LABOR LAW 1 – LABOR STANDARDS
(FINALS SAMPLEX)
Professor: Atty. Peter-Joey Usita A. DISCUSSION 1. Define, then explain briefly the legal significance of the following: (2016) following: (2016) A. Wage distortion (2016, 2017) SUGGESTED ANSWER: Article 124 of the Labor Code defines Code defines wage distortion as distortion as a situation where an increase in the prescribed wage rates results in the elimination or s ever e contr action 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. The employer and the union shall negotiate to correct the distortions. If there is no union, the employer and the workers shall endeavor to correct such distortions. B. Labor-only contracting SUGGESTED ANSWER: Under Article 106 of the Labor Code, Code , there is labor-only contracting when the person supplying workers to an employer does not have substantial capital or investment and the workers recruited and placed by such person are performing activities which are directly related to the In labor-only contracting, the law creates an employeremployee relationship for a comprehensive purpose to prevent the circumvention of labor laws. The principal is treated as direct employer and becomes solidarily liable with the contractor not only for unpaid wages but also for all the rightful claims of the employee under the law.
C. 24-hour duty doctrine SUGGESTED ANSWER: Under the 24-hour duty doctrine, doctrine, members of the national police by the nature of their functions are technically on duty 24 hours a day except except when they are on vacation leave. Death arising from police service, although not in official line of duty is compensable.
any family member who assumes the responsibility of head of the family. A parental leave of not more than 7 working days every year shall be given to a solo parent who has rendered service of at least 1 year. This leave shall be non-cumulative.
E. Principle of aggravation SUGGESTED ANSWER:
2. How How is wage distortion fixed? (2017) SUGGESTED ANSWER: Under Article 124 of the Labor Code, Code, the employer and the union shall negotiate to correct the distortions. Any dispute arising therefrom should be resolved through grievance procedure under their CBA. If the dispute remains unresolved, it shall be resolved through voluntary arbitration. If there is no union, the employer and the workers shall endeavor to correct such distortions. Any dispute arising therefrom should be resolved through National Conciliation and Mediation Board (NCMB). If it remains unresolved after 10 days, it shall be referred to the NLRC. The formula for resolving wage distortion is as follows: Existing Prescribed Min. Wage = % x Wage = Distortion Adjustment Actual Salary Increase
3. Discuss the benefits provided under the Limited Portability Law. (2017) SUGGESTED ANSWER: R.A. 7699 7699 of the Limited Portability Law Law applies to all worker-members of the SSS and/or GSIS who transfer from one sector to another and who wish to retain their membership in both systems.
For the purpose of determining compensability of injury or death, soldiers and policemen and even firemen, by the nature of their work, may be considered on duty round-theclock. But this doctrine, while it relaxes the workplace factor, does not dispense with the work-connection requisite.
The creditable services or contributions in both systems shall be credited to their service or contribution record in each system, and totalized for the purposes of old-age disability, survivorship, and other benefits in case the covered member does not qualify for any benefits for SSS or GSIS benefits in either or both systems without totalization.
D. Solo parent
Benefits to be paid by the system shall be in proportion to the number of contributions actually remitted to that system.
SUGGESTED ANSWER: The term solo parent refers to a woman who gives birth as a result of rape and other crimes against chastity; a parent left solo or alone with the responsibility of parenthood by reason of death or incapacity of, or abandonment, by spouse, annulment or declaration of nullity of their marriage, or their legal separation; or any other person who solely provides parental care and support to a child or children; or
All contributions paid by such member personally, and those that were paid by his employers to both systems (SSS and GSIS) shall be considered in the processing of benefits which he can claim from either or both systems.
