LABlab Flashcards
Maria Antoniette Cudal Lee was hired by Fil-Expat Placement Agency, Inc. as an orthodontist for Thanaya Al-Yaqoot Medical Specialist in the Kingdom of Saudi Arabia for a contract period of two years. She signed an employment contract duly approved by the POEA. After 5 months of employment, the employer asked Maria Antoniette to execute a new employment contract for the purpose of insurance and to comply with the KSA’s Ministry of Health requirement of securing a signed contract. According to the employer, the new contract was only for uniformity and was not intended to alter the terms of the original contract. Maria Antoniette refused to sign the new contract. Due to hostile experiences, she left her job and was repatriated. She then filed a labor case against her employer and the agency for contract substitution. Did her employer commit contract substitution?
Yes. The substitution or alteration of employment contracts is a prohibited practice under the Labor Code. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE 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 DOLE is considered an act of “illegal recruitment” under Section 6(i) of Republic Act No. 8042. It is illogical to require Maria Antoniette to sign a second contract if it would only restate the contents of the POEA-approved employment contract. It is also illogical that Maria was allowed to work at the clinic for five months without the foreign employer having a copy of the POEA-approved employment contract. Even assuming that Maria Antoniette failed to provide her foreign employer with a copy of the POEA-approved contract, the latter could just easily request a copy of the same from the recruitment agency, Fil-Expat. (Fil-Expat Placement Agency, Inc., v. Maria Antoniette Cudal Lee, G.R. No. 250439, September 22, 2020)
Distinguish between legitimate job contracting and labor-only contracting.
(1) As to nature of employer/principal
LJC: The employer or principal is merely an indirect employer, by operation of law, of his contractor’s employees
LOC: The employer/principal is treated as direct employer of the contractor’s employees in all instances (contractor is deemed agent of the employer)
(2) As to existence of EER
LJC: The law creates an employer-employee relationship for a limited purpose, i.e., to ensure that the employees are paid their wages.
LOC: The law creates an employer-employee relationship for a comprehensive purpose i.e. to prevent a circumvention of the law. The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of the labor-only contractor as if such employees had been directly employed by the principal employer.
(3) As to liability
LJC: The principal employer becomes jointly and severally liable with the job contractor only for the payment of the employees’ wages whenever the contractor fails to pay the same. Other than that, the principal employer is not responsible for any claim made by the employees.
LOC: The principal employer becomes solidarity liable with the labor-only contractor for all the rightful claims of the employees.
In 2002, PPI Holdings, Inc., hired Rico Palic Conjusta as a messenger for its human resources department, and later on, for its accounting department. Eventually, Conjusta’s employment was transferred to a manpower agency, a certain Human Resources, Inc., and subsequently, to Consolidated Buildings Maintenance, Inc. (CBMI). Despite such transfer, nothing changed with Conjusta’s employment — he continued to be PPI’s messenger in its accounting department until CBMI sent him, along with other coworkers, a Letter in 2016 terminating his services with PPI. Conjusta then filed an illegal dismissal case with money claims against PPI and CBMI arguing that he was PPI’s regular employee for having worked with it for 14 years. Is CBMI a legitimate job contractor and, consequently, Conjusta’s direct employer?
No. PPI and CBMI were engaged in the proscribed labor-only contracting. The following must be considered in determining whether CBMI is a legitimate job contractor or is engaged in labor-only contracting: (1) registration with the proper government agencies; (2) existence of substantial capital or investment; (3) service agreement that ensures compliance with all the rights and benefits under labor laws; (4) nature of the activities performed by the employees, i.e., if they are usually necessary or desirable to the operation of the principal ‘s company or directly related to the main business of the principal within a definite predetermined period; and (5) the exercise of the right to control the performance of the employees’ work. There is want of evidence that it was CBMI who hired Conjusta. There was no contract of employment showing that Conjusta was an employee of CBMI. As a messenger, Conjusta had been performing his tasks at PPI’s premises for about 14 years. All those times, all the tools and equipment which he used in the performance of his work are owned by PPI and the latter’s managers and supervisors controlled his work inside the company premises. (Rico Palic Conjusta v. Ppi Holdings, Inc., G.R. No. 252720, August 22, 2022)
Freddie B. Laurente initiated a complaint for Illegal Dismissal with Money Claims against Helenar Construction and its owner Joel Argarin. He claimed to doing work that is necessary and desirable for respondents’ construction business. He performed painting jobs from April 2012 until his termination in November 2014 across various projects. He claimed that he was asked to sign a labor contract for a period of three (3) months with a clause stating that his employment would be renewable “depending on the evaluation of the site engineer and foreman”, which he refused to sign because it would violate his security of tenure. Subsequently, he was barred from entering the construction site. The respondents contested, stating that Freddie is not their regular employee and that it was their subcontractor who recruited him as a painter for the project. Is Freddie a regular employee of Helenar Construction?
Yes. What determines regular employment is not the employment contract, written or otherwise, but the nature of the job. The applicable test is the reasonable connection between the particular activity performed by the employee in relation to the usual business of the employer or whether the work undertaken is necessary or desirable in the usual business or trade of the employer. This can be assessed by looking into the nature of the services rendered and its relation to the general scheme under which the business is pursued in the usual course. In this case, respondents are principally engaged in the construction business. Freddie, as a painter, is tasked with preparing, sanding and painting various construction works. Inarguably, the nature of Freddie’s job required him to perform activities, which were deemed necessary in the usual business of respondents. Freddie’s continuous rehiring to different construction projects of respondents from April 2012 until his termination in November 2014 attests to the desirability of his services. (Freddie B. Laurente v. Helenar Construction and Joel Argarin, G.R. No. 243812. July 07, 2021)
Simbajon and other employees filed a complaint against Q.S.O. Disco Pub & Restaurant, Abelardo Salazar, Quirino Ortega, and Lucia Bayang for unfair labor practices, illegal dismissal, underpayment of salaries, and non-payment of benefits. They claimed to have been employed in various roles at the restaurant and alleged harassment after forming a union. Abelardo, in response, denied any employment relationship with Simbajon, et al. He asserted that Lucia and Quirino were the restaurant owners, and he was only the lessor of the building. As supporting evidence, Abelardo submitted Contracts of Lease and Tax Returns showing his income solely on building rentals. Abelardo likewise presented the Certificate of Registration of Business Name, Mayor’s Permit, and Certificate of Registration with the Bureau of Internal Revenue which were all issued in Lucia’s name. Will the case for illegal dismissal prosper against Abelardo?
