or CBA agree on a longer period;

When a longer probationary period is established by company policy; or  When a longer period is required by the nature of the work o NOTE: where the work for which the EE has been engaged is learnable or apprenticeable in accordance with the standards prescribed by the DOLE, the period of probi employment shall be limited to the authorized learnership or apprenticehip period. Thus,upon graduation or upon completion of the learning period, an apprentice or learner may not be put under probationary employment in the same company in which they are trained. In another company, they may be plac on probi status of 6months. Duration of Probi employment for teachers o Elem and secondary level – 3 consecutive school years of satisfactory service o Tertiary and graduate level – 6 consecutive semesters of satisfactory service o Tertiary level on trimester basis – 9 consecutive trimesters of satisfactory service 

Extension of probi employment o Granted to give the EE the chance to improve o Should before the expiration of the prescribed period otherwise, the EE will automatically become a regular EE by operation of law. Termination of probi employment o any of the causes enumerated in Art. 282, 283, and 284 of the LC, or o failure to qualify as a regular EE in accordance with reasonable standards made known by the ER at the time of his engagement o may be terminated even before the expiration of 6 months after hiring Limitations on the Right to Terminate a Probi Employment o Must be exercised in accordance with the specific requirements of the contract o The dissatisfaction of the ER must be real and in GF, not feigned so as to circumvent the contract or the law, and o There must be no unlawful discrimination in the dismissal Art. 282. Termination by the ER  Serious Misconduct or willfull disobedience by the EE of the lawful orders of his ER or rep in connection with the work  Gross and habitual neglect by the EE of his duties  Fraud or willfull breach by the EE of the trust reposed in him by his ER or duly authorized representative  Commission of a crime or offense by the EE against the person of his ER or any immediate member of his family or his duly authorized rep and  Other causes analogous to the foregoing. 

Serious misconduct Palmiery/laborreview/atty.ungos4book/notes66666Page474of4114

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Misconduct – improper or wrong conduct Transgression of some estab and definite rule of acion, forbidden act, a dereliction of duty, willful in character and implies a wrongful intent and not a mere error of judgment  Must be serious; and • Use of insulting and offensive language will constitute serious misconduct if uttered when the person subjected to it is present, otherwise, not. • When an EE made false and malicious statements against their superiors  Related to or in connection with the EEs work • Harassment of an EE by a co-EE within the company premises Willfull Disobedience o Requisites  The disobedience must be willfull or intentional  Order must be reasonable and lawful  Order must be known to the EE; and  Order must pertain to or must be in connection with the duties which the EE had been engaged to discharge o o

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o

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Willfull breach of trust o – if done intentionally, knowingly and purposely without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently  Valid ground: • Willful, and • Related to the performance of the EEs functions  Basic Premise: the EE concerned holds a position of trust and confidence and it is breach of this trust that results in the ER’s loss of confidence in the EE o Guidelines for the Application of the doctrine of Loss of confidence:  Loss of confidence should not be simulated  Should not be used as a subterfure for causes which are improper, illegal or unjustified  May not be arbitratrily asserted in the face of overwhelming evidence to the contrary and  Must be genuine, not a mere afterthought to justify the earlier action taken in bad faith o Positions of T/C  Bank teller  Cashier  Salesman  Miner  Teachers  GM  VP for Marketing  Dist. Sales Sup  Credit and Collection Sup  Warehouseman

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Commission of the crime o Ground for dismissal if commited by an EE against the person of the:  ER  Immediate member of his family  Authorized representative of the ER

The disobedience must be willfull or intentional o Characterized by a wrongful and perverse mental attitude rendering the EEs act inconsistent with proper subordination Order must be reasonable and lawful Pertains tp the kind or character of directives and commands and to the manner in which they are made Lawful – if not contrary to law, morals, good customs, public policy or public order Example: o Refusal to obey a transfer order Gross and habitual neglect of Duty o Gross: glaringly noticeable usually because of inexcusable badness or objectionableness. o Habitual: connotes more than just a single or isolated act. o Reason: reciprocal obligations entailed in an ER-EE relationship o Neglect: not the same as negligence  Neglect= indicates as a purely objective fact that a person has not done that which it was his duty to do – it does not indicate the reason for his failure  Negligence = subjective state of mind  Damage: not essential: enough to prejudice the ER

Fraud – is the knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. To constitute a just cause for dismissal, fraud must be:  Committed against the ER; and  In connection with the EEs work  NOTE: if 3rd person – not fraud: no connection with his work

Fraud Palmiery/laborreview/atty.ungos4book/notes66666Page484of4114

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Prior conviction is not required – mere commission of the crime is enough

