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Key Notes on LABOR STANDARDS and related labor cases Art. 1. Name of Decree. This Decree shall be known as the "Labor Code of the Philippines". Presidential Decree No. 442 – otherwise known as the “Labor Code of the Philippines. Social legislation – include laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. Labor Legislation – consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for employment standards and a legal framework for negotiating, adjusting and administering those standards and other incidents of employment. Classifications of Labor Legislation 1.
Labor standards law – is that which sets out the minimum terms, conditions and benefits of employment that employers must provide or comply with and to which employees are entitled as a matter of legal right.
As defined more specifically by jurisprudence, “are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-ofliving allowance, and other monetary welfare benefits, including occupational safety, and health standards.” (Maternity Children's Hospital vs. Secretary of Labor, GR No. 78909, June 30, 1989.) 2.
Labor relations law – defines the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of employers, employees or their representatives.
Labor - is understood as physical toil although it does not necessarily exclude the application of skill, thus there is skilled and unskilled labor. Distinction: Labor law and social legislation Labor laws- directly affect employment Social legislation- governs effects of Employment. - are social legislation - not all SL are Labor Laws Social Justice – is “neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, the exercise of powers underlying the existence of all governments on the time-honored principle of
salus populi est suprema lex.” (Calalang vs. Williams, 70 Phil. 726.) While social justice is the raison d'etre of labor laws, their basis or foundation is the police power of the State. Police Power – is the power of the government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of society. It is settled that state legislatures may enact laws for the protection of the safety and health of employees as an exercise of police power. Art. 2. Date of effectivity. This Code shall take effect six (6) months after its promulgation. May 1, 1974 – PD No. 442 was signed into law. November 01, 1974 – effectivity date of the Labor Code. Related Laws: Civil Code, RPC, Special Laws 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 assure the rights of workers to selforganization, collective bargaining, security of tenure, and just and humane conditions of work. The Basic Policy of the Labor Code (social economic goals) 1. Protection to labor; 2. Promote full employment; 3. Ensure equal work opportunities regardless of sex, race or creed, and 4. Regulate the relations between workers and employers Both sectors (employees and employers) need each other. They are interdependent – one is inutile without the other. The basic policy is to balance or to coordinate the rights and interests of both workers and employers. Rights of Workers Under Art. 3 of the Labor Code 1. Self-organization; 2. Collective bargaining; 3. Security of tenure; and 4. Just and humane conditions of work Constitutional Basis of the Labor Code
Art. II, Sec. 18 - the 1987 Constitution declares as a state policy: “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” Art. III, Sec. 18, par. 2 – no involuntary servitude Art. IX-B, Sec. 2, Par. 1 – CSC embraces all branches... agencies of government, including GOCCs with original charters. Art. IX-B, Sec. 2, par. 3 – No officer or employee shall be removed or suspended except for cause provided by law Art. IX-B, Sec. 5 – standardization of compensation of government officials and employees. Art. XII, Sec. 6 – the right to own, establish economic enterprises subject to the duty of the State to promote distributive justice Art. XII, Sec. 12 – preferential use of Filipino labor
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Art. XII, Sec. 14, par. 2 – practice of all professions shall be limited to Filipinos Art. XII, Sec. 16 – Congress shall not provide for the formation, organization, or regulation of private corporations Art. XIII, Sec. 1 – protect and enhance right to human dignity, reduce social, economic and political irregularities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good Art. XIII, Sec. 2 – promotion of social justice shall include the commitment to create economic opportunities Art. XIII, Sec. 3, par. 1 – protection to labor, local and overseas, organized and organized, and promote full employment and equality of employment opportunities for all Art. XIII, Sec. 3, par. 2 – guarantee the rights of all workers: (1) self-organization; (2) collective bargaining and negotiations; (3) peaceful concerted activities, including the right to strike in accordance with law; (4) security of tenure; (5) humane conditions of work; (6) living wage; (7) participate in policy and decision-making processes affecting their rights and benefits Art. XIII, Sec. 3, par. 3 – shared responsibility: voluntary modes in settling disputes Art. XIII, Sec. 3, par. 4 – regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments and to expansion and growth. (Constitutional balance between the rights of workers and employers)
Job is a property, and no person shall be deprived of life, liberty, and property without due process. Through distributive justice, labor must receive what is due them for the return of investment. 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. The Supreme Court adopts the liberal approach which favors the exercise of labor rights. The labor law is liberally construed in favor of the workers and strictly construed against the employers. Reason for according greater protection to employees In the matter of employement bargaining, there is no doubt that the employer stands on higher footing than the employee. Those who have less in life should have more in law. Management Rights It should not be supposed that every labor dispute will be automatically decided in favor of labor. Management has also its own rights which are entitled to respect and enforcement in the interest of simple fair play. The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer.
Right to Return of Investments (ROI) – the employer has the right to recover his investments and to make profit. The Constitution provides that the State shall regulate the relations between workers and employers, recognizing the right of labor to its just share... and the right of enterprises to reasonable returns on investments, and to expansion and growth.
The Right to Prescribe Rules – employers have the right to make reasonable rules and regulations for the government of their employees, and when employees, with knowledge of an established rule, enter the service, the rule becomes part of the contract of employment.
The Right to Select Employees – an employer has a right to select his employees and to decide when to engage them. The State has no right to interfere in a private employment; it cannot interfere with the liberty of contract with respect to labor except in the exercise of the police power. If the employer can compel the employee to work against the latter's will, this is servitude. If the employee can compel the employer to give him work against the employer's will, this is oppression.
Right to Transfer or Discharge Employees – the employer has the perfect right to transfer, reduce or lay off personnel in order to minimize expenses and to insure the stability of the business, and even to close the business, provided the transfer or dismissal is not abused but is done in good faith and is due to causes beyond control. To hold otherwise would be oppressive and inhuman.
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 implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation. The Labor Code itself in Art. 5 vests the Department of Labor and Employment with rule-making powers in the enforcement thereof. 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. (As amended by Presidential Decree No. 570-A, November 1, 1974). The Code is applicable to all employees in private sector and government corporations without original charter. Under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation. Government corporations created by special (original charter) from Congress are subject to Civil Service rules, while those incorporated under the general Corporation Law are covered by the Labor Code. The government-owned-and-controlled corporations “with original charter” refer to corporations chartered by special law as distinguished from corporation organized under our general incorporation statute, the Corporation Code.
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While government employees are allowed under the 1987 Constitution to organize and join union of their choice, there is no law permitting them to strike.