No. Applying the four-fold test of employment relationship, namely: (1) the selection and engagement of the employee or the power to hire; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control the employee, would disclose that Abelardo is not the employer of Simbajon, et al. The evidence showed that Abelardo did not participate in the selection of employees, did not directly pay their wages, did not have the power to dismiss them, and did not exercise control over their work. Instead, Abelardo presented documents proving that he is the lessor of the restaurant, providing lease contracts, tax returns, and other certifications in Lucia’s name as the business owner. (Abelardo Salazar v. Albina Simbajon, et.al, G.R. No. 202374, June 30, 2021)
Pedro and Maricel Dusol worked in Ralco Beach owned by Emmarck Lazo. Pedro handled maintenance and security, while Maricel managed the store. They were compensated with weekly allowances and monthly payments, respectively. In July 2008, due to unprofitability, Emmarck decided to lease out the beach, ending their services. Pedro and Maricel claimed illegal dismissal, but Emmarck denied an employment relationship, stating they were industrial partners. Are Pedro and Maricel employees of Emmarck?
Yes. To determine whether an employment relationship exists, the following elements are considered: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it. The records show that all the elements of an employer-employee relationship are present. First, Ralco Beach engaged the services of Pedro as caretaker and Maricel as a storekeeper. Second, Emmarck paid their wages in the form of allowances and commissions. Third, Emmarck terminated their employment when he notified them that he will be leasing the beach Resort, and that their services were no longer needed. Finally, Emmarck had the power to control their conduct in the performance of their duties. (Pedro D. Dusol and Maricel M. Dusol v. Emmarck A. Lazo, G.R. No. 200555, January 20, 2021)
What is contracting?
Contracting or subcontracting refers to an arrangement whereby a principal agrees to farm out to a contractor the performance or completion of a specific job or work within a definite or predetermined period, regardless of whether such job or work is to be performed or completed within or outside the premises of the principal.
What are the elements of a legitimate contracting or subcontracting?
The contracting or subcontracting shall only be allowed if all of the following circumstances concur:
- The contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job or work on its own responsibility according to its own method
- The contractor or subcontractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery, and supervision
- In performing the work farmed out, the contractor or subcontractor is free from control and/or discretion of the principal in all matters connected with the performance of the work except as to the result thereto
- The service agreement ensures compliance with all the rights and benefits for all the employees of the contractor or subcontractor under the labor laws
What is considered “substantial capital” for the purpose of compliance in legitimate contracting?
Substantial capital refers to paid-up capital stocks/shares of at least P5,000,000 in case of corporations, partnerships and cooperatives; or net worth of at least P5,000,000 in the case of single proprietorship.
Is the registration of a contractor conclusive proof of the contractor’s legitimacy?
No. While the existence of registration in favor of a contractor is a strong badge of legitimacy, the elements of substantial capital, or investment and control over the workers may be examined to rebut the presumption of regularity to prove that a contractor is not a legitimate one.
Tri-lateral relationship
It refers to the relationship in a contracting or subcontracting arrangement where there is contract for a specific job, work, or service between the principal and the contractor, and a contract of employment between the contractor and its workers.
Who are the parties involved in a trilateral relationship?
The parties involved in a trilateral relationship:
- Principal: any natural or juridical entity, whether an employer or not, who puts out or farms out a job or work to a contractor
- Contractor: any person or entity engaged in a legitimate contracting or subcontracting arrangement providing services for a specific job or undertaking farmed out by principal under a service agreement
- Contractor’s employee: employee of the contractor hired to perform or complete a job or work farmed out by the principal pursuant to a service agreement with the latter
What are the contracts required in a trilateral relationship?
- Employment contract between the contractor/subcontractor and its employees
- Service Agreement between the principal and the contractor
What is labor-only contracting?
Labor-only contracting refers to an arrangement where the contractor or subcontractor recruits, supplies, or places workers to perform a job or work for a principal, any of the two elements hereunder is present:
- The contractor or subcontractor:
a. Does not have either substantial capital OR investments in the form of tools, equipment, machineries, supervision, work premises, among others; AND
b. The employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or - The contractor or subcontractor does not exercise the right to control over the performance of the work of the employee
*There is labor-only contracting even if only one of the two elements above is present. Labor-only contracting is legally wrong and prohibited because it is an attempt to evade the obligations of an employer.
Oscar Ortiz, who was claiming to be a regular employee was allegedly illegally terminated after refusing to sign a new employment contract. Forever Richardson claimed, on the other hand, that Ortiz should be reporting to Workpool Manpower as its labor-only contractor. It further argued that Workpool Manpower should be impleaded in this case. Is an employee, who was allegedly hired through labor-only contracting, required to implead such contractor in an illegal dismissal case?
No. In labor-only contracting, the party who would have been the principal in a legitimate job contracting relationship, and who has no direct relationship with the contractor’s employees, simply becomes the employer in the situation with direct supervision and control over the contracted employees. Strictly speaking, in labor-contracting, there is no contracting, and no contractor; there is only the employer’s representative who gathers and supplies people for the employer. Considering that the respondents and Workpool Manpower’s contracting relationship is a prohibited form of contracting, it is no longer necessary to implead Workpool Manpower as a party to the case. It is a consequence of labor-only contracting that the personality of the principal and the contractor is merged into one. Thus, Workpool Manpower becomes a mere representative of the respondents, who is the employer of Oscar. (Ortiz v. Forever Richardson et. al, GR No. 238289, January 20, 2021)
The Social Housing Finance Corporation (SHFC), a government-owned entity, and its rank-and-file employees’ union, Social Housing Employees Association, Inc. (SOHEAI), entered into a Collective Bargaining Agreement (CBA) where they renegotiated its economic provisions, leading to agreed-upon benefits enhancements. However, the Governance Commission for GOCCs stated that SHFC had no authority for such enhancements due to existing laws and executive orders thus nullifying the new benefits and increases. SOHEAI claimed it as a diminution of benefits. Is the contention correct?
No. The SOHEAI and SHFC may establish in their CBAs such terms and conditions that are not contrary to law. However, there are existing and subsequent laws prohibiting GOCCs like SHFC from negotiating the CBAs’ economic provisions. EO No. 203 expressly disallowed the governing boards of GOCCs, whether chartered or non-chartered, to negotiate the economic terms of their CBAs. Further, the grant of allowances and other benefits to GOCCs must have the approval of the President upon the recommendation of the Budget Commissioner. Therefore, the SHFC’s revocation of the CBAs’ economic provisions can hardly amount to diminution of benefits. Suffice it to say that SOHEAI is not entitled to the new benefits and increases which yield neither legal nor binding effect. (Social Housing Employees Association, Inc. v. Social Housing Finance Corporation, G.R. No. 237729, October 14, 2020)
LBP Service Corporation had a manpower services agreement with Land Bank of the Philippines, deploying workers like Tuppil and Borja, et al. in Metro Manila. When the contract expired in 2014, the workers were recalled. Tuppil resigned, and Borja filed a complaint for illegal dismissal, claiming they were regular employees performing services necessary and desirable to LBP Service’s business. The Labor Arbiter dismissed the complaint, stating they were fixed-term contractual employees with no evidence of contract termination by LBPSC. Are the fixed term employment contracts of Tuppil, et al. and Borja, et al. unlawful?
