AY 2012-2013 (March 11, 2013) 1. X Company, which employs more than 100 workers in its assembly plant in Laguna, has 70 foremen and 15 supervisors given the power to recommend the hiring, firing or suspension of employees. The ultimate power to hire, fire, f ire, or suspend, however the plant personnel manager. Are the foremen and supervisors considered managerial employees? Managerial Employees (page Employees (page 35, 2016 MA) Alter-egos of their employers who meet the following conditions: conditions: 1. There primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; 2. They customarily and regularly direct the work of two or more employees therein; and 3. They have authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. 2. X, a nurse employed by the Hospital ng Maynila works for eight (8) hours a day, six (6) days a week. Is she entitled to overtime pay? Normal Hours of Work of Health Personnel (page Personnel (page 37) 1. For health personnel in cities and municipalities with a population of at least 1 million or in hospitals and clinics with a bed capacity of at least 100: a. Regular office hours shall be 8 hours a day for five days a week, or 40 hours a week, exclusive of time for meals b. In case of exigencies, they may work for 6 days or for 48 hours, but they shall be entitled to an additional compensation of at least 30% of their regular wage for work performed on the 6th day. 2. Health personnel in government service are excluded from the coverage of Arts.82-96 of the Labor Code. Their employment benefits are governed by Magna Carta of Public Health Workers. 3. Distinguish between overtime pay from premium pay. Overtime pay Additional compensation for work performed beyond the 8 hours of daily work. Premium Pay Additional compensation to be paid for work done or performed within the regular 8 hours of non-working days such as rest days national holidays. 4. Facilities and Supplements A. During his employment as Chief Security Officer at Manila Diamond Hotel, Z was provided with meals, water, electricity, and lodging. Are these t hese items deemed facilities? Requirements for Deducting Amount of Facilities 1. Proof must be shown that such facilities are Customarily furnished by the trade; t rade; 2. The provision of deductible facilities must be voluntarily Accepted by the employee; and 3. The facilities must be charged at a Fair and reasonable value. Note: As regards meals and snacks, the employer may deduct from the wage not more than 70% of the value of the meals and snacks, provided that such deduction is authorised in writing by the employees. The remaining 30% of the value has to be subsidised by the employer. employer.
B. Distinguish between Supplements and Facilities? (page 53)
As to nature
As to deductibility
Facilities items of expense necessary for the laborer’s and his family’s existence and subsistence
part of the wage deductible from the wage
Supplements items which constitute Extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings and wages. granted for the convenience of the employer independent of the wage not wage deductible
5. What is “Compressed Workweek?” (page 36) Compressed Workweek is resorted to by the employer to prevent serious losses due to causes beyond his control, such as when (1) there is a substantial slump in demand for his goods or services or (2) when there is a lack of raw materials. To be an exception to the “eight-hour a day” 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 take-home pay. The scheme is an alternative arrangement whereby the normal workweek is reduced to less than six (6) days but the total number or normal hours per week remains at 48 hours. The normal workday is increased to more than eight (8) hours without corresponding overtime premium. Conditions of a Valid CWW Scheme: (SCN) 1. It is expressly and voluntarily Supported by majority of the employees affected; 2. If the work is hazardous a Certification is needed from an accredited safety organization or the firm’s safety and health standards; and 3. The DOLE is duly Notified. 6. A. Discuss the duty of the employer in connection with the meal periods of his employees. Rules of Meal Periods 1. General Rule: Should not be less than sixty (60) minutes. It is not compensable, except where during the meal period, the laborers are required to standby for emergency work, or said mean hour is not one of complete rest, such period is considered overtime (hours worked). 2. Exception: May be less than 60 minutes, but should not be less than 20 minutes and the shortened mealtime must be with full pay, under the ffg. instances: a. Work is Non-manual work in nature or does not involve strenuous physical exertion b. Where establishment regularly Operated not less than sixteen (16) hours a day; c. In cases of actual or impending Emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; or d. Where the work is necessary to prevent serious loss of Perishable goods. 3. Rest periods or coffee breaks running from 5-20 minutes shall be considered as compensable working time.