Art. 128. Visitorial and enforcement power. Visitorial Power of the Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers 1. Access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein; 2. To copy from employer's records; 3. To question any employee 4. To investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code Enforcement Power of the Secretary of Labor and Employment or his duly authorized representatives 1. To 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; 2. To issue writs of execution to the appropriate authority for the enforcement of their orders; 3. The Secretary of Labor and Employment to order stoppage of work or suspension of operations of any unit or department of an establishment when noncompliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. 4. The Secretary of Labor and Employment may require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code. It is the right of employer to ask authority from visiting labor personnel. Failure may result to a waiver. Employer's remedy to contest the findings of the Secretary of Labor and Employment or his duly authorized representatives is the presentation of documentary evidence, i.e. payrolls, SSS payment receipts. 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. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage 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. 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. 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. Art. 129. Recovery of wages, simple money claims and other benefits. The Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide: 1.
2. 3. 4.
any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, provided that the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). owing to an employee or person employed in domestic or household service or househelper under this Code arising from employer-employee relations complaint does not include a claim for reinstatement; and
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 (1) Secretary of Labor and Employment or (2) the Regional Director or (3) 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. 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) Art. 217. Jurisdiction of the Labor Arbiters and the Commission. The Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for
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www.howardscasedigests.webs.com decision without extension the following cases involving all workers, whether agricultural or non-agricultural: Unfair labor practice cases; Termination disputes; If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
mentioned in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. In that case, a license or authority from POEA is needed. License – means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency.
Authority – 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. Art. 18. Ban on direct-hiring General Rule: No employer may hire a Filipino worker for overseas employment. Exception:
The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
Through the Boards and entities authorized by the Secretary of Labor
Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.
Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor
Stages in the hearing of cases 1. Labor arbiter; and may be appealed to 2. the National Labor Relations Commission (NLRC); and may be appealed to 3. the Court of Appeals (CA); and may be appealed to 4. the Supreme Court (SC).
Book One PRE-EMPLOYMENT Title I RECRUIT AND PLACEMENT OF WORKERS Chapter I Art. 13. Definitions Worker – any member of the labor force, whether employed or unemployed. Recruitment and placement – any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.
“employment to two or more persons shall be deemed engaged in recruitment and placement” this is only a matter of evidence. Thus, even the employment involves only one person, there is already the engagement of recruitment and placement.
The number of persons dealt with is not the basis in determining whether or not an act constitutes recruitment and placement. Any of the acts
REPUBLIC ACT NO. 8042 Migrant Workers and Overseas Filipinos Act of 1995 An act to institute the policies of overseas employment and establish a higher standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in distress, and for other purposes. SEC. 2. DECLARATION OF POLICIES-
The State does not promote overseas employment as a means to sustain economic growth and achieve national development. The existence of the overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of the Filipino citizens shall not, at any time, be compromised or violated. The State, therefore, shall continuously create local employment opportunities and promote the equitable distribution of wealth and the benefits of development.
SEC. 3. DEFINITIONS Migrant worker – a person who is to be engaged, is engaged or has been engaged in a renumerated activity in a state of which he or she is not a legal resident to be used interchangeably with overseas Filipino worker. Overseas Filipinos – dependents of migrant workers and other Filipino nationals abroad who are in distress as mentioned in Sections 24 and 26 of this Act.
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www.howardscasedigests.webs.com considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reasons as determined by the Department of Labor and Employment; and (m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. II. ILLEGAL RECRUITMENT
Sec. 6. DEFINITIONS Illegal recruitment – any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-license or non-holder of authority. Provided, that such non-license or non-holder, who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any persons, whether a non-licensee, non-holder, licensee or holder of authority. (a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay any amount greater than that actually received by him as a loan or advance;
Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic sabotage.
Syndicate – is illegal recruitment carried out by a group of three (3) or more persons conspiring or confederating with one another. Large scale – is illegal recruitment committed against three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are the principals, accomplices and accessories.
In case of juridical persons, the officers having control, management or direction of their business shall be liable.
An employee who was merely acting under the direction of his superiors and was unaware that his acts constituted a crime may not be held criminally liable.
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment of placement of workers in jobs harmful to public health or morality or to dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly on indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial
SEC. 7. PENALTIES (a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00). (b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein. Provided, however, that the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or nonholder of authority. SEC. 8. PROHIBITION EMPLOYEES
ON
OFFICIALS
AND
It shall be unlawful for: 1.
any official or employee of the Department of Labor and Employment, the Philippine Overseas Employment Administration, or the Overseas Workers Welfare Administration, or the Department of Foreign Affairs, or other government agencies involved in the implementation of this Act,
2.
or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting migrant workers as defined in this Act. The penalties shall be imposed upon them.
SEC. 9. VENUE A criminal action arising from illegal recruitment as defined
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www.howardscasedigests.webs.com herein shall be filed with the Regional Trial Court of the province or city where the offense was committed or where the offended party actually resides at the same time of the commission of the offense: Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. Provided, however, That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act.
SEC. 15. REPATRIATION OF EMERGENCY REPATRIATION FUND
The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or local agency.
However, in cases where the termination of employment is due solely to the fault of the worker, the principal/employer or agency shall not in any manner be responsible for the repatriation of the former and/or his belongings.
The Overseas Workers Welfare Administration (OWWA), in coordination with appropriate international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the OWWA.
Parties to overseas employment contracts are allowed to agree on terms and conditions, but the stipulations should not contradict Philippine law, public policy and morals.
The Welfare Fund for Overseas Workers Administration (OWWA) was intended to provide social welfare services.
The principal agency has to advance the air transport fare to the Philippines and immediately bring back the workers, as needed. If the cause of termination is due solely to the fault of the worker, the principal or agency may recover the cost of repatriation from the worker after return to the country. They cannot remain stranded in a foreign land just because of a pending legal proceeding (Equi-Asia Placement Inc. vs. DFA and DOLE, GR No. 152214, September 19, 2006).
SEC. 10. MONEY CLAIMS But withstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employeremployee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several.
The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. Non-compliance with the mandatory periods for resolutions of cases provided under this section shall subject the responsible officials to any or all of the following penalties:
(a) The salary of any such official who fails to render his decision or resolutions within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; (b) Suspension for not more than ninety (90) days; or (c) Dismissal from the service with disqualifications to hold any appointive public office for five (5) years. SEC. 12. PRESCRIPTIVE PERIODS
Illegal recruitment cases under this Act shall prescribe in five (5) years: Provided, however, That illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years.
WORKERS;
Chapter II REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES Art. 25. Private sector participation in the recruitment and placement of workers. 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. Art. 26. Travel agencies prohibited to recruit. Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.
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www.howardscasedigests.webs.com 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.
Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.
A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with foreign principal.
Even if the recruitment agency and the principal had already ended their agency agreement at the tim the worker was injured, the recruitment agency may still be sued for violation of the employment contract, if no notice of the agency agreement's termination was given to the employee.