No. Article 280 of the Labor Code does not proscribe or prohibit an employment contract with a fixed period provided the same is entered into by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstance vitiating consent.
The criteria of a valid fixed-term employment are:
(1) the fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
(2) it satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter.
In an administrative charge involving sexual harrasment under RA 7877 or the Anti-Sexual Harassment Act of 1995, what quantum of evidence is required?
The employee’s liability for an administrative offense of sexual harassment should not be determined solely based on Section 3 of RA No. 7877. Substantial evidence to support the administrative charge is sufficient. Thus, the “demand, request, or requirement of a sexual favor” requirement in Section 3 is not essential before an act can be qualified as sexual harassment in an administrative charge. It is enough that the respondent’s actions created an intimidating, hostile, or offensive environment for the employee. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Atty. Panga-Vega availed the 15 days of special leave benefit under RA No. 9710 (Magna Carta of Women), underwent total hysterectomy on February 7, 2011, and decided to return to work on March 7, 2011. She sought to resume her duties and presented a medical certificate of her fitness to return to work. HRET, however, directed her to consume her 2-month special leave given her need for prolonged rest. Does RA No. 9710 require that the entire duration of the special leave applied for be consumed before an employee is allowed to return to work?
No. While RA No. 9710 and the CSC Guidelines do not require that the entire special leave applied for be consumed, certain conditions must be satisfied for its propriety. Under the CSC Guidelines, a total hysterectomy is classified as a major surgical procedure. requiring a minimum period of recuperation of three weeks to a maximum period of two months. Aside from observing this time frame, the employee, before she can return to work, shall present a medical certificate signed by her attending surgeon that she is physically fit to assume the duties of her position. As it appears, she was already able to observe a period of recuperation of four weeks. As to the requirement for a medical certificate, she already presented a medical certificate signed by her attending obstetrician/gynecologist attesting her physical fitness to report back for work. Based on these facts, Panga-Vega sufficiently complied with the CSC Guidelines warranting her return to work. (House of Representatives Electoral Tribunal v. Panga-Vega, G.R. No. 228236, January 27, 2021)
When does a benefit provided by an employer to an employee, ripen into a company practice?
To be considered a company practice, the benefit must be consistently and deliberately granted by the employer over a long period of time. It requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employee is not covered by any provision of law or agreement for its payment. The burden to establish that the benefit has ripened into a company practice rests with the employee. (Home Credit Mutual Building and Loan Association et.al v. Ma. Roulette Prudente, G.R. No. 200010, August 27, 2020)
In 1997, Home Credit Mutual Building and Loan Association gave its employee Rollette Prudente her first service vehicle. Later, Rollete purchased the vehicle from Home Credit at its depreciated value. In 2003, Home Credit granted Rollete’s request for a second service vehicle. However, Home Credit required Rollete to pay for additional equity. In 2008, Rollete again purchased the vehicle at its depreciated value. In 2009, Rollette applied for a third service vehicle. This time, Home Credit adopted a cost sharing scheme where Rollette must shoulder 40% of the acquisition price. Aggrieved, Rollette filed a complaint against Home Credit for violation of Article 100 of the Labor Code on non-diminution of benefits before the Labor Arbiter (LA). Did the provision of a service vehicle starting from 1997 already ripened into a company practice?
No. The non-diminution rule applies only if the benefit is based on an express policy, a written contract, or has ripened into a practice. To be considered as company practice requires an indubitable showing that the employer agreed to continue giving the benefit knowing fully well that the employee is not covered by any provision of law or agreement for its payment. In this case, Home Credit had no existing car plan at the time Rollette was hired. There was no substantial evidence to prove that the car plan at full company cost had ripened into company practice. Notably, the only time Rollette was given a service vehicle fully paid for by the company was for her first car. For the second vehicle, the company already imposed a limit but Rollette never questioned this. She willingly paid for the equity in excess of said limit. The elements of consistency and deliberateness are not present. (Home Credit Mutual Building and Loan Association et.al v. Ma. Roulette Prudente, G.R. No. 200010, August 27, 2020)
Mutia, hired as an assistant cook by C.F. Sharp for Norwegian Cruise Lines (NCL), was found fit to work despite mild hearing loss. He suffered two accidents causing lower back pain and was diagnosed with “Multiple Sclerosis” and “Blurring of Vision”. Despite undergoing treatments, his condition worsened. After repatriation to the Philippines, his treatment payments were stopped by C.F. Sharp and NCL. He was certified for permanent total disability benefits by OWWA’s physician. However, C.F. Sharp and NCL denied his claim for benefits, alleging that he concealed a pre-existing condition of acute otitis media (ear illness). Is the defense of concealment tenable despite the facts that the prior illness is unrelated to his present claim for disability benefits?
No. A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. An illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions are present: a. The advice of a medical doctor on treatment was given for such continuing illness or condition; or b. The seafarer had been diagnosed and has knowledge of such an illness or condition but failed to disclose the same during pre-employment medical examination (PEME), and such cannot be diagnosed during the PEME. Mutia’s acute otitis media does not fall under any of the conditions mentioned constituting a pre-existing illness. Mutia’s prior ear illness is also unrelated to his present medical conditions. There is no proof that the ear condition caused or aggravated Mutia’s “Multiple Sclerosis,” “Blurring of Vision,” and “Neuromyelitis optica.” (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
What is fraudulent concealment?
A finding of fraudulent concealment means that a person failed to disclose the truth and that the non-disclosure is deliberate and for a malicious purpose. The fraudulent concealment must be coupled with an intent to deceive and profit from that deception. (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
When is Section 20 (E) of the 2010 POEA-SEC which provides that a seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits applicable?
Section 20(E) of the 2010 POEA-SEC is applicable if the following conditions are met: (1) the seafarer is suffering from a pre-existing illness or injury as defined under Item 11 (b) of the 2010 POEA-SEC, (2) the seafarer intentionally concealed the illness or injury, (3) the concealed pre-existing illness or injury has a causal or reasonable connection with the illness or injury suffered during the seafarer’s contract. Under the last condition, it is enough that the concealed illness or injury contributed to the seafarer’s disability. In the absence of these conditions, the employers remain liable for work-related injury or illness consistent with their duties to provide a seaworthy ship and to take precautions to avoid the seafarer’s accident, injury, or sickness. (Loue B. Mutia v. C.F. Sharp Crew Mgt., Inc., G.R. No. 242928, June 27, 2022)
Almario, who was hired by Skanfil as a mess person on board M/V “DIMI” POS TOPAS, fell from a ladder while working He was brought to a hospital and was diagnosed with a blunt head injury, blunt back injury, lacerated scalp wound, and brain concussion. Almario was repatriated to the Philippines on October 2, 2013, examined by company physicians, and referred to specialists for treatment, medication, and rehabilitation. After weeks of treatment and rehabilitation, he was cleared by the specialists and the company-designated physicians who also declared him fit for duty on February 7, 2014. Unconvinced, Almario consulted another physician who declared him permanently unfit to resume sea duties. He filed a complaint against Skanfil. Is Almario entitled to permanent total disability benefits?