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Professor: Atty. Peter-Joey Usita 4. What is “bonus”? demandable? (2017)
When
may
it
be
legally
SUGGESTED ANSWER:
5. When is contracting or subcontracting considered legitimate under DOLE Administrative Order 18-A, Series of 2011? (2013) SUGGESTED ANSWER: *Under DOLE Administrative Order 174, Series of 2017, contracting or subcontracting shall only be allowed if ALL of the following circumstances concur: (1) The contactor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own re sponsibility, according to its own manner and method; (2) The contractor or subcontractor has substantial capital and/or investment (3) The contractor or subcontractor is free from control and/or direction of the principal in all matters connected with the performance of the work except as to the results thereof; and (4) The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor or subcontractor under labor laws. [*substantially the same as DOLE AO No. 18-A, except as to #1 – previously “must be registered in accordance with the rules”]
6. What is “compassionate visit”? (2013) SUGGESTED ANSWER: When a migrant worker is hospitalized and has been confined for at least 7 consecutive days, he shall be entitled to a compassionate visit by 1 family member or a requested individual. The insurance company shall pay for the transportation cost of the family member or requested individual to the major airport closest to the place of hospitalization of the worker. It is, however, the responsibility of the family member or requested individual to meet all visa and travel document requirements.
employer by way of the exclusive or customary means of ingress or egress. (3) S peci al E rr and R ule – where the e mployee is charged, while on his way to or from his place of employment or at his home, or during his employment, with some duty or special errand connected with his employment. (4) Extra-premises Rule/The Shuttle Bus Rule – where the employer, as an incident to the employment, provides the means of transportation to and from the place of employment.
8. Explain the “no double recovery rule” under the State Insurance Fund. (5pts.) SUGGESTED ANSWER:* The injured employee cannot claim payment twice for the same injury from both the third party and the GSIS or SSS, as the case may be. Simultaneous recovery under the Labor Code and the Civil Code cannot be made. The action is selective and the employee may choose to file the claim under either. But once the election is made, the claimant cannot opt for the other remedy. Note, however, that simultaneous recovery under the Labor Code and the SSS can now be made since PD 1921 has lifted the ban on simultaneous recovery. 9. What is compressed workweek? (2013) SUGGESTED ANSWER: Compressed Work Week (CWW) is an alternative arrangement whereby the normal workweek is reduced to less than six (6) days but the total number of hours per week remains at 48 hours. The normal workday is increased to more than 8 hours but not to exceed 12 hours without corresponding overtime pay. To be valid, the CWW scheme must be expressly and voluntarily supported by majority of the employees affected. If the work is hazardous, a certification is needed that work beyond 8 hours is within the limits of exposure set by DOLE’s occupational safety and health standards. The DOLE must also be duly no tify thereof.
10. a. Discuss the duty of the employer in connection with the meal periods of his employees. (2013) 7. What is the “going and coming rule”? Give t he exceptions to the rule. (2013) SUGGESTED ANSWER: As a general rule, in the absence of special circumstances, the injury sustained by an employee in, going to or coming from, his place of work is not compensable. The exceptions, in which the injury is compensable, are: (1) When the injury is sustained when the employee is proceeding to or from his work in the premises of the employer ; (2) Ingress -Eg ress/Proximity Rule – where the employee is about to enter or about to leave the premises of his
SUGGESTED ANSWER: Article 85 of the Labor Code provides that 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 minutes time-off for their regular meals. It is non-compensable except where during the meal period, the laborers are required to standby for emergency work, or said meal hour is not one of complete rest, such period is considered overtime hours worked.
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Professor: Atty. Peter-Joey Usita b. May the employer shorten the meal period to less than one (1) hour? Explain. (2013) SUGGESTED ANSWER: Yes. The employer may shorten the meal period to less than 1 hour, but should not be less than 20 minutes and the shortened mealtime must be with full pay, under the following instances: (1) Where the work is non-manual work in nature and does not involve strenuous physical exertion; (2) Where the establishment regularly operates not less than 16 hours a day; (3) In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; or (4) Where the work is necessary to prevent serious loss of perishable goods.