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.
Chapter III MISCELLANEOUS PROVISIONS
Art. 29. Non-transferability of license or authority.
Art. 36. Regulatory power.
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.
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.
Art. 30. Registration fees.
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.
The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. 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. 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. 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. Art. 34. Prohibited practices.
These prohibited acts constitutes illegal recruitment as redefined by RA No. 8042.
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
Art. 37. Visitorial Power.
Art. 38. Illegal recruitment.
Such acts are already contained in RA No. 8042.
Title II EMPLOYMENT OF NON-RESIDENT ALIENS 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. Art. 41. Prohibition against transfer of employment After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. 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
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www.howardscasedigests.webs.com the provisions of Articles 289 and 290 of the Labor Code.
agreement.
In addition, the alien worker shall be subject to deportation after service of his sentence.
Upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment.
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 xxxx. The Secretary of Labor shall then determine if they are entitled to an employment permit. Permits to be issued: Alien Employment Permit (AEP) – for non-resident alien Alien Employment Registration Certificate (AERC) – for resident alien BOOK TWO HUMAN RESOURCES DEVELOPMENT PROGRAM Title II TRAINING WORKERS
Art. 66. Appeal to the Employment.
Secretary
of Labor and
The decision of the authorized agency of the Department of Labor and Employment may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. Art. 67. Exhaustion of administrative remedies.
AND
EMPLOYMENT
OF
SPECIAL
Chapter I APPRENTICES
No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies.
Art. 58. Definition of Terms.
Art. 70. Voluntary organization programs; exemptions.
Apprenticeship – practical training on the job supplemented by related theoretical instruction.
General rule:
of
apprenticeship
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.
The organization of apprenticeship program shall be primarily a voluntary undertaking by employers;
Apprenticeable occupation – 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.
Exceptions:
Art. 59. Qualifications of apprentice. (a) Be at least fourteen (14) years of age; (b) Possess vocational aptitude appropriate tests; and
and
capacity
for
(c) Possess the ability to comprehend and follow oral and written instructions. Art. 60. Employment of apprentices. Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. Art. 61. Contents of apprenticeship agreements. Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. The period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of Labor and Employment. The Department shall develop standard model programs of apprenticeship. Art. 65. Investigation of violation of apprenticeship
(a) When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and Employment as the need arises; and (b) Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs. Art. 71. Deductibility of training costs An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program:
Provided: That such program is duly recognized by the Department of Labor and Employment:
Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and ◦
Provided, finally, That the person or enterprise who wishes to avail himself or
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industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months.
Art. 72. Apprentices without compensation.
Art. 74. When learners may be hired.
The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation
Learners may be employed when:
(a) whose training on the job is required by ◦
the school or
◦
training program curriculum
1.
No experienced workers are available;
2.
The employment of learners is necessary to prevent curtailment of employment opportunities; and,
3.
The employment does not create unfair competition in terms of labor costs or impair or lower working standards.
(b) or as requisite for ◦
graduation or
Art. 75. Learnership agreement.
◦
board examination.
Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include:
Notes:
In relation to Art. 72, the Implementing Rules provide that there is no employer-employee relationship between students on one hand, and schools on the other, where there is written agreement under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities to finish their chosen courses under such agreement. However, in the case of Filamer Christian Institute vs. Hon. Intermediate Apellate Court, et. al., GR No. 75112, August 17, 1992, the Supreme Court that the applicable law was Art. 2180 of the Civil Code and not the Labor Code's implementing rule. Under Art. 2180, an injured party shall have recourse against the servant as well as the petitioners school for whom, at the time of incident, the servant was performing an act in furtherance of the interest and for the benefit of the school.
Four-Fold Test Relationship
in
Determining
Employer-Employee
1.
the selection and engagement of the employee
2.
the payment of wages
3.
the power of dismissal
4.
the employer's power to control with respect to the means and methods by which the work is to be accomplished (Brotherhood vs. Zamora)
The names and addresses of the learners;
The duration of the learnership period, which shall not exceed three (3) months;
The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and
A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership.
All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. Art. 76. Learners in piecework. Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. Art. 77. Penalty clause. Any violation of this Chapter or its implementing rules and regulations shall be subject to the general penalty clause provided for in this Code.
Chapter II LEARNERS Art. 73. Learners defined. Learners – persons hired as trainees in semi-skilled and other
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www.howardscasedigests.webs.com Learnership vs. Apprenticeship
Learnership
Apprenticeship
Similarities:
Both mean training periods for jobs requiring skills that can be acquired through actual work experience Both may be paid wages twenty-five percent lower than the applicable minimum wage
Similarities:
Both mean training periods for jobs requiring skills that can be acquired through actual work experience
Both may be paid wages twenty-five percent lower than the applicable minimum wage
Distinctions:
A learner trains in semi-skilled job or in industrial occupations that require
Allowed even for non technical jobs Training shall not exceed three months
Distinctions:
An apprentice trains in a highly skilled job or in a job found only in highly technical industry
A learner is not an apprentice
An employer is committed to hire the learner-trainee as an employee after the training period
Allowed only in highly technical industries
Training exceeds three months
Conceptually, an apprentice is also a learner In apprenticeship, no such commitment exists
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Chapter III HANDICAPPED WORKERS
Art. 136. Stipulation against marriage.
Art. 79. When employable.
It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
Handicapped workers may be employed:
Art. 139. Minimum employable age.
Art. 78. Definition. Handicapped workers – those whose earning capacity is impaired by age or physical or mental deficiency or injury.
1.
When their employment is necessary to prevent curtailment of employment opportunities; and,
2.
When it does not create unfair competition in labor costs or impair or lower working standards.
Art. 80. Employment agreement. Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:
The names and addresses of the handicapped workers to be employed;
The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage;
The duration of employment period; and
The work to be performed by handicapped workers.
(a) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. (b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. (c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment. Art. 140. Prohibition against child discrimination. No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.
The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative. Art. 81. Eligibility for apprenticeship. Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if:
their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
Art. 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
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REPUBLIC ACT NO. 9231 Law Eliminating the Worst Forms of Child Labor Section 2. Section 12 of the same Act, as amended, is hereby further amended to read as follows:
employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.