Yes. Based on jurisprudence, the company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total. Here, Almario was medically repatriated and submitted for post-medical examination by the company-designated physicians who later referred him to other specialists to address the specific concerns. Said specialists treated Almario, prescribed medications, and assisted in the rehabilitation. The company-designated physicians must issue a final and valid medical assessment within 120 days reckoned from October 2, 2013, or the date when Almario was repatriated. The company-designated physicians had until January 30, 2014, to issue the assessment unless there was a justifiable reason to extend the period. (Skanfil Maritime Services, Inc., et.al., v. Centeno, G.R. No. 227655, April 27, 2022)
What are the rules on the prescribed period for company-designated physicians to issue a final medical assessment and the consequences for failure to observe such periods?
The Court has summarized the rules as follows:
1. The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.
The 120 days must be reckoned “from the date of the seafarer’s repatriation.” (Skanfil Maritime Services, Inc., et.al., v. Centeno, G.R. No. 227655, April 27, 2022)
Celestino is employed by Pacific Ocean Manning, Inc. as a Fitter onboard MCT Monte Rosa. While performing overhaul in the engine and fixing the hydraulic machine, the hose accidentally detached and hit his left eye. Several months later, he collapsed and an Accident Report was issued regarding the incident. The ship captain referred him to an offshore physician. He underwent an MRI and several medical tests were conducted. Findings showed that he had a posterior retinae partial tear, sinusitis, hyperlipidemia, and acute gastroduodenitis. He was later repatriated but there was no medical assessment issued by a company doctor. Is Celestino entitled to permanent total disability benefits?
Yes. The grant of permanent total disability benefits does not require a state of absolute helplessness. It is enough that there is inability to substantially pursue his gainful occupation as seafarer without serious discomfort or pain and without material injury or danger to life. Celestino’s illness disabled him from performing his customary job on board the vessel. This incapacity, coupled with the company-designated physician’s abdication of the duty to declare the seafarer’s fitness or unfitness to work within the prescribed periods under the POEA-SEC, converts the latter’s disability to permanent and total by operation of law. (Celestino, v. Pacific Ocean Manning, Inc., et.al., G.R. No. 220657, March 16, 2022)
Celestino, while performing overhaul in the engine and fixing the hydraulic machine, the hose accidentally detached and hit his left eye. Several months later, he collapsed and an Accident Report was issued regarding the incident. Upon repatriation, he asserts that he asked to be referred to a company-designated physician but his request was rejected. Pacific Manning claims that it did not know of Celestino’s medical conditions, hence, it cannot be held liable for the claims of Celestino. Is Pacific Manning’s contention tenable?
No. The burden to prove that the seafarer was referred to the company physician falls on the employer, and not the seafarer. To be sure, without the assessment from the company-designated doctor, there is nothing for the seafarer to contest and this entitles him to receive total and permanent disability benefits. Here, it is apparent that respondents did not refer Celestino to the company-designated physician. The absence of a post-employment medical examination cannot be used to defeat a seafarer’s claim especially when the failure to satisfy this requirement was not due to his fault but because of the inadvertence or deliberate refusal of the employer. The absence of a post-employment medical examination cannot bar Celestino’s claim for disability benefits and sickness allowance. (Celestino, v. Pacific Ocean Manning, Inc., et.al., G.R. No. 220657, March 16, 2022)
Jose signed a nine-month contract to serve as Chief Cook onboard M/V Independent Endeavor. Jose experienced intense and unbearable pain in his right knee due to an occupational accident and underwent an operation. After his operation, Jose was medically repatriated on December 12, 2006. Upon arrival in the Philippines, the company-designated doctors subjected him to further evaluation, therapy, and operation. He completed his physical therapy and his right knee has improved. In 2007, the company-designated doctor issued a final assessment that Jose was fit to work. In 2009, Dr. Chua, a personal doctor, diagnosed Jose with Traumatic Arthritis, and assessed him with permanent partial disability. Should the findings of the personal doctor prevail over the company-designated doctor?
No. It is the company-designated doctor’s findings that should prevail as he is equipped with the proper discernment, knowledge, experience, and expertise on what constitutes total or partial disability. Having cared for the seafarer after repatriation, the company-designated physician’s declaration serves as the basis for the seafarer’s fitness to work, or degree of disability. Here, the company-designated doctor’s assessment was based on examinations, operations, and therapy administered to Jose, as recommended by the physiatrist and orthopedic specialist who treated him. On the other hand, Jose only consulted his own physician and arrived at her conclusion based on information provided by Jose. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
For occupational accidents, when is referral to a third doctor proper and mandatory?
Under the POEA-SEC, a seafarer may contest the findings of the company-designated doctor by seeking a second opinion from a doctor of his choice. In the event of disagreement between the findings of the doctors, the parties shall jointly refer the matter to a third doctor, whose findings will be final and binding. This referral to a third doctor has been held by this Court to be a mandatory procedure because of the provision that it is the company designated doctor whose assessment should prevail if there is no referral to a third doctor. The procedure for the referral to the third doctor should be complied with when (1) there is a valid and timely assessment by the company designated physician and (2) the appointed doctor of the seafarer refuted such assessment. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
Seafarer Jamias, employed by Blue Manila and/or Oceanwide Crew Manila, served as a cook and performed various duties involving strenuous manual work. While onboard, he experienced pain and was later diagnosed with constipation and umbilical hernia, resulting in his repatriation to Manila. He underwent an MRI as advised by the company doctor and had surgery for hernia. However, his lower back pain persisted. The company-designated doctor declared him fit-to-work, but Jamias sought further evaluation. Dr. Runas, as specialist, supported this claim, stating Jamias unfit for ship duty. Jamias demanded disability benefits but petitioners argued no liability since his claim for disability benefit was based on a back ailment that occurred post-employment. Must the seafarer’s ailment be a necessary consequence or directly connected to the cause of his medical repatriation to be compensable?
No. A seafarer may claim disability benefits arising from (1) an injury or illness that manifests, or is discovered during the term of the seafarer’s contract, which is usually while the seafarer is still on board the vessel; or (2) an illness that manifests, or is discovered after the contract, which is when the seafarer has disembarked from the vessel. In this case, the company-designated doctor ordered a test for MRI. The only logical conclusion why the company designated doctor would specifically request for a lumbosacral MRI is that Jamias was already suffering from low back pains and he brought this to the attention of the attending physician. Clearly, any illness complained of, and/or diagnosed during the mandatory PEME is deemed existing during the term of the seafarer’s employment, and the employer is liable therefore. (Blue Manila, Inc. and/or Oceanwide Crew Manila, Inc. v. Antonio R. Jamias, G.R. No. 230919, January 20, 2021)
What are the requisites for serious misconduct to be a just cause for dismissal of employees?