B. DISTINGUISH BETWEEN: 1. Labor-only contracting and job contracting. (2017)
SUGGESTED ANSWER:
5. Overtime pay from Premium pay (2013) SUGGESTED ANSWER: Overtime pay refers to the additional compensation required by law for work performed beyond eight hours a day. On the other hand, premium pay refers to the additional compensation required by law for work performed within eight hours on non-working days, such as rest days and regular and special holidays.
B. ENUMERATION 1. What are the benefits of a solo parent? (2017) SUGGESTED ANSWER: R.A. 8972 or the Solo Parents’ Welfare Act grants to a solo parent a parental leave of not more than 7 working days every year, provided that the solo parent employee has rendered service of at least 1 year.
SUGGESTED ANSWER:
2. Paternity and Maternity Leave Benefits (2016) SUGGESTED ANSWER: Paternity leave benefits of 7 days with full pay are granted to every married male employee in the private sector for the first four deliveries or miscarriages by his lawful spouse under such terms and conditions as provided by law.
It also provides for the prohibition on employers to discriminate against any solo pa rent employee with respect to terms and conditions of employment on account of his/her status. Moreover, the employers are also mandated to provide for flexible work schedule for solo parents, but the same should not affect the individual and company productivity.
2. What are the benefits of a sen ior citizen? (2017) On the other hand, maternity leave benefits of 60 days(normal delivery) or 78 days(caesarian delivery) with full pay are granted to a female employee for her first four deliveries or miscarriages. To be entitled thereto, she need not be legally married, and must have paid for at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage.
3. Facilities and Supplements (2013, 2016) SUGGESTED ANSWER: Facilities shall include items of expense necessary for the laborer and his family’s existence and subsistence. These are part of the wages and are, therefore, deductible therefrom. On the other hand, supplements are items which constitute extra remuneration or special privileges or benefits given to or received by the laborer over and above his ordinary earnings or wages. These are independent of the wage and are, therefore, not deductible therefrom.
4. Workmen’s Compensation Act and Employees Compensation Law (2016)
SUGGESTED ANSWER:
3. Enumerate the benefits that may be enjoyed by a domestic worker under the new Kasambahay Law. (2013, 2016, 2017) SUGGESTED ANSWER: Under the new Kasambahay Law, a kasambahay is entitled to the following: (MOB-SIR-PABLO) (1) Minimum wage (2) Other mandatory benefits such as Service Incentive Leave (SIL) and 13th month pay (3) Basic necessities including board, lodging and medical attendance (4) Coverage under SSS, PhilHealth and Pag-IBIG laws (5) Freedom from employer’s Interference in disposal of wages (6) Right to exercise Religious beliefs and cultural practices (7) Right to Privacy in all forms of communication and personal effects (8) Freedom from Abuse or any form of physical violence or harassment or any act tending to degrade the dignity.
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LABOR LAW 1 – LABOR STANDARDS
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Professor: Atty. Peter-Joey Usita (9) Opportunity to finish Basic education and access to alternative learning systems. (10) Right to join a Labor organization of his own choosing for mutual aid and collective negotiation. (11) Access to Outside communication during free time, or even during work time in case of emergency.
4. What are the liabilities of a principal in job contracting? (2017)
c. 1/12 of the 13 th month pay due the employee; and d. All other benefits that the employer and employee may agree upon Consequently, as established in Serrano v. Severino Santos Transit, the term one-half (½) month salary shall be computed for 22.5 days for every year of service.
4. Are learners paid 25% less than the minimum wage while apprentices are paid 100%? (2017)
SUGGESTED ANSWER: SUGGESTED ANSWER:
5. What are the legal grounds when the State Insurance Fund may validly deny a claim for compensation made by a covered employee or his dependents? (2013, 2016, 2017)
5. A is residing in QC but works in Mendiola. While waiting for a bus in Marilao, he got swiped by a taxi. Is the death/injury suffered by A compensable? (2017)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
A rt. 178 of the Labor Code provides that the State Insurance Fund shall be liable for compensation to the employee or his dependents, except when the disability or death was occasioned by the employee’s: (1) Intoxication, (2) Willful intention to injure or kill himself or another, (3) Notorious negligence, or (4) Otherwise provided under Book 4, Title II of the Labor Code.