Analogous causes o Must have an element similar to those found in the specific just cause enumerated under Art. 282 of the LC o Voluntary or willful act of the EE o Not included  Illness  Conviction of a crime involving moral turpitude o Examples:  Gross inefficiency • Closely related to “gross neglect”  Inflicting or attempting to inflict bodily injury on the job site on company time  Unreasonable behavior, quarrelsome, bossy and very difficult to deal with Other Valid Causes for Dismissal 1. Violation of company rules and regulations 2. Breach of union secu arrangements; a. Limitations: i. EEs who are already members of another union at the time of the signing of the CBA cannot be dismissed for refusing to join the contracting union ii. EEs who refuse to join the contracting union because of prohibition imposed by their religion cannot likewise be dismissed; iii. If its was the contracting union itself who refused to accept the EE as its member, the union cannot validly ask for the dismissal of the EE iv. If the EE resigns from the contracting union during the freedom period, the union cannot validly ask for the dismissal of an EE 3.

4. 5. 6.

Participation in an illegal strike a. Any union officer who knowingly participates in an illegal strike may be declared to have lost their employment status Commission of illegal acts during a strike a. Union officer or worker Defiance of return-to-work order in a strike; and Sexual harassment a. Committed by an ER, EE, Manager, Supervisor or agent of the ER who, having authority, influence or moral ascendancy over another,

demands, requests or otherwise any sexual favor from another, regardless whether the demand, request or requirement is accepted. Art. 283. Closure of Establishment and regulation of Personnel Economic justifications for terminating employment o Installation of labor-saving devices o Redundancy o Retrenchment to prevent the losses o Closing or cessation of operation of the establishment Not attributable to the fault of the EE but due to the prerogative of every business concern to institute appropriate measures to ensure increased productivity, economic viability and competetiveness Due to economic reasons 

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 1.

Installation of labor-saving devices  ERs right to effect more economy and efficiency in its method of production  Purpose: to mechanize or modernize its business even if in the process, It results in the dismissal of a number of EEs

2.

Redundancy  Exist when the services of an EE are in excess of what is reasonably demanded by the actual requirements of the enterprise  Exercise of business judgment  Does not necessarily refer to the duplication of work  Principle: an ER cannot be compelled to give employment to a greater number of persons than the economic operations of his business requires.  Requisites: o GF in abolishing the redundant positions o Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. o Written notice served on both the EEs and the DOLE at least 1 month prior to the intended date of termination; and o Payment of SP

3.

Retrenchment  Is the reduction of personnel due to actual or anticipated losses, lack of work or reduction in the volume of business  Can be adopted even before the actual losses is sustained  Four standards o Expected losses should be substantial and not merely deminimis in extent o Substantial loss apprehended must be reasonably imminent, as such immenence can be perceived objectively and in good faith by the ER o Must be reasonably necessary and likely to effectively prevent the expected losses. It must be resorted to as a measure of last resort Palmiery/laborreview/atty.ungos4book/notes66666Page494of4114

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Alleged losses realizes and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence

Requisites for valid retrenchment o It is reasonably necessary and likely to prevent business losses which, if already incurred, and not merely de minimis but substantial, serious, actual and real or if onlu expected, are reasonably imminent as perceived objectively and in GF by the ER. o That the ER exercises its prerogative to retrench EEs in GF for the advancement of its interest and not to defeat or circumvent the EEs right to security of tenure; o That the ER used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the EEs o That the ER served written notice both to the EE and the DOLE at least 1 month prior to the intended date of retrenchment o That the ER pays the retrenched EEs separation pay.

Closure of establishment  Permanent closure  Prerogative of management  Requisites: o Closure of a business must be bona fide in character o A written notice must be served upon the EEs and the DOLE at least one moneth before the intended date of closure o The ER must be give separation pay to the EEs, if the closure was not due to serious business losses.  Relocation of plant may amount to closure  Procedural requirements o 2 notices months: 1-affected EE; 1- DOLE o One month in advance o Purpose: to obviate abrupt and arbitrary dismissal and to enable the EE to survive while he is looking for another job.

Amount of SP EEs terminated are entitled to SP of at least one month pay or the ff amount, whichever is higher: (A) ONE MONTH pay for every year of service, in case of: a) Installation of labor saving device b) Redundancy (B) ½ month for every year of service, in case of: a) Retrenchment to prevent losses; b) Closure of the establishment not due to serious business losses. NO SP in case of closure of business die to serious business losses. “for every year of service” = means actual service SP – based on the salary rate before its deduction Art. 284. Disease as a ground for Termination

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Conditions for terminating an employment due to illness o That the continued employment of the sick EE is prohibited by law or is prejudicial to his health or to the health of his co-EEs and o That there is a certification from a competent public authority that the diseaseis of such nature or at such a stage that is cannot be cured withn the period of 6 months even with proper medical treatement Medical cert required If can be cured within 6-months, the EE shouls be allowed to take a leave Otherwise, the EE is entitled to a SP equivalent to at least 1month salary or ½ month for every year of service. Whichever is greater.