Article 297 of the Labor Code. To be a just cause for dismissal: (a) the misconduct must be serious; (b) it must relate to the performance of the employee’s duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent. (Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022 )
Roberto, a URC machine operator since 1997, used company-provided alcohol to clean his motorcycle. The bottle, still in his bag, was found by a security guard on March 26, 2015. Roberto was charged with qualified theft and was placed under preventive suspension. In an administrative hearing, Roberto admitted that he took the bottle but denied stealing, which URC did not believe. The criminal case was dismissed, but Roberto filed an illegal dismissal case against URC. Was the act done by Roberto proportionate to the penalty of dismissal?
No. The following factors should be considered in determining whether theft of company property by an employee warrants the penalty of dismissal: (a) period of employment and existence of a derogatory record; (b) value of the property involved; (c) cost of damage to the employer; (d) effect on the viability of employer’s operation or company’s interest; and (e) employee’s position. Here, Roberto had been in URC’s employ for 18 years. The bottle of ethyl alcohol is very minimal. URC did not lose anything as the bottle was timely retrieved. Further, it was not shown that Roberto’s retention would work undue prejudice to the viability of URC’s operations. Neither does Roberto occupy a position of trust and confidence, the loss of which would justify his dismissal.(Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022)
Roberto, a URC machine operator since 1997, used company-provided alcohol to clean his motorcycle. The bottle, still in his bag, was found by a security guard on March 26, 2015. Roberto was charged with qualified theft and was placed under preventive suspension. In an administrative hearing, Roberto admitted that he took the bottle but denied stealing, which URC did not believe. The criminal case was dismissed, but Roberto filed an illegal dismissal case against URC. Was the act done by Roberto proportionate to the penalty of dismissal?
No. The following factors should be considered in determining whether theft of company property by an employee warrants the penalty of dismissal: (a) period of employment and existence of a derogatory record; (b) value of the property involved; (c) cost of damage to the employer; (d) effect on the viability of employer’s operation or company’s interest; and (e) employee’s position. Here, Roberto had been in URC’s employ for 18 years. The bottle of ethyl alcohol is very minimal. URC did not lose anything as the bottle was timely retrieved. Further, it was not shown that Roberto’s retention would work undue prejudice to the viability of URC’s operations. Neither does Roberto occupy a position of trust and confidence, the loss of which would justify his dismissal.(Universal Robina Corporation v. Roberto De Guzman Maglalang, G.R. No. 255864, July 06, 2022)
Yañez, Supervisor of Philippine Airlines (PAL) Passenger Handling Division was charged with sexual harassment under PAL’s Revised Code of Discipline. He was first served a notice containing a summary of the alleged incident between him and a flight attendant, Nova. He was later served a memo advising him of the administrative charges against him and notified of a scheduled administrative hearing in Pasay, which he did not attend. Another hearing was scheduled in Cebu where he appeared with his lawyers. He refused to testify and walked out of said conference. Yañez claims that his right to due process was violated because his request for a transcript of the Pasay hearing was denied. Was Yañez’s right to due process violated?
No. Due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. The essence of due process is simply an opportunity to explain one’s side or the chance to seek a reconsideration of the action or ruling complained of. It safeguards not the lack of previous notice but the denial of the opportunity to be heard. As long as the party was afforded the opportunity to defend his interests in due course, there is no denial of due process. Here, PAL notified Yanez of the incident report. Yañez was advised of the hearing in Pasay City. Yet, Yañez still did not appear at the scheduled hearing. PAL scheduled another hearing, this time in Mactan, to give Yañez opportunity to present his side, but Yañez and his counsel staged a walk out. Since it was Yañez who refused to attend the scheduled hearings, he cannot, later on, complain that he was unduly silenced. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Yañez, Supervisor of Philippine Airlines (PAL) Passenger Handling Division was charged with sexual harassment under PAL’s Revised Code of Discipline. He was first served a notice containing a summary of the alleged incident between him and a flight attendant, Nova. He was later served a memo advising him of the administrative charges against him and notified of a scheduled administrative hearing in Pasay, which he did not attend. Another hearing was scheduled in Cebu where he appeared with his lawyers. He refused to testify and walked out of said conference. Yañez claims that his right to due process was violated because his request for a transcript of the Pasay hearing was denied. Was Yañez’s right to due process violated?
No. Due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. The essence of due process is simply an opportunity to explain one’s side or the chance to seek a reconsideration of the action or ruling complained of. It safeguards not the lack of previous notice but the denial of the opportunity to be heard. As long as the party was afforded the opportunity to defend his interests in due course, there is no denial of due process. Here, PAL notified Yanez of the incident report. Yañez was advised of the hearing in Pasay City. Yet, Yañez still did not appear at the scheduled hearing. PAL scheduled another hearing, this time in Mactan, to give Yañez opportunity to present his side, but Yañez and his counsel staged a walk out. Since it was Yañez who refused to attend the scheduled hearings, he cannot, later on, complain that he was unduly silenced. (Philippine Airlines v. Frederick Yañez, G.R. No. 214662, March 02, 2022)
Is an employee entitled to damages if the dismissal was due to the closure of the business?
No. As a general rule, Article 298 of the Labor Code considers the closure of business as an authorized cause for the dismissal of employees, whether or not the closure is due to serious business losses. However, if the closure is not due to serious business losses, the employer is required to pay its employees separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. (Pedro D. Dusol and Maricel M. Dusol v. Emmarck A. Lazo, G.R. No. 200555, January 20, 2021)
What are the conditions to justify a valid dismissal based on loss of trust and confidence?
To justify a valid dismissal based on loss of trust and confidence, the concurrence of two (2) conditions must be satisfied: (1) the employee concerned must be holding a position of trust and confidence; and (2) there must be an act that would justify the loss of trust and confidence. In terminating managerial employees based on loss of trust and confidence, proof beyond reasonable doubt is not required. The mere existence of a basis for believing that such employee has breached the trust of his employer is enough. This degree of proof differs from that of a rank and file employee which requires proof of involvement in the alleged events, and that mere uncorroborated assertions by the employer will be insufficient. (Noel M. Manrique v. Delta Earthmoving, Inc., et. al., G.R. No. 229429, November 09, 2020)
Who are considered employees holding positions of trust and confidence?