"Sec. 2. Employment of Children -
"For purposes of this Article, the term
General Rule: Children below fifteen (15) years of age shall not be employed
Child – shall apply to “all persons under eighteen (18) years of age.”
except:
Section 3. The same Act, as amended, is hereby further amended by adding new sections to be denominated as Sections 12-A, 12-B, 12-C, and 12-D to read as follows:
1. When a child works directly under the: (a) sole responsibility of his/her parents or legal guardian and (b) where only members of his/her family are employed: Provided, however, That his/her (c) employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That (d) the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or
2. Where a child's (a) employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the (b) employment contract is concluded by the child's parents or legal guardian, (c) with the express agreement of the child concerned, if possible, and the (d) approval of the Department of Labor and Employment: Provided, further, That the (e) following requirements in all instances are strictly complied with:
"Sec. 2-A. Hours of Work of a Working Child. - Under the exceptions provided in Section 12 of this Act, as amended:
"(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: Provided, That the work shall not be more than four (4) hours at any given day;
"(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;
"(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day.
"(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
"Sec. 12-D. Prohibition Against Worst Forms of Child Labor. - No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following:
"(c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
"(1) All forms of slavery, as defined under the "Antitrafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or
"In the above-exceptional cases where any such child may be
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"(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or
"(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or
"(4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it:
"i) Involves the manufacture or handling of explosives and other pyrotechnic products."
Section 5. Section 14 of the same Act is hereby amended to read as follows:
"Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. -
No child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography."
"a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or BOOK THREE CONDITIONS OF EMPLOYMENT "b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
Title I WORKING CONDITIONS AND REST PERIODS Chapter I HOURS OF WORK
"c) Is performed underground, underwater or at dangerous heights; or
Art. 82. Coverage. The provisions of this Title
"d) Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or
General Rule: Working Conditions and rest periods shall apply to employees in all establishments and undertakings whether for profit or not. Exceptions:
"e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
"f) Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or
"g) Is performed under particularly difficult conditions; or
1.
government employees
2.
managerial employees
3.
non-agricultural field personnel
4.
officers or members of managerial staff
5.
domestic helpers and persons in the personal service of another, and
6.
workers who are paid by results
Managerial employees – 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.
"h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or
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Field personnel – those 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. Law prevails over a contract The existence of a employer-employee relationship is not a matter of stipulation; it is a question of law. Employer-employee relationship is also a question of fact – depends upon the fact of its case. Employer-employee relationship may exist regardless of the nature of the activities involved. The kind of work is not definitive test of whether the worker is an employee or not. Employer – includes any person acting in the interest of an employer in relation to an employee… and an “employee” includes any individual employed by an employer (Art. 97) Elements of “tests” of employment relationship
Modes of Compensation, Not a test of Employment Status Employment relationship determination is another
is
one
thing,
pay
Piece-rate, “boundary”, and “pakyaw” are merely methods of pay computation and do not prove whether the payee is an employee or not. “Pakiao” does not make petitioners independent contractors. Pakiao workers are considered employees as long as the employer exercises control over the means by which such workers are to perform their work. (Zamudio v. NLRC, March 25, 1990) exercise of Employment Relationship Determined by Law, Not by Contract (even if the parties call their contract a “Contract of Lease of Services” under Art. 1642 of the Civil Code, the factual existence of an employer-employee relationship still prevail) WHEN EMPLOYMENT RELATIONSHIP PRESENT 1.
Salaried Insurance Agents
2.
School Teachers – university controls the work of the members of its faculty)
3.
Jeepney Driver, Taxi Driver, Barber –jeepney owners/operators exercise supervision and control over their drivers. The owner as holder of the certificate of public convenience must see to it that the driver must follows the route prescribed by the franchising authority and the rules promulgated as regards its operation.
a. the selection and engagement of the employee
4.
Piece-rate Workers
b. the payment of wages
5.
Street-hired Cargadores (note: wielded the power of dismissal)
6.
Fishermen
7.
Workers in Movie Projects
“Right of control test” – where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end. The existing economic conditions prevailing between the parties (certain economic parameters)– ex. The inclusion of the employee in the payrolls, in determining the relationship of employer-employee relationship. “four fold test”
c.
the power of dismissal
d. the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished
(therefore entitled to the protection of the law and could not just be terminated without valid and justifiable reason)
Evidence of Employment: Identification Card, Vouchers, SSS Registration, Memorandum In administrative and quasi-judicial proceedings, “substantial evidence” is sufficient as a basis for judgment on the existence of employer-employee relationship. No particular form to evidence is required to prove the existence of such relationship. Any competence and relevant evidence to prove the relationship may be admitted. (domasig vs. NLRC, Sept. 16, 1996)
1
LABOR UNION AND UNREGISTERED ASSOCIATION AS EMPLOYER (Bautista v. Inciong and Orlando Farm Grower v. NLRC.)
2
WHEN EMPLOYMENT RELATIONSHIP ABSENT; JOB CONTRACTING OR INDEPENDENT CONTRACTOR) In labor only contracting the employer-employee relationship is between the workers and the enterprise to which they are supplied.
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3
4
GENERAL RIGHT OF EMPLOYER OVER CONDITIONS OF EMPLOYMENT – except as limited by special law, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and discipline, dismissal and recall of workers. (San Miguel Brewery Sale v. Ople) So long as a company’s prerogatives are exercised in good faith for the advancement of employer’s interest and not for the purpose of defeating or circumventing the right of the employees under special laws or under valid agreements, the SC will uphold them. (San Miguel Brewery Sale v. Ople)
5
Supervisors, like managers, not entitled to overtime pay.
6
A taxi driver who is not observing any working hour is not covered by the eight-hour Labor Law.
Art. 84. Hours worked. Hours worked shall include: (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. (c) Rest periods of short duration during working hours. Rest periods of short duration during working hours shall be counted as hours worked.
Compressed Work Week
Resorted to by the employer to prevent serious losses due to causes beyond his control.
Instead of working 6 days a week, the employees will be regularly working for less than 6 days but each workday exceeds 8 hours. For the hours exceeding 8 in a workday, the employees waive their OT pay because, in return, they will no longer incur transport and other expenses.
Allowed on condition that it is freely agreed upon between the employer and majority of the employees. Further, the arrangement should not diminish the employees' monthly or daily pay or their established employment benefits.
Extended workday in CWW should not exceed 12 work hours. Work exceeding 12 hrs in a day or 48 hrs in a week should be considered OT.
Art. 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day. General Rule applicable to health personnel: 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, Exception: 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. Health personnel for the purpose of Art. 38 of the Labor Code, they include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Part-time work – the wage and the benefits of a part-timer are in proportion to the number of hours worked. Forty-hour work week would not be applicable if there is a training agreement between the resident physician and the hospital and the training program is duly accredited or approved by the appropriate government agency.
Waiting Time (a) Waiting time spent by an employee shall be considered as working time if: ◦
waiting is an integral part of his work, or
◦
the employer is required or engaged by the employer to wait.
(b) Working while on call – an employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose.
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Art. 85. Meal periods.
3.
managerial employees;
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.
4.
field personnel and other employees whose time and performance is unsupervised by the employer; and,
5.
domestic helpers, and persons in the personal service of another.