6 A employed the services of B in his computer shop business. During the period of employment, A shot B. Is the death of B compensable? (2017) SUGGESTED ANSWER:
C. HYPOTHETICAL QUESTIONS 1. May the employer change of meal time from 1 hour paid to 1 hour unpaid. (2017)
7. F, single and living-in with G (legally separated from his wife) is pregnant with her fifth child. She applied for maternity leave but her employer refused the application because she is not married. Decide. (2016, 2017)
SUGGESTED ANSWER: SUGGESTED ANSWER: The employer may refuse F’s application for maternity leave, but not on the ground that she is not married. 2. The labor union’s chief manager worked overtime to “fix” wages. Employer said the overtime hours worked are not compensable because he could have fixed it not at that time. (2017) SUGGESTED ANSWER:
3. Did the Labor Code provisions on the retirement pay expand the term “one half (1/2) month salary” because it means 15 days’ pay plus a full 13th month pay? (2016, 2017) SUGGESTED ANSWER: No. Article 287 of the Labor Code, as amended by R.A. 7641, expanded the concept of one-half month salary from the usual one-month salary divided by 2 because the term shall include: a. 15 days salary of the employee based on his latest salary rate; b. The cash equivalent of not more than 5 days of service incentive leave (SIL);
Maternity leave benefits of 60 days(normal delivery) or 78 days(caesarian delivery) with full pay are granted to a female employee for her first four deliveries or miscarriages. To be entitled thereto, she need not be legally married, and must have paid for at least 3 monthly contributions in the 12month period immediately preceding the semester of her childbirth or miscarriage. In the case at bar, F is pregnant with her fifth child. Since maternity leave benefits are given only for the first four deliveries or miscarriage, F is not entitled thereto and the employer may validly refuse her application therefor.
8. Marikina Shoe Company employs 20 laborers and 2 supervisors. It also employed the services of carpenters and welders for the fixing of the roof of its building. A. Who are covered by the SSS Law? (2017) SUGGESTED ANSWER:
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Professor: Atty. Peter-Joey Usita B. Who are entitled to 13 th month pay? (2017)
contract, in the same manner and extent that he is liable to employees directly employed by him.
SUGGESTED ANSWER: P.D. 851 or the 13th Month Pay Law provides that, as a general rule, all rank-and-file employees regardless of the amount of basic salary that they receive in a month, if their employers are not otherwise exempted from paying the 13 th month pay. Such employees are entitled to the 13 th month pay regardless of their designation or employment status, and irrespective of the method by which their pages are paid, provided that they have worked for at least 1 month during a calendar year.
The liability, however, does not extend to the payment of backwages and separation pay of employees who were constructively or illegally dismissed by the contractor.
The said benefit under P.D. 851, however, does not apply to government employees, employees paid purely on commission basis, and employees already receiving 13 th month pay.
A. As counsel for the company, explain the legal justification(s) for the president’s action.
9. B, a building contractor, entered into a contract with CDE Insurance Company for the construction of the latter’s new five-storey office building. In connection with the aforesaid contract, B hired carpenters, masons and laborers. (2013, 2016)
B. As counsel for the employees, explain the legal ground(s) for your opposition to the president’s action.
A. What are the factors in determining whether CDE Insurance Company may be considered an “indirect employer” of the workers of B? SUGGESTED ANSWER: For CDE to be considered as the indirect employer of the workers of B, the following factors shall be considered: (1) Whether or not B is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility, according to its own manner and method; (2) Whether or not B has substantial capital and/or investment (3) Whether or not B is free from control and/or direction of CDE in all matters connected with the performance of the work except as to the results thereof; and (4) The Service Agreement ensures compliance with all the rights and benefits for all the employees of B under labor laws. If all the said considerations are answered in the affirmative, there is a legitimate job contracting or subcontracting and consequently, CDE is considered as the indirect employer of the workers of B.