Note: Meal periods during overtime work is not given to workers because overtime work is usually for a short period ranging from one to three hours and to deduct the dam one full hour as meal period may reduce the employee’s overtime work for nothing. B. May the employee shorten the meal period to less than one (1) hour? Explain. Shortened Meal Break Upon Employees’ Request Employees may request that their meal period be shortened so that they can leave work earlier than the previously established schedule. Such shortened mealtime is not compensable. Requisites: (SEDOTA) 1. Work is not physically Strenuous and they are provided with adequate coffee breaks in the morning and afternoon; 2. Value of benefits is Equal to the composition due them; 3. No Diminution in the salary and other fringe benefits of the employees already existing; 4. Overtime pay will become due and demandable if ever they are permitted or made to work beyond 4:30pm; 5. The arrangement is of Temporary duration; and 6. Employees voluntarily Agree in writing and waive the overtime pay; 7. N, a building contractor, entered into a contract with XYZ Insurance Company for the construction of the latter’s new five-storey office building. In connection with the aforesaid contract, N hired carpenters, masons, and laborers. 1. What are the factors in determining whether XYZ Insurance Company may be considered an “indirect employer” of the workers of N? 2. May XYZ Insurance Company be held liable for unpaid wages and other monetary claims of N’s workers? 8. a. What are the legal grounds when the State Insurance Fund may validly deny a claim for compensation made by a covered employee or his dependents? There will be no compensation if the injury, Death or Disability is the Result of Employee’s: 1. Willful Intention to injure or kill himself or another; 2. Intoxication 3. Notorious Negligence; and 4. Otherwise provided by the Labor Code Self-Inflicted Injuries or Suicide
- The injury must be intentionally self-inflicted, which contemplates a deliberate intent on the part of the employee, not a failure on his part to realize the probable consequences to himself of his foolish act.
- Sufficient proof of insanity or mental sickness may be presented to negate the requirement of willfulness. General Rule: No compensation for disability and death Exceptions: 1. By agreement of the parties 2. If suicide/death is work-related or a compensable illness or disease Rules on Injury of Death in the Course of Assault 1. Injured was the unlawful aggressor - not compensable
2. Injured was the victim of the assault and it occurred in the course of performance of official functions - compensable Intoxication
- Under the influence of intoxicating liquor to the extent that one is not entirely himself or so that his judgment is impaired and his acts, words, or conduct is visibly impaired.
- Intoxication alone is not sufficient to defeat the recovery of compensation, when intoxication does not incapacitate the employee from performing his functions and duties. Notorious Negligence
- Is a deliberate act of the employee to disregard his own personal safety General Rule: Notorious negligence resulting in serious injury or death of the employee is not compensable. Exceptions: 1. Lack of knowledge or awareness of the peril and the seriousness of existing danger; or 2. The unexpectedness, under the circumstances of the accident b. Explain the “no double recovery rule” under the State Insurance Fund The injured employee cannot claim payment twice for the same injury from both the third party and the GSIC or SSS, as the case may be. An attempt by the insured to file multiple claims on a single loss event with multiple insurers. Double recovery violated the principle of Indemnity, which states that insurance contract cannot result in a profit for the insured.
9. A. What is the “Going and Coming Rule”? Give the exceptions to the rule. (page 81) General Rule: Going and Coming Rule - in the absence of special circumstances, an employee injured going to or coming from, his place of work is excluded from the benefits of the Workmen’s Compensation Act. Exceptions: The injury is compensable 1. Premises of the Employer - the injury is sustained when the employee is proceeding to or from his work in the premises of the employer; 2. Ingress-Egress/Proximity Rule - where the employee is about to enter or about to leave the premises of his employer by way of exclusive or customary means 3. Special-Errand Rule - where the employee is charged, which on his way to or from his place of employment or at his home, or during his employment with someday or special errand connected with his employment; or 4. Shuttle Bus Rule/Extra Premises Rule - Where the employer, provides the means of transportation to and from the place of employment, the company is liable to the injury sustained by the employees while on board said means of transportation B. PO3 Tom Cruz, a member of the Quezon City Police District was shot to death by a Barangay Chairman in from of the Manila City Hall. The fatal shooting stemmed from a stabbing incident a day earlier between the sons of PO3 Tom Cruz and Barangay Chairman. Although he was supposed to be on duty at Camp Karingal in Quezon City, PO3 Tom Cruz was accompanying his
son to the Office of Mayor Alfredo Lim for interview and proper disposition. Is the death of PO3 Tom Cruz work-connected and therefore compensable? Why? The death is compensable. Employees’ Compensation Commission vs. Court of Appeals
“But for clarity’s sake and a guide for future cases, we hereby hold that members of the national police, like P/Sgt/ Alvaran, are by the nature of their functions technically on duty 24 hours a day. Except when they are on vacation leave, policemen are subject to call anytime and may be asked by their superiors or by any distressed citizen to assist in maintaining the peace and security of the community.”
xxx xxx xxx xxx “While it is true that, “geographically” speaking, P/Sgt. Alvaran was not actually at his assigned post at the Pasig Provincial Jail when he was attacked and killed, it could not be denied that bringing his son - as a suspect in a case - to the police station for questioning to shed light on a stabbing incident, he was nor merely acting as father but as a peace officer.