General Rule: Not less than 1 hour time-off for regular meals is non-compensable.
Except: Meal period of not less than 20 minutes in the following cases is compensable hours worked.
(a) Where the work is nonmanual work in nature or does not involve strenuous physical exertion; (b) Where the establishment regularly operates not less than sixteen 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; and, (d) Where the work is necessary to prevent serious loss of perishable goods.
Rest periods or coffee breaks running from 5 to 20 minutes are considered as compensable working time.
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.
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. Reason: Offsetting the undertime hours against OT hours would result in undue deprivation of the employee's extra pay for OT work.
To shorten meal time to less than 20 minutes is not allowed. If the so-called “meal time” is less than 20 minutes, it becomes only a rest period.
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.
Art. 87. Overtime work.
If work done between 10 pm and 6 am is OT work, the NSD should be based on the OT rate.
Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases: 1.
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;
2.
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;
3.
When there is urgent work to be performed on machines, installations, or equipment, in order to
Employees Not Covered by Night Shift Differential 1.
government employees;
2.
retail and service establishments regularly employing not more than five (5) workers;
Right to OT cannot be waived. But when the alleged waiver of OT pay is in consideration of benefits and privileges which may even exceed the OT pay, the waiver may be permitted.
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employee as to his weekly day of rest shall be respected by the employer if the same is based on religious grounds.
avoid serious loss or damage to the employer or some other cause of similar nature; 4.
When the work is necessary to prevent loss or damage to perishable goods; and,
5.
Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.
6.
When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality or work is dependent thereon.
Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter. 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. Regular Wage – includes the cash wage only, without deduction on account of facilities provided by the employer. Chapter II WEEKLY REST PERIODS Art. 91. Right to weekly rest day. It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.
Business on Sundays/Holidays - all establishments and enterprises may operate or open for business on Sunday and Holidays provided that the employees are given the weekly rest day and the befits as provided in this Rule. Weekly Rest Day – every employer shall give his employees a rest period of not less than 24 consecutive hours after every six consecutive normal work days. Preference of employee – the preference of the
◦
The employee shall make known his preference to the employer in writing at least 7 days before the desired effectivity of the initial rest day so preferred.
◦
Where, however, the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the undertaking and the employer cannot normally be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of his choice for at least 2 days in a month.
Schedules of Rest Day shall be made known to the employees through written notices posted conspicuously in the work place at least one week before they become effective.
Art. 92. When employer may require work on a rest day. General Rule: The employer cannot compel employees to work on a rest day. Exceptions: The employer may require his employees to work on any day: 1.
In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety;
2.
In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer;
3.
In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;
4.
To prevent loss or damage to perishable goods;
5.
Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer;
6.
Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment; and
7.
When the work is necessary to avail of favorable
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weather or environmental conditions where performance or quality of work is dependent thereon.
When an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, he shall express such desire in writing, subject to payment of additional compensation.
Employees Not Covered by Holidays Pay 1.
government employees;
2.
retail and service establishments regularly employing less than ten (10) workers;
3.
managerial employees;
Art. 93. Compensation for rest day, Sunday or holiday work.
4.
field personnel and other employees whose time and performance is unsupervised by the employer; and,
Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.
5.
domestic helpers, and persons in the personal service of another.
When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays. Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage. Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. Chapter III HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES Art. 94. Right to holiday pay. Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers; The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and As used in this Article, "holiday" includes: New Year’s Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election.
Absences
Employee on leave of absence with pay – entitled to the benefit provided herein.
Employee on leave of absence without pay on the day immediately preceding a regular holiday – may not be paid the required holiday pay if he has not worked on such regular holiday.
Where the day immediately preceding the holiday is a non-working day in the establishment or the sche4duled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.
Temporary or Periodic Shutdown and Temporary Cessation of Work (I.e inventory, repair of equipment) – regular holidays falling within this period is compensable.
Temporary or Periodic Shutdown and Temporary Cessation of Work Due to Business Reverses – regular holidays falling within this period is not compensable.
Holiday Pay of Certain Employees (a) Private School Teachers including faculty members of college and universities – may not be paid regular holidays during semestral vacations. Paid for the regular holidays during Christmas vacation. (b) Employee Paid by Results (Payment on Piece Work) – holiday pay shall not be less than his average daily earnings for the last 7 actual working days preceding the regular holiday; Provided however, that in no case shall the holiday pay be less than the applicable
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statutory minimum wage rate.
(c) Seasonal Workers – may not be paid the required holiday pay during off-season when they are not at work. (d) Workers Without Regular Working Days – entitled to the benefits. Double Holiday – an employee who is entitled to holiday pay should receive at least 200% of his basic wage even if he did not work on that day, provided, he was present or on leave with pay on the preceding work day. If he worked, he is entitled to 300% of his basic wage. Successive Regular Holidays – where there are two (2) successive regular holidays, an employee may not be paid for both holidays if he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday, in which case he is entitled to his holiday pay on the second holiday.
Worked: o 1st 8 hrs 200% o Excess of 8 hrs +30% of hourly rate on said day
b. If it is employee’s rest day: Unworked: 100% Worked: o 1st 8 hrs +30% of 200% o Excess of 8 hrs +30% of hourly rate on said day 2.
To be entitled to two (2) successive holidays, employee must: (1) be present on the day immediately preceding the 1st holiday; or (2) be on leave with pay.
Special Days
Unworked – no pay unless there is a favorable company policy, practice or CBA granting payment of wages on special days even if unworked.
Worked o
Holidays 1. New Year’s day 2. Maundy Thursday 3. Good Friday 4. Araw ng Kagitingan 5. Labor Day 6. Independence Day 7. National heroes Day August 8. Bonifacio Day 9. Eidul Fit’r date 10. Christmas Day 11. Rizal Day
-
Jan. 1 Movable date Movable date April 9 May 1 June 12 Last Sunday of
Special Non-working Days Special Public Holidays Special national Holiday All Saint’s Day Last Day of the Year Ninoy Aquino Day
Falling on employee’s rest day and if worked
Nov. 30 Movable o
-
Dec. 25 Dec. 30 3.
1st 8 hrs +50% of the daily rate of 100% Excess of 8 hrs +30% of hourly rate on said day
Special Working Holidays – only basic rate
Art. 95. Right to service incentive leave. -
Nov. 1 Dec. 31 Aug. 21
Rules on Payment of Holiday Pay 1.
o -
Special Days 1. 2. 3. 4. 5. 6.
o
1st 8 hrs +30% of the daily rate of 100% Excess of 8 hrs +30% of hourly rate on said day
Regular Holidays
a. If it is employee’s regular work day: Unworked: -
100%
Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the
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viability or financial condition of such establishment. The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.