- Managerial employees - those vested with power to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees
- Supervisorial employees - those who, in the interest of the employer, effectively recommend such managerial actions the exercise of which is not merely routinely or clerical in nature but requires the use of independent judgment; and
- Those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property
Noel M. Manrique filed a complaint against Delta Earthmoving, Inc. for illegal dismissal. Manrique alleged he was wrongfully terminated from his position as Assistant Vice President for Mining Services due to poor performance. Delta Earth argued that Manrique’s dismissal was justified, citing instances of neglect and inefficiency supported by evidence such as a Performance Evaluation and memoranda. Manrique disputes the evidence, claiming that the fact of his termination was only relayed to him by his immediate supervisor in the mining site. He contends that Delta Earth failed to give the required notices. Was the proper notice of termination under Article 292(b) of the Labor Code satisfied?
No. Delta Earth failed to comply with the two-notice rule under Article 292(b) of the Labor Code. The first notice must contain the reasons for the termination affording the employee ample opportunity to be heard and defend himself with the assistance of a representative if he so desires. The second notice must indicate that there are grounds to justify the employee’s termination upon due consideration of all the circumstances. None of these notices were given to Manrique as the fact of his termination was only relayed to him by his immediate supervisor in the mining site, upon instructions received from Delta Earth’s main office. (Noel M. Manrique v. Delta Earthmoving, Inc., et. al., G.R. No. 229429, November 09, 2020)
What are the requisites to justify a dismissal on the ground of serious misconduct?
For serious misconduct to be a just cause for dismissal, the concurrence of the following elements is required: (a) the misconduct must be serious; (b) it must relate to the performance of the employee’s duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent. (Wilfredo T. Mariano v. G.V. Florida Transport, G.R. No. 240882, September 16, 2020)
Relucio filed a complaint for illegal dismissal against Bicol Isarog Transport System, Inc. He claimed that he was illegally dismissed without valid reason and due process. Bicol Isarog Transport System argued that Relucio repeatedly and willfully violated the company’s Code of Discipline. Relucio was given specific instructions, by the OIC for Operations, not to push through with his trip to Manila since he only had five passengers and was reminded that it is a policy to transfer passengers to another bus with more passengers to save operational costs. However, he insisted on pursuing his trip. Relucio was then ordered to report to the Operations Manager of Bicol Isarog upon arriving in Manila but he failed to abide by the summons. Through a text message, Relucio was directed to go to the Human Resource (HR) but he did not heed the directive. Does Relucio’s failure to obey the order of the OIC constitute insubordination which is punishable by dismissal?
Yes, insubordination, as a just cause for the dismissal of an employee, necessitates the concurrence of the following requisites: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. The order not to continue with the trip is reasonable, lawful, made known to Relucio and pertained to his duty as a bus driver of Bicol Isarog. Relucio did not deny nor offer any explanation for his disobedience. Company policies and regulations are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or preferably through negotiation, by competent authority. Bicol Isarog’s Code of Conduct categorized insubordination and failure to report for duty as a grave offense, which merits the penalty of dismissal. (Bicol Isarog Transport System, Inc. v. Relucio, G.R. No. 234725, Sep 16, 2020)
What are the standardized requirements of procedural due process in the termination of employment under the Labor Code?
Procedural due process consists of the twin requirements of notice and hearing. The employer must furnish the employee with two written notices before the termination of employment can be implemented: (1) the first apprises the employee of the particular acts or omission for which his dismissal is sought; and (2) the second informs the employee of the employer’s decision to dismiss him. The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. An employee’s right to be heard is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against him and to submit evidence in support thereof. (Verizon Communications v. Laurence C. Margin, G.R. No. 216599, September 16, 2020)
What are the remedies available to an employee who was found to be illegally terminated?
The employee is entitled to reinstatement without loss of seniority rights and other privileges. However, if actual reinstatement is no longer possible, the employee becomes entitled to separation pay in lieu of reinstatement. Based on jurisprudence, reinstatement is not feasible:
1. in cases where the dismissed employee’s position is no longer available;
2. the continued relationship between the employer and the employee is no longer viable due to the strained
relations between them; and
3. when the dismissed employee opted not to be reinstated, or the payment of separation benefits would be
for the best interest of the parties involved.
In these instances, separation pay is the alternative remedy to reinstatement. The payment of separation pay and reinstatement are exclusive remedies. While an illegally dismissed employee is entitled to payment of full backwages, there are exceptions to the said rule. This is on account of: (1) the fact that dismissal of the employee would be too harsh of a penalty; and (2) that the employer was in good faith in terminating the employment. Only employees discriminatorily dismissed are entitled to backpay. (Verizon Communications v. Laurence C. Margin, G.R. No. 216599, September 16, 2020)
Do the Philippine Overseas Employment Administration (POEA) and Labor Arbiter (LA) have concurrent jurisdiction?
No. the Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act (RA) No. 10022, provides that the LA shall have original and exclusive jurisdiction to hear and decide the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary, and other forms of damage. On the other hand, Rule X of the Implementing Rules and Regulations of RA No. 10022, provides that the POEA exercises administrative jurisdiction arising out of violations of rules and regulations and administrative disciplinary jurisdiction over employers, principals, contracting partners, and overseas Filipino workers. (U R Employed International Corporation and Pamela T. Miguel, v. Mike A. Pinmiliw, Murphy P. Pacya, Simon M. Bastog, And Ryan D. Ayochok, G.R. No. 225263, March 16, 2022)
What are the instances wherein the bond requirement on appeal involving monetary awards under the Labor Code may be relaxed?
These cases include instances in which (1) there was substantial compliance with the Rules; (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond; (3) a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits; or (4) the appellants, at the very least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period. (Abelardo Salazar v. Albina Simbajon, et.al, G.R. No. 202374, June 30, 2021)
Zonio was hired as a security guard by 1st Quantum Leap Security Agency. 1st Quantum Leap did not pay him for overtime work, work rendered on holidays and rest days, as well as 13th month pay, service incentive leave, and night shift differential. Zonio filed a complaint for underpayment of salary and benefits. The Labor Arbiter ruled that Zonio failed to substantiate his claim for payment of overtime and holiday pay, holiday and rest day premiums pay, and night shift differential pay. Even so, he is entitled to salary differentials for a period of three years counted backwards from the date of his suspension, as well as to 13th month pay, and the monetization of his service incentive leave. The NLRC modified the decision of the Labor Arbiter and ruled otherwise. 1st Quantum Leap filed a petition for certiorari with the CA to question NLRC’s decision in favor of Zonio. The CA partly granted the petition by deleting the award of overtime pay, holiday and rest day premiums pay, and night shift differential pay. Who bears the burden of proof in determining the employee’s entitlement to monetary claims?
In determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employer or the employee, depending on the monetary claim sought. In claims for payment of salary differential, service incentive leave, holiday pay, and 13th month pay, the burden rests on the employer to prove payment. This standard follows the basic rule that in all illegal dismissal cases the burden rests on the defendant-employer to prove payment rather than on the plaintiff-employee to prove non-payment. On the other hand, for overtime pay, premium pay for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business. It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days. (Zonio v. 1st Quantum Leap Security Agency, G.R. No. 224944, May 5, 2021)
The DORELCO Employees Union-ALU TUCP and Don Orestes Romualdez Electric Cooperative, Inc. submitted for arbitration before the National Conciliation and Mediation Board (NCMB) the issue on whether the rank and file employees are entitled to salary adjustments. On September 22, 2017, the voluntary arbitrator ruled in favor of the Company. This decision was received by the Union on October 3, 2017. A motion for reconsideration was filed assailing said decision, which was denied on November 9, 2017. A copy of the resolution was received by the Union on November 27, 2017. It was only on December 12 2017 – where the Union filed an appeal to the Court of Appeals. Was the appeal filed beyond the reglementary period and that the decision of the Voluntary Arbitrator has already become final and executory?
No. The 10-day period stated in Article 276 should be understood as the period within which the party adversely affected by the ruling of the Voluntary Arbitrators or Panel of Arbitrators may file a motion for reconsideration. Only after the resolution of the motion for reconsideration may the aggrieved party appeal to the CA by filing the petition for review under Rule 43 of the Rules of Court within 15 days from notice pursuant to Section 4 of Rule 43. Here, the records reveal that the Union received the voluntary arbitrator’s resolution denying its motion for reconsideration on November 27, 2017. As such, the Union had 15 days or until December 12, 2017 within which to perfect an appeal. Verily, the Union filed a petition for review within the prescribed period. (Dorelco Employees Union-Alu-Tucp V. Don Orestes Romualdez Electric Cooperative (Dorelco), Inc., G.R. No. 240130, March 15, 2021)
LA and NLRC both ruled that Jose, a seafarer, is fit to work based on the assessment made by the doctor designated by Jose’s company. CA, on the other hand, ruled that the latter is unfit to work due to the fact of his unemployment. Upon appeal to the Supreme Court, can the latter directly review the facts of the case as to Jose’s fitness to work?
Yes. Generally, the principle that the Supreme Court is not a trier of facts applies with greater force in labor cases. The question of whether the seafarer was properly declared fit to work is one of fact, hence, is beyond the ambit of this Court’s jurisdiction in a petition for review on certiorari. However, when there is a conflict in the factual findings of the LA and NLRC as opposed to that of the CA, it behooves the Court to review and re-evaluate the questioned findings in the exercise of its equity jurisdiction. Here, both the LA and the NLRC gave credence to the fit to work assessment made by the company-designated doctor. On the contrary, the CA rejected the fit-to-work assessment and reversed the labor tribunals’ ruling on the ground that Jose has not been employed by petitioners despite being declared fit to work. (Doehle Philman Manning Agency, Inc., et al. v. Gatchalian, G.R. No. 207507, February 17, 2021)
Who are not covered by the Labor Code?
The following persons and entities are not covered by the Labor Code:
1. Corporate officers involved in intra-corporate disputes under PD 902
2. Employees of GOCCs created by special or original charter. Such employees are governed by the Civil Service.
3. Local water districts
4. Foreign governments
5. International agencies
6. Government agencies covered by civil service rules and regulations
Protection-to-Labor Clause
1987 CONST., art. XIII, sec. 3
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall 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 to investments, and to expansion and growth.
Social Justice
Social justice is neither communism, nor despotism, not 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 competent 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 extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of “sales populi est suprema lex.”
What is the quantum of evidence required in labor cases?
The party-litigant who alleges the existence of a fact or thing necessary to establish his/her claim has the burden of proving the same by the amount of evidence required by law, which, in labor proceedings, is substantial evidence, or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
May affidavits be submitted in evidence in labor cases uncorroborated by any other evidence?
Yes, the Supreme Court has held that in labor cases, affidavits may be sufficient to establish substantial evidence.
Who has the burden of proof in determining the employee’s entitlement to monetary claims?
In determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employee or the employee, depending on the monetary claim sought. In claims for payment of salary differential, service incentive leave, holiday pay, 13th month pay, the burden rests on the employer to prove payment. On the other hand, for overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business.a
Powers and Functions of Department of Migrant Workers
R.A. No. 11641
Section 6. Powers and Functions. – To carry out its mandate, the Department shall:
(a) Formulate, recommend, and implement national policies, plans, programs, and guidelines that will ensure the protection of OFWs, including their safe, orderly and regular migration, then promotion of their interests, the timely and effective resolution of their problems and concerns, and their effective reintegration into Philippine society;
(b) Regulate the recruitment, employment, and deployment of OFWs;
(c) Investigate, initiate, sue, pursue, and help prosecute, in cooperation with the Department of Justice (DOJ) and the Inter-Agency Council Against Trafficking (IACAT), illegal recruitment and human trafficking cases as defined under Republic Act No. 8042, as amended by Republic Act No. 10022, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, as amended, and as provided under Republic Act No. 9208, as amended by Republic Act No. 10364, otherwise known as the Anti-Trafficking in Persons Act, and other existing laws and other issuances. In the performance of its functions, the Department Secretary and his or her authorized deputy shall have the power: (1) to issue subpoena or subpoena duces tecum to any person for investigation for illegal recruitment or trafficking in persons cases as defined under Republic Act No. 9208, as amended, and other existing laws and other issuances; and hold or cite any person in contempt as may be provided by the implementing rules and regulations; (2) to administer oaths upon cases under investigation; and (3) to have access to all public records and to records of private parties and concerns, in accordance with law;
(d) Protect and promote the welfare, well-being, and interests of the families of OFWs in accordance with this Act, consistent with the constitutional policy of upholding the sanctity of the family as a basic autonomous social institution and of valuing the vital role of youth in nation-building;
(e) Support and assist the Department of Foreign Affairs (DFA) and relevant government agencies in building strong and harmonious partnerships with counterpart and relevant agencies in foreign countries in order to facilitate the implementation of strategies and programs for the protection and promotion of the rights and well-being of OFWs and their families, and to continuously monitor economic, political and labor developments therein;
(f) Support and assist the DFA in the negotiation of bilateral and multilateral agreements, initiatives and programs, including intergovernmental processes, which primarily concern labor migration;
(g) Represent, in coordination with and under the guidance of the DFA, interests pertaining to OFWs in bilateral, regional, and multilateral fora and international bodies. A written authorization shall be secured by the Department from the President, through the Secretary of Foreign Affairs, prior to any international meeting or negotiation of a treaty or executive agreement on any subject matter within its mandate;