From the foregoing cases, it can be gleaned that the Court did not justify its grant of death benefits merely on account of the rule that soldiers or policemen, as the case may be, are virtually working wound-the- clock.” 10. What is “Compassionate Visit?” When a migrant worker is hospitalized or has been confined for at least seven (7) consecutive days, he shall be entitled to a compassionate visit by one (1) family member or (2) a requested individual. The insurance company shall pay for the transportation cost of the family member or requested individual to the major airport closest to the place of hospitalization of the worker. It is, however, the responsibility of the family member or the requested individual to meet all visa and travel document requirements. 11. Enumerate the benefits that may be enjoyed by domestic worker under the Kasambahay Law. 1. 2. 3. 4. 5. 6.
Minimum Wage Mandatory benefits such as SIL and 13th month pay Freedom from employer’s interference in the disposal of wages Coverage under the SSS, PhilHealth and Pag-IBIG laws Right to exercise religious beliefs and cultural practices Domestic worker or kasambahay shall not be subject to any kind of abuse nor to any form of physical violence or harassment or any act tending to degrade the dignity; 7. Employer shall provide the basic necessities of the domestic worker, to include: a. At least 3 adequate meals a day taking into consideration the kasambahay’s religious beliefs and cultural practices; b. Humane sleeping arrangements; c. Appropriate rest and medical assistance, including first aid medicines, in case of illnesses and injuries sustained during service without loss of benefits. 8. Respect for privacy shall be guaranteed and shall extend to all forms of communication and personal effects; 9. The employer shall grant the domestic worker access to outside communication during free time, provided, that in case of emergency, access to communication shall be granted even during work time;
10. The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems; 11. All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment; and 12. The Kasambahay shall have the right to join a lot organization of his/her own choosing for purposes of mutual aid and collective negotiation 12. When is contracting or subcontracting legitimate under DOLE Administrative Order 18-A, Series of 2011? a. The contractor or subcontractor must be Registered* in accordance with the rules and carries a distinct and independent business and undertakes to perform a job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; b. The contractor has Substantial capital and/or investment c. The Service Agreement ensures Compliance with all the rights and benefits under Labor Laws. * Absence of registration only gives rise to the presumption that the contractor is engaged in labor-only contracting; a presumption that can be refuted.
AY 2015-2016 May 4, 2016 1. B a building contractor, entered into a contract with CDE Insurance Company, for the construction of the latter’s new five storey building. In connection with the aforesaid contract, B hired carpenters, masons, and laborers. a. What are the factors in determining whether CDE Insurance Company may be considered an “indirect employer” of the workers of B? 1.) One must determine whether CDE has substantial capital in forms of money or assets as to conduct a contracting business.