Service Incentive Leave (SIL) is commutable to its money equivalent if not used or exhausted at the end of the year.
At least 1 year service – service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working. Employees Not Covered by SIL
regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid except to managerial employees. Distribution
1. government employees;
85% distributed equally among the covered employees. 15% for the disposition by management to answer losses and breakages and distribution to managerial employees at the discretion of the management in the latter case. Distributed and paid to the employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. Supervisors share in the 15%. The Labor Code speaks of “management,” not “managerial employees.”
2. managerial employees; 3. field personnel and other employees whose time and performance is unsupervised by the employer; 4. domestic helpers, and persons in the personal service of another; 5. those who are already enjoying the benefit herein provided; 6. those enjoying vacation leave with pay of at least five (5) days;
Vacation Leave / Sick Leave – not required by law and depends on voluntary employer policy or collective bargaining. Solo Parent Leave – a parental leave of not more than 7 working days every years shall be granted to any solo parent employee who has rendered service of at least one (1) year.
7. those employed in establishments regularly employing less than ten (10) employees; and, 8. those exempted by the Secretary of Labor.
Art. 96. Service charges. All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages. Service Charges – apply only to establishments collecting service charges such as hotels, restaurants, lodging houses, nightclubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government. Employees covered – all employees of employers are covered,
Solo parent – woman who gives birth as a result of rape or crimes against chastity, a widow or widower, a spouse separated legally or de facto for at least one year and so forth. The claimant must show that he/she is left alone with the responsibility of parenthood.
Leave Under RA 9262 (Anti-Violence Against Women and their Children Act of 2004) – allows the victim of violence, which may be physical, sexual, or psychological, to apply for the issuance of a protection order. If suchvictim is an employee, she is entitled to a paid leave of up to 10 days in addition to other paid leaves under the Labor Code, other laws and company policies.
The employee has to submit a certification from the Punong Barangay or Kagawad, or prosecutor or clerk of court that an action under RA 9262 has been filed and is pending.
Paternity Leave Act of 1996 (R.A. No. 88187) It grants seven days of paternity leave with full pay to married male employees in the private and public sectors. The conditions for entitlement are: (a) the claimant, married male employee is employed at the time of delivery of his child;
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are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.
(b) he is cohabiting with his wife at the time she gives birth or suffers a miscarriage; (c) he has applied for paternity leave in accordance with Sec. 4 of the law's implementing rules; (d) his wife has given birth or suffered a miscarriage.
In the Revised Implementing Rules issued by DOLE and the Department of Health, abortion has been delisted from the coverage of paternity leave law.
Moreover, the entitlement of leave is seven calendar days.
PRESIDENTIAL DECREE NO. 851 Requiring All Employers to Pay Their Employees A 13thMonth Pay
As used herein, workers paid on piece-rate basis shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. The term "its equivalent" as used in paragraph c) hereof shall include Christmas bonus, mid-year bonus nd other cash bonuses amounting to not less than 1/12th of the basic salary but shall not include cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits. Minimum amount - the minimum 13th month pay required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year.
Payment of 13th-month Pay. - All employers are hereby required to pay all their rank-and-file employees a 13thmonth pay not later than December 24 of every year.
Basic Salary - for the purpose of computing the 13th month pay shall include all remuneration or earning paid by his employer for services rendered but does not include allowances and monetary benefits which are considered or integrated as part of the regular or basic salary, such as the cash equivalent of unused vacation and sick leave credits, overtime premium, night differential and holiday pay, and cost of living allowances.
Thirteenth-month pay – shall mean one twelfth (1/12) of the basic salary of an employee within a calendar year;
13th-month Pay for Certain Types of Employees
Revised Guidelines on the Implementation of the 13th Month pay Law
Employers covered. - The Decree shall apply to all employers except to: (a) The Government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government;
a. Employees paid by results – entitled to the mandated 13th-month pay based on their total earnings during the calendar year. b. Those with multiple employer – entitled to the required 13th month pay from all their private employers regardless of their total earnings from each or all of their employers. c.
Private school teachers – entitled to the required 13th month pay if they have rendered service for at least one (1) month within a year.
(b) Employers already paying their employees 13month pay or more in a calendar year or its equivalent at the time of this issuance; (c) Employers of household helpers and persons in the personal service of another in relation to such workers; and (d) Employers of those who are paid on purely commission, boundary, or task basis, and those who
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13th-month Pay of resigned or Separated Employee
Wage Includes Facilities or Commodities (Art. 97 (f)
Such resigned or separated employee is entitled of the amount equivalent to 1/12 of his total basic salary earned during such year when he was still working with his employer.
Facilities – include articles or services (such as board and lodging) for the benefit of the employee or his family (IRR of the Labor Code).
Consistent with the principle of equity, the employer can also require the employee to demand the employee to clear himself of all the liabilities and accountabilities upon the termination of the relationship.
Facilities as Distinguished from Supplements Supplement – when the benefit or privilege given to the employee constitute an extra remuneration over and above his basic or ordinary earning or wage. It is not wage deductible. Requirements for facilities to be wage-deductible
Title II WAGES Chapter I PRELIMINARY MATTERS
(a) Proof must be shown that such facilities are customarily furnished by the trade; (b) Provision of deductible facilities must be voluntarily accepted in writing by the employee; and, (c) facilities must be charged at fair and reasonable value as determined by the Secretary of Labor and Employment.
Art. 97. Definitions. As used in this Title:
Art. 98. Application of Title.
Person – means an individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons.
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.
Employer – includes any person acting directly or 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. Employee – employer.
includes any individual employed by an
The intention of this article is to exclude small businesses that probably cannot afford to pay the wage rates set by law.
Chapter II MINIMUM WAGE RATES
Employ – includes to suffer or permit to work.
Art. 99. Regional minimum wages.
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.
The minimum wage rates for agricultural and nonagricultural 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).
Who sets minimum wage? o Regional Tripartite Wages and Productivity Board o Congress
Minimum wage – the lowest wage rate fixed by law that an employer can pay his employees. Complaint may be brought before the DOLE regional office (Art. 129) or Labor Arbiter (Art. 217).
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A worker is daily-paid if he gets paid only for days he actually worked.
But if the amount is lower than the legal daily rate, the employer must make up the difference.
A worker is monthly-paid if his monthly rate covers all the days of the month.
Piece-rate Employees are Entitled to the Following Minimum Wage and Benefits
Agricultural wage rates are generally lower than the industrial. Agricultural rate applies to farm work from land preparation to harvesting; industrial rate applies to manufacturing or processing of farm products.