(h) Provide, in cooperation with the Department of Education (DepEd), the Department of Trade and Industry (DTI), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDAT), the Maritime Industry Authority (MARINA), and other government agencies, civil society organizations, nongovernmental organizations and the private sector, trainings aimed at promoting the global competitiveness of OFWs, as well as job matching services to persons desiring to become OFWs;
(i) Encourage and enhance information and resource sharing among related agencies, and develop an electric database to improve services for OFWs in accordance with Section 18 of this Act;
(j) Regulate the operations of private recruitment and manning agencies involved in the deployment of OFWs abroad to protect the interests and well-being of these workers;
(k) Foster the professionalization, promote ethical recruitment practices, and ensure compliance with legal and ethical standards, training, and capacity-building of private recruitment and manning agencies;
(l) Establish a 24/7 Emergency Response and Action Center Unit and media and social media monitoring center to respond to the emergency needs of OFWs and their families;
(m) Perform all the powers, functions, and responsibilities assigned to all agencies, offices, or units to be transferred to, or absorbed by, the Department pursuant to the consolidation mandated by this Act;
(n) Require private recruitment and manning agencies to provide comprehensive insurance to the OFWs they deploy in accordance with the law: Provided, That with respect to OFWs deployed through other arrangements, a substantially similar benefit shall be provided to the concerned OFW;
(o) Develop and create a training institute that will provide substantive, analytical and strategic leadership training programs meant to equip employees of the Department , especially those who will be working overseas, with necessary knowledge and skills, such as, but not limited to, the language, customs, traditions, and laws of the host countries where OFWs are located, with due regard to the training services being provided by the Foreign Service Institute of the DFA. The training shall also include effective means and methods in handling the concerns of OFWs;
(p) Develop and create an institute for advanced and strategic studies on migration and development, which shall, among others, conduct advanced, strategic and up-to-date studies and research on global migration and development trends;
(q) In coordination with the DFA, conduct regular, timely and relevant political and security risk assessment of the conditions in the receiving country, including adequate evacuation plans that will be communicated with all migrant workers thereat, not only for deployment purposes but more especially in cases of emergencies which will require swift actions including, but not limited to, possible evacuation of our migrant workers;
(r) Create a system for the blacklisting of persons, both natural and juridical, including local and foreign recruitment agencies, their agents, and employers, who are involved in trafficking as defined in Section 16(h), second paragraph of Republic Act No. 9208, as amended. The Department shall create and update a database of blacklisted persons which will be shared within the concerned agencies of the Department and with the IACAT. It shall also establish a monitoring system for cases involving trafficking and illegal recruitment of OFWs; and
(s) Perform such other functions as may be necessary to achieve the objectives of this Act.
The exercise of the powers and functions of the Department shall in no way limit, restrict, or diminish the pursuit of an independent foreign policy or the conduct of foreign relations and treaty negotiations by the DFA.
Protection of the rights and promotion of the welfare of overseas Filipinos is a pillar of Philippine foreign policy. The DFA shall continue providing assistance to other Filipino nationals not covered under this Act.
What comprises the Department of Migrant Workers?
The following entities are consolidated and merged into and constituted as the Department, and their powers and functions subsumed to the Department which shall assume and perform all their powers and functions:
1. POEA
2. Office of the Undersecretary for Migrant Workers’ Affairs (OUMWA) of the DFA
3. Philippine Overseas Labor Offices (POLO) under DOLE
4. International Labor Affairs Bureau (ILAB) under DOLE
5. National Reintegration Center for OFWs (NRCO) under OWWA
6. National Maritime Polytechnic (NMP) under DOLE
7. Office of the Social Welfare Attache (OSWA) under DSWD
Jurisdiction of DMW
Exercise original and exclusive, and appellate jurisdiction to hear and decide all cases which are administrative in character, involving or arising out of:
1. Violations of recruitment rules and regulations, including refund of fees collected from OFWs and any violation of the conditions for the issuance of the license to recruit OFWs
2. Disciplinary action cases that are administrative in character, excluding money claims. In the exercise of its adjudicatory power, including its appellate jurisdiction, the Department shall formulate its own rules and procedures governing the proceedings before the Overseas Employment Adjudicators (OEAs), Regional Directors and the Office of the Secretary (IRR of the DMWA, Rule III, Sec. 6)
Regulatory power of the Secretary of Labor for local employment
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. 36)
Visitorial power of the Secretary of Labor in relation to recruitment in local employment
The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and record of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title (Art. 37)
The following persons and entities are disqualified to participate or engage in the recruitment and placement of workers for overseas employment:
Revised POEA Rules 2016 for Land-based Workers, Part II, Rule I, sec. 3
SECTION 3. Who are Disqualified. — The following persons and entities are disqualified to participate or engage in the recruitment and placement of workers for overseas employment:
a. Travel agencies and sales agencies of airline companies;
b. Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a travel agency;
c. Corporations and partnerships, where any of its officers, members of the board or partners is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency;
d. Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance contract under the compulsory insurance coverage for agency-hired Overseas Filipino Workers;
e. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not limited to the following:
1. Those convicted, or against whom probable cause or prima facie finding of guilt is determined by a competent authority, for illegal recruitment, or for other related crimes or offenses committed in the course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude;
2. Those agencies whose licenses have been revoked for violation of RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995), as amended, PD 442 (Labor Code of the Philippines), as amended, and RA 9208 (Trafficking in Persons Act of 2003), as amended, and their implementing rules and regulations;
3. Those agencies whose licenses have been cancelled, or those who, pursuant to the Order of the Administrator, were included in the list of persons with derogatory record for violation of recruitment laws and regulations; and
f. Any official or employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation Authority of the Philippines (CAAP), international airport authorities, and other government agencies directly involved in the implementation of RA 8042, as amended, and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity.
The Philippine Overseas Labor & Office (POLO) may suspend accreditation based on any of the following grounds:
Revised POEA Rules 2016 for Land-based Workers, Part III, Rule I, secs. 101
SECTION 101.Suspension of Accreditation by the POLO. — The POLO may suspend accreditation based on any of the following grounds:
a. Unjustified refusal to assist/repatriate distressed Overseas Filipino Worker/s;
b. Deliberate violation/non-compliance of the principal/employer with its contractual obligations to its hired Overseas Filipino Worker/s;
c. Continued processing and deployment of the Overseas Filipino Workers for the principal/employer will lead to the further exploitation of any or all of its applicants and Overseas Filipino Workers or pose imminent danger to the lives and safety of its Overseas Filipino Worker/s; or
d. When found to have hired and employed an Overseas Filipino Worker who is either a minor or below the prescribed minimum age requirement.
The POLO or the Administration shall automatically revoke the accreditation of a principal/employer on any of the following grounds:
Revised POEA Rules 2016 for Land-based Workers, Part III, Rule I, secs. 104
SECTION 104. Revocation of Accreditation and Registration. — The POLO or the Administration shall automatically revoke the accreditation of a principal/employer on any of the following grounds:
a. Expiration