2.) There is a need to determine if CDE is registered to conduct contracting business in accordance with the law. 3.) CDE must have a separate and distinct business aside from contracting workers. 4.) The service agreement must show that there is compliance with all the rights and benefits under the Labor Laws. b. May CDE Insurance Company be held liable for unpaid wages and other monetary claims of B’s workers? Explain. YAS BEH. Because as provided by law, CDE is solidarily liable, ONLY for unpaid wages, with B, the building contractor. 2. F, single and living-in with G (legally separated from his wife), is pregnant with her fifth child. She applied for maternity leave but her employer refused the application because she is not married. Decide. The employer’s refusal is unjustified. Qualifications for Entitlement of Maternity Benefit: 1) Female employee should be a member of SSS 2) Employed at the time of delivery/miscarriage/abortion 3) She must have notified the SSS through her employer 4) Female member must have paid at least 3 months of maternity contributions within the 12-month period immediately before the semester of contingency. Every pregnant woman in the private sector, whether married or unmarried, is entitled to the maternity leave benefits (R.A. No. 9282, Sec 14-A). 3. Define, then explain briefly the legal significance of the following. a. WAGE DISTORTION
- 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 distinction embodied in such wage structure based on skills, length of service, or other logical bases of differentiation (Art. 124, Labor Code)
- Significance: Wage Distortion removes the intended differences between two different classes in a hierarchy within a business or firm or establishment. Elements: 1) Significant change or increase in the salary rate of a lower party class without a corresponding increase in the salary rate of a higher one; 2) Existing Hierarchy of positions with corresponding salary rates; 3) Elimination of the distinction between two groups or classes; and 4) Distortion exists in the same region of the country Employer Legally Obliged to Correct Wage Distortion The employer and the union shall negotiate to correct the distortions. If there is no union, the employer and the workers shall endeavor to correct such distortions. b. LABOR-ONLY CONTRACTING
- Shall refer to an arrangement where the alleged contractor recruits and supplies workers to a client/principal where: a. The contractor does NOT have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are performing activities which are usually necessary or desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined period,
regardless of whether such job, work, or service is to be performed within or outside the premises of the principal; or b. The contractor does NOT exercise control over the performance of the work of the employee. c. 24-HOUR DUTY DOCTRINE In determining compensability of injury or death, soldiers and policemen and even firemen by the nature of their work may be considered on duty round-the-clock. But this doctrine, while it relaxed the work-place factor, does not dispense with the work-connection requisite. Exceptions: a. When the officer is on a vacation leave or b. When the officer is not in the line of duty as he is doing acts personal to himself d. SOLO PARENT Any Individual who falls under any of the following categories: (RDDISNA-Un-OF) 1)
Rape or other crimes against chastity even without a final conviction of the offender. Provided, that the mother keeps and raises the child. 2) Death of spouse 3) Spouse is Detained or serving sentence for a criminal conviction for at least 1 year 4) Spouse is Incapacitated, mentally and/or physically, as certified by public medical practitioner 5) Legally Separated from spouse for at least 1 year, as long as he/she is entrusted with the custody of children 6) Declaration of Nullity or annulment of marriage as decreed by court or by a church as long as he/she is entrusted with the custody of the children 7) Abandonment of spouse for at least 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) 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. e. PRINCIPLE OF AGGRAVATION
- Where an employment injury worsens or combines with a preexisting impairment to produce a disability greater than that which would have resulted from the employment injury alone, the entire resulting disability is compensable.
- In order be entitled to disability benefits, the claimant has to present evidence to prove that his ailment was the result of, or the risk of contracting the same were aggravated by working conditions of the nature of his work.
- The rule has been abandoned under the New Labor Code. 4. The projected bonus for the employees of H Company was 30% of their monthly compensation. Unfortunately, due to the slump in the business, the president unilaterally reduced the bonus to 5% of their compensation. a. As counsel for the company, explain the legal justification(s) for the president’s action. If the same has not ripened into company practice or policy, then the bonus may be unilaterally withdrawn because such benefit has not yet accrued to them as to consider it company policy. Hence, since bonuses are generally an act of gratuity by the employer, the employees cannot say that they have been deprived of such benefit in accordance with the Labor Code.