(a) the applicable statutory minimum daily rate (b) yearly service incentive leave of five (5) days with pay (c) night shift differential pay (d) holiday pay (e) meal and rest periods (f) overtime pay (conditional) (g) premium pay (h) 13th month pay (i) other benefits granted by law, individual or collective agreement or company policy or practice.
Art. 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. Non-diminution rule – it essentially means that benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten. Exceptions: (a) if the practice is due to error (but it must be done soon after the discovery of the error); (b) the benefit being claimed is a contingent or conditional benefit Art. 101. Payment by results.
Chapter III PAYMENT OF WAGES Art. 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.
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. Piece-rate workers may be subdivided into two categories (a) those who are paid piece rates which are prescribed in Piece Rate Orders issued by DOLE; (b) those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE. Under the first category, wages or earnings are determined by simply multiplying the number of pieces produced by the pay rate per piece. Under the second category, the number of pieces produced is multiplied by the rate per piece as determined by the employer.
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may be paid through another person under written authority given by the worker for the purpose; or
Art. 103. Time of payment. General Rule: Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days.
Exception: If on account of force majeure or circumstances beyond the employer’s 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.
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 conditions, in the absence of a collective bargaining agreement or arbitration award: (a) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; (b) That final settlement is made upon completion of the work. The IRR of the Code requires every employer to pay his employees through payroll. They payroll should clearly, among other data, the employee's pay rate, the deductions made, and the amount actually paid. Also required are employees' individual time records.
Art. 106. Contractor or subcontractor. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code:
Art. 104. Place of payment.
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.
the employer shall be jointly and severally liable with his contractor or subcontractor to such employees---
General Rule: Payment of wages shall be made at or near the place of undertaking
▪
to the extent of the work performed under the contract, in the
Exception: As otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages.
▪
same manner and extent that he is liable to employees directly employed by him.
Art. 105. Direct payment of wages. General Rule: Wages shall be paid directly to the workers to whom they are due. Exceptions:
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
The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contractingout of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between (a) labor-only contracting and (b) 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.
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(a) Labor-only contracting ( which is prohibited under DO No. 18-02)
performance or completion of a specific job, work or service within a definite or predetermined period regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.
(b) Job Contracting (which is permissible under DO. No. 18-02)
More Contracting Prohibitions Under Section 6 of D.O. No. 18-02
Labor-only contracting – where the person supplying workers to an employer:
(a) contracting out that results in termination of regular employees and reduction of work hours or reduction or splitting of the bargaining unit (such contracting out is prohibited only if it is not done in good faith and not justified by exigencies of the business);
Types of Contracting-out of Labor
(a) does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and (b) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. ▪
In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
(c) the contractor does not exercise the right to control the performance of the work of the contractual employee (as provided in DO No. 18-02). Job Contractor – someone who: (a) carries on an independent business and undertakes the contracted work on his own manner and method, free from the control and direction of his employer or principal in all the matters connected with the performance of the work, except as to the results thereof; and (b) has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials necessary to conduct the business.
Court decisions have been using “job contractor” and “independent contractor” interchangeably.
To contract out is a proprietary right of employer to exercise an inherent management prerogative, unless such employer is acting in a malicious or arbitrary manner. The employer has the right to “promote efficiency and attain economy” and to determine whether services “should be performed by its personnel or contracted to outside agencies.” Unless it is proved that management acted in a malicious or arbitrary manner, “ the Court will not interfere with the exercise of judgment by an employer.”
(b) requiring the contractor's employee to perform, aside from his assigned functions, the functions of regular employees; (c) requiring the contractor's employee to sign a waiver of labor standards, or a quitclaim freeing the principal or contractor from liability for future claims; (d) make the contractor's employee sign a contract fixing the period of employment to a term shorter than the term of the contract between the principal and the contractor unless the latter contract is divisible into phases for which substantially different skills are required and this (fact) is made known to the employee at the time of the engagement. All in all, the additional prohibitions refer to schemes which: (a) skirt around the workers' rights to security of tenure and to self-organize, or which (b) take advantage of the economic hardship of the contractual employees. They are circumventive and exploitative schemes.
Art. 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.
Art. 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.
Contracting – an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the
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Art. 109. Solidary liability.
Art. 113. Wage deduction.
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.
General Rule: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees.
If the liability is in the nature of penalty, such as backwages and separation pay because of a wrongful dismissal, the liability should be solely that of the contractor if there is no proof that the principal conspired with the contractor in committing the wrongful dismissal of the contractor's worker. Art. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employer’s 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) Liquidation – is what happens when a corporation terminates its corporate existence: it settles and closes its affairs by disposing of its assets and paying off its debts, including claims of its employees. Art. 111. Attorney’s fees. In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered. Chapter IV PROHIBITIONS REGARDING WAGES
Exceptions: (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; (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. Additional to the Authorized Deductions (a) In cases where the employee is indebted to the employer, where such indebtedness has become due and demandable; (b) In court awards, wages may be subject of execution or attachment, but only for debts incurred for food, shelter, clothing, and medical attendance; (c) Withholding tax; (d) Salary deductions of a member of a legally established cooperative; (e) Deductions for payment to third persons, upon written authorization of the employee; (f) Union dues; (g) Agency fee; (h) Deductions for value of meal and other facilities;
Art. 112. Non-interference in disposal of wages.
(i) Deductions for loss or damage;
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.
(j) SSS, Medicare, PagIBIG premiums. Under the circumstance of employee's payment obligation to a third person, the employer may agree to make deduction but is not obliged to do so. He must not receive any pecuniary benefit, directly or indirectly, from the transaction.
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Art. 114. Deposits for loss or damage. General Rule: 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. Exceptions: 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.
of employment or retention in employment. Art. 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.
Art. 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. Four Conditions to Met Before Payments for Lost or Damaged Equipment May Be Deducted (a) the employee is shown to be responsible for the loss or damage; (b) the employee is given ample opportunity to show cause why deduction should not be made; (c) the amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage; and, (d) the deduction from the employee's wage does not exceed 20% of the employee's wages in a week.
Art. 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. Chapter V WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION Art. 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).
Art. 116. Withholding of wages and kickbacks prohibited. Art. 121. Powers and functions of the Commission. 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 worker’s consent. The earned wages must be paid on time and in full. The employer cannot refuse to pay the wages because the employee has not yet submitted a required report or has violated certain company policy. The inefficiency or violation can be acted upon in some way but not by withholding the wages. Art. 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
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
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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 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 (a) the Secretary of Labor and Employment as ex-officio chairman, (b) the Director-General of the National Economic and Development Authority (NEDA) as ex-officio vicechairman, (c) 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 Secretariat to 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) Art. 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. Powers and functions of the Regional Boards 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 (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.