Art. 285. Termination by EE Termination of Employment by an EE 1. Voluntary resignation 2. Constructive resignation (abandonment of employment) 3. involuntary resignation (constructive dismissal 1. Voluntary resignation  Formal renouncement or relinquishment of an office. It is the voluntary act severing an employment relation at the initiative of the EE who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of service that he has no other choice but to disassociate himself from his employment  Must be unconstitutional and with the intent to operate as such  Intent to relinquish the job can be inferred from the wordings of the letter or memorandum/actuations of the EE  Threat to prosecute for estafa is not an unjust act but rather a valid and legal act to enforce a claim, hence, it cannot at all be considered as intimidation  Not negated by the fact that the ER persuades an EE to resign instead of being dismissed for cause 1-month NOTICE  EE should give his ER a written notice of resignation at least 1 month in advance. Otherwise, the ER can hold him liable for damages  The ER cannot compel the EE to render service during the period because that would amount to involuntary servitude  Purpose: to enable the ER to look for replacement and therefore, prevent a disruption of work. If 1-month lapses, the EE can leave his employment even if the ER has not found a replacement and even if the operation of the company would be affected.  May be waived by the ER Effect of Acceptance of Resignation  Once accepted, may not be withdrawn without the consent of the ER  If the EE changes his mind—he must ask for the withdrawal of his resignation from the ER, as if he were re-applying for his job Palmiery/laborreview/atty.ungos4book/notes66666Page4104of4114

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   

If the ER accepts said withdrawal – the EE retains his job If the ER does not – the EE cannot claim illegal dismissal for the ER has the right to determine who his EEs will be. Employment contract is consensual and voluntary NOT entitled to SP, except when it is stipulated in the employment contract, CBA or if sanctioned by established ER practice or policy

2. constructive resignation (abandonment of employment) Deliberate, unjustified refusal of an EE to resume his work Voluntary act of the EE akin to voluntary resignation, but here, the EE quits his employment without notice Elements o Absence without notice, permission or justifiable reason o Intent to sever the employment relationship Intent to abandon can be inferred from the ff: o Failure of the EE to comply with notices or directives for him to report for work o Failure to report for work within reasonable time after expiration of leave of absence without pay o Failure to report for work despite disapproval of application for indefinite leave of absence o Prolonged absences without justifiable reason Negated by the immediate filing of a complaint for illegal dismissal. Except when the EE does not pray for reinstatement but only for SP Abandonment vs absence without Leave (AWOL) o Abandonment – no intention to return to work o Absence without leave – there is an intention to return to work Issue w/n an EE abandoned his employment is q question of fact o Burden of proof is on the ER 3. involuntary resignation (constructive dismissal) Situation where an EE is contrained to quit his job because continued employment is rendered impossible, unreasonable or unlikely; There is demotion in rank, diminution in pay or when there is a clear discrimination, insensibility or disdain by an ER becomes unbearable to the EE Art. 285 LC – forms of constructive dismissal because the resignation was involuntary o Serious insult upon the honor and person of the EE  Exemplified by an EE who quits his employment after being demoted without just cause o Inhuman and unbearable treatment  Exemplified by an EE who quits his employment because of a legitimate desire for self-preservation o Commission of a crime  Exemplified by ER who commits the crime of rape, PI, mutilation, abortion, infanticide, homicide, murder, parricide, discharge of firearms or challenging to duel, against the EE or the immediate member of his family

o o

One – month notice NOT required if the EE decides to quit his job for any causes in Art. 285 Relief: SP plus indemnity in the form of nominal damages or backwages, the amount of which will depend upon the discretion of the LA or the NLRC  Reinstatement not proper relief because of the strained relations between the parties

Art. 286. When employment not deemed Terminated 1. bonafide suspension of the operation of a business or undertaking for a period NOT exceeding 6 months  Management prerogative as no business can be required to continue operating at a loss simply to maintin the workers in employment  Must be done in GF and due to causes beyond control  ER-EE relationship – merely suspended.  Once the operations resumed, the EE-ER relationship is restored and the ER is bound to reinstate the EE to his former position without loss of seniority rights If he indicates his desire to resume his work not later than 1-month from the resumption of operations.  If exceeds 6-months – constructive dismissal: EE entitled to SP, unless the failure to resume operations was impelled by serious business losses, in which case, the EEs are not entitled to SP o Temporary lay-off detail/floating status  Waiting to be posted  Should not exceed 6months 2. The fulfillment by an EE of a military or civic duty  Suspends the employment even if it exceeds 6months  Reason: State orders a citizen to render military or civic duty, there is no choice except to comply  EE must signify his desire to resume his work not later than one-month from his relief from the military or civic duty Retirement from the service Retirement -

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Labor Law Reviewer Ungos

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