B. May CDE Insurance Company be held liable for unpaid wages and other monetary claims of B’s workers? Explain. SUGGESTED ANSWER: We must distinguish. A rtic le 106 of the Labor C ode provides that In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the
10. The projected bonus for the employees of H Company was 30% of their monthly compensation. Unfortunately, due to the slump in the business, the president unilaterally reduced the bonus to 5% of their compensation. (2016)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
11. J, a project worker, was being assigned by his employer, K Builders Corporation, to Aparri, Cagayan. J refused to comply with the transfer claiming that in effect, he was being constructively dismissed because it would take him away from his family and his usual work assignments in Metro Manila. The Labor Arbiter found that there was no constructive dismissal but ordered the payment of separation pay due to strained relations between the parties, plus attorney’s fees equivalent to twenty percent (20%) of the value of J’s separation pay. Is the award of attorney’s fees valid? Explain your answer. (2016) SUGGESTED ANSWER:
12. The DOLE Regional Director does not have jurisdiction over money claims arising from employeremployee relationship if such claims exceed P5,000.00. Do you agree? Explain. (2016) SUGGESTED ANSWER:
13. Y Company, which employs more than 100 workers in its vast car ass embly plant in Laguna, has 15 foremen and 15 supervisors, given the power to recommend the hiring, firing and suspension of warehouse employees. The ultimate power to hire, fire and suspend however is vested to the plant personnel manager. Are the foremen and supervisors considered managerial employees? Explain. (2013) SUGGESTED ANSWER:
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Professor: Atty. Peter-Joey Usita It depends. Under the Rules to Implement the Labor Code, the following conditions must be present for an employee to be considered as a managerial employee:
proper dispostition. In the death of PO3 Tom Cruz workconnected and therefore, compensable? Why? (2013) SUGGESTED ANSWER:
(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; (2) They customarily and regularly direct the work of two or more employees therein; and (3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing, and as to the promotion and other change of status of other employees, are given particular weight. In the case at bar, the foremen and supervisors are given the power to recommend the hiring, firing and suspension of employees. Should their recommendation are given weight by the plant personnel manager, and if their primary duty consists of the management of the establishment and they customarily and regularly direct the work of two or more employees therein, they are considered as managerial employees. Otherwise, if any of the conditions set forth by the Implementing Rules is absent, then the foremen and supervisors are not considered as managerial employees. 14. X, a nurse employed by the Ospital ng Maynila, works for eight (8) hours a day, six (6) days a week. Is she entitled to overtime pay? Explain. (2013) SUGGESTED ANSWER: No. X is not entitled to overtime pay. Health personnel in government services are excluded from the coverage of Arts. 82-96 of the Labor Code. Their employment benefits are governed by R.A. 7305 or Magna Carta of Public Health Workers. Supposing, however, that X is within the coverage of the Labor Code, Article 87 thereof provides that overtime pay is paid for work performed beyond 8 hours a day. Since her work does not exceed 8 hours a day, she is not entitled to overtime pay.
15. During his employment as chief security officer of Manila Diamond Hotel, Z was provided with meals, water, electricity and lodging. Are these items deemed facilities? (2013) SUGGESTED ANSWER:
16. PO3 Tom Cruz, a member of the Quezon City Police District, was shot to death by a Barangay Chairman in front of the Manila City Hall. The fatal incident stemmed from a stabbing incident a day earlier between the sons of PO3 Tom Cruz and the Barangay Chairman. Although he was supposed to be on duty at Camp Karingal in Quezon City, PO3 Tom Cruz was accompanying his son to the Office of Mayor Alfredo Lim for interview and Prepared by: JAA | 6 of 6