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Each Regional Board shall be composed of (a) the Regional Director of the Department of Labor and Employment as chairman, (b) the Regional Directors of the National Economic and Development Authority and the Department of Trade and Industry as vice-chairmen and (c) 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)
Productivity Boards (RTWPB) without the approval of or, worse, contrary to those promulgated by the National Wages and Productivity Commission (NWPC), are ineffectual, void and cannot be the source of rights and privileges. A wage order issued without the required public consultation and newspaper publication is null and void. Refusal or Failure to Comply with a Wage Order (RA 8188)
Refusal or failure to comply with a wage order is punishable ▪ with fine ranging from P25,000 to P1,000.00 or ▪
imprisonment from two to four years or
▪
both fine and imprisonment;
The employer shall further be ordered to pay an amount double the unpaid benefits owing to the employee.
Art. 123. Wage Order. Employees Not Covered by 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.
a. Household or domestic helpers, and workers in the personal service of another; b. Workers and employees in retail/service establishments regularly employing not more than 10 workers; and, c. Workers and employees in new business enterprises outside the NC and export processing zobnes for a period of not more than two or three years.
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) Guidelines issued by the Regional Tripartite Wages and
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Art. 124. Standards/Criteria for minimum wage fixing. The regional minimum wages to be established by the Regional Board shall 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:
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.
(a) The demand for living wages; (b) Wage adjustment vis-à-vis the consumer price index; (c) The cost of living and changes or increases therein;
In cases where there are no collective agreements or recognized labor unions:
(d) The needs of workers and their families;
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.
(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.
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. Wage distortion – means 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.
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.
All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours.
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:
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 – simply means that if the pay advantage of a position over another is removed or significantly reduced by a pay adjustment required by a wage order, such pay advantage should somehow be restored. Job levels – are determined by using such grading factors as skills requirement, degrees of responsibility, knowledge required, working conditions, or some similar factors. The job grades aim to approximate the relative importance of jobs and to pay them accordingly: the higher the job level, the higher the pay grade. If the duly established pay level differentations in the company are obliterated or severely contracted, such that the previous pay gaps are gone or almost gone, then there is salary distortion. Any issue involving wage distortion is not a valid ground for a strike or lockout. Pay disparity of same comparable jobs in different regions cannot be considered a wage distortion. Wage distortion involves comparison of job located in the same region. Examination of alleged salary distortion is limited to jobs or position in the same employer in the same region. Art. 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) Art. 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)
Title III WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES Chapter I EMPLOYMENT OF WOMEN Art. 130. Nightwork prohibition. No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: (a) In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or (b) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or (c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours. Art. 131. Exceptions. The prohibitions prescribed by the preceding Article shall not apply in any of the following cases: (a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; (b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; (c) Where the work is necessary to prevent serious loss of perishable goods;
Art. 127. Non-diminution of benefits.
(d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services;
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)
(e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; (f) Where the women employees are immediate members of the family operating the establishment or undertaking; and
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(g) Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations. Art. 132. Facilities for women. The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to: (a) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; (c) To establish a nursery in a workplace for the benefit of the women employees therein; and (d) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. Art. 133. Maternity leave benefits. (a) Every employer shall grant to any pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months, maternity leave of at least two (2) weeks prior to the expected date of delivery and another four (4) weeks after normal delivery or abortion with full pay based on her regular or average weekly wages. The employer may require from any woman employee applying for maternity leave the production of a medical certificate stating that delivery will probably take place within two weeks. (b) The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may be charged.
Maternity Leave under the SS Law Sec. 14-A. Maternity Leave Benefit. - A female member who has paid at least three (3) monthly contributions in the twelvemonth period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for 60 days or 78 days in case of caesarian delivery, subject to the following conditions: (a) employee shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS; (b) full payment shall be advanced by the employer within 30 days from filing of the maternity leave application; (c) payment of daily maternity benefits shall be a bar to the recovery of sickness benefits to be received; (d) maternity benefits shall be paid only for the first four deliveries or miscarriages; (e) the SSS shall immediately reimburse the employer of 100% of the amount of maternity benefits advanced to the employee; (f) if an employee member should give birth or suffer miscarriage without the required contribution, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. Art. 134. Family planning services; incentives for family planning. (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices. (b) In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
(c) The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after the effectivity of this Code.
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Art. 135. Discrimination prohibited. It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (b) Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989) Art. 136. Stipulation against marriage. It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. Art. 137. Prohibited acts. It shall be unlawful for any employer: (1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. (2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (3) To discharge or refuse the admission of such woman upon returning to her work for fear that she
may again be pregnant. Art. 138. Classification of certain women workers. Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation.
REPUBLIC ACT NO. 7877 An Act Declaring Sexual Harassment Unlawful in the Employment, Education or Training Environment, and for Other Purposes
SECTION 2. Declaration of Policy. - The State shall value the dignity of every individual, enhance the development of its human resources, guarantee full respect for human rights, and uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the employment, education or training environment are hereby declared unlawful. SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. - Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely affect said employee;
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(2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. (b) In an education or training environment, sexual harassment is committed: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act. SECTION 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. - It shall be the duty of the employer or the head of the workrelated, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall: (a) Promulgate appropriate rules and regulations in consultation with and joint1y approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.
(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment. In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, instructors, professors or coaches and students or trainees, as the case may be. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. - The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken. SECTION 6. Independent Action for Damages. - Nothing in this Act shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action for damages and other affirmative relief. SECTION 7. Penalties. - Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than Ten thousand pesos (P10,000) nor more than Twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court. Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
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Chapter II EMPLOYMENT OF MINORS
Art. 143. Minimum wage. Househelpers shall be paid the following minimum wage rates:
Art. 139. Minimum employable age. (a) No child below fifteen (15) years of age shall be employed, except
when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.
(b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. (c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.
(1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities; (2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and (3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993)
Art. 140. Prohibition against child discrimination. No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. Chapter III EMPLOYMENT OF HOUSEHELPERS
Art. 144. Minimum cash wage. The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance.
Art. 141. Coverage. Art. 145. Assignment to non-household work. This Chapter shall apply to all persons rendering services in households for compensation. Domestic or household service – shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. Art. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.
No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein. Art. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary.
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Art. 147. Treatment of househelpers.
Chapter IV EMPLOYMENT OF HOMEWORKERS
The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper. Art. 153. Regulation of industrial homeworkers. Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.
The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the Secretary of Labor and Employment to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them.
Art. 149. Indemnity for unjust termination of services. Art. 154. Regulations of Secretary of Labor. If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. Art. 150. Service of termination notice. If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.
The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved. Art. 155. Distribution of homework. For purposes of this Chapter, the Employer of homeworkers – includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person:
Art. 151. Employment certification.
(1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or
Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.
(2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.
Art. 152. Employment record. The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer.
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