b. As counsel for the employees, explain the legal ground(s) for your opposition to the president’s action. Assuming that the same has ripened into company policy or practice, the same cannot be unilaterally reduced or withdrawn by the employer without the consent of the employees affected since the benefit has become part of the employment contact, whether written or unwritten. 5. J, a project worker, was being assigned by his employer, K Builders Corporation, to Apari, Cagayan. J refused to comply with the transfer claiming that in effect, he was being constructively dismissed because it would take him away from his family and his usual work assignments in Metro Manila. The Labor Arbiter found that there was no constructive dismissal but ordered the payment of separation pay due to strained relations between the parties, plus attorney’s fees equivalent to 20% of the value of J’s separation pay. Is the award of attorney’s fees valid? Explain your answer. 6. State whether you agree or disagree with the following statements. Explain your reason for each answer. a. The Labor Code provisions on retirement pay had expanded the term “one hand (1/2) month salary” because it means 15 days’ pay plus a 13th month pay. b. The DOLE Regional Director does not have jurisdiction over money claims arising from employer-employee relationship if such claims exceed P 5,000.00. (Bombo Radyo Case). 7. Distinguish between: a. Paternity and Maternity Leave Benefits Paternity Leave Benefits Male employee married to and cohabiting with his lawful/legal spouse Need not be a member of SSS
Maternity Leave Benefits Female employee whether married or married Member of the SSS No cohabitation requirement
Marital Status Source of Payment
Male spouse must be cohabiting with female spouse, except, when his employment requires him to work away Married Directly from the employer
Number of days
7 days paid leave
Limit
First four miscarriages or delivery
Qualifications SSS Membership Co-habitation requirement
Married or unmarried From the employer, subject to reimbursement from the SSS Normal Delivery: 60 days paid leave C-Section: 78 days paid leave First four miscarriages, delivery, or abortion
b. Facilities and Supplements
As to nature
As to deductibility
Facilities items of expense necessary for the laborer’s and his family’s existence and subsistence
part of the wage deductible from the wage
Supplements items which constitute Extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings and wages. granted for the convenience of the employer independent of the wage not wage deductible
c. Workmen’s Compensation Act and Employee’s Compensation Law
Nature of Proceedings Governing Law
Workmen’s Compensation Act Litiguous, Quasi-Judicial Act 3428
Presumption of Compensability Proof of Causation
With presumption of compensability
Burden of Proof Presumption of Aggravation Employer’s Participation
Employer With presumption of aggravation
Who is liable
No need to present proof of causation
If he/she so desires, employer may controvert the claim within 14 days from date of disability or within 10 days from knowledge thereof; otherwise, he is deemed to have waived the right Payment of compensation if made by the employer
Employees’ Compensation Law Administrative P.D. No. 442 amended extensively by P.D. No. 626 No presumption
Proof of causation is needed if the disease is not listed Claimant No presumption of aggravation Employer is nor allowed to intervene in the process of the compensation claim
Payment of the compensation is made by the SSS/GSIS through the State Insurance Fund.
8. Enumerate the befits that may be enjoyed by a domestic worker under the Kasambahay Law . 1. 2. 3. 4. 5. 6.
Minimum Wage Mandatory benefits such as SIL and 13th month pay Freedom from employer’s interference in the disposal of wages Coverage under the SSS, PhilHealth and Pag-IBIG laws Right to exercise religious beliefs and cultural practices Domestic worker or kasambahay shall not be subject to any kind of abuse nor to any form of physical violence or harassment or any act tending to degrade the dignity; 7. Employer shall provide the basic necessities of the domestic worker, to include: a. At least 3 adequate meals a day taking into consideration the kasambahay’s religious beliefs and cultural practices; b. Humane sleeping arrangements; c. Appropriate rest and medical assistance, including first aid medicines, in case of illnesses and injuries sustained during service without loss of benefits. 8. Respect for privacy shall be guaranteed and shall extend to all forms of communication and personal effects; 9. The employer shall grant the domestic worker access to outside communication during free time, provided, that in case of emergency, access to communication shall be granted even during work time; 10. The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems; 11. All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment; and 12. The Kasambahay shall have the right to join a lot organization of his/her own choosing for purposes of mutual aid and collective negotiation 9. What are the legal grounds when the State Insurance Fund may validly deny a claim for compensation made by a covered employee or his dependents? There will be no compensation if the injury, Death or Disability is the Result of Employee’s: 1. Wilful Intention to injure or kill himself or another; 2. Intoxication 3. Notorious Negligence; and 4. Otherwise provided by the Labor Code
Self Inflicted Injuries or Suicide
- The injury must be intentionally self-inflicted, which contemplates a deliberate intent on the part of the employee, not a failure on his part to realise the probable consequences to himself of his foolish act.
- Sufficient proof of insanity or mental sickness may be presented to negate the requirement of wilfulness. General Rule: No compensation for disability and death Exceptions: 1. By agreement of the parties 2. If suicide/death is work-related or a compensable illness or disease Rules on Injury of Death in the Course of Assault 1. Injured was the unlawful aggressor - not compensable 2. Injured was the victim of the assault and it occurred in the course of performance of official functions - compensable Intoxication
- Under the influence of intoxicating liquor to the extent that one is not entirely himself or so that his judgment is impaired and his acts, words, or conduct is visibly impaired.
- Intoxication alone s not sufficient to defeat the recovery of compensation, when intoxication does not incapacitate the employee from performing his functions and duties. Notorious Negligence
- Is a deliberate act of the employee to disregard his own personal safety General Rule: Notorious negligence resulting in serious injury or death of the employee is not compensable. Exceptions: 1. Lack of knowledge or awareness of the peril and the seriousness of existing danger; or 2. The unexpectedness, under the circumstances of the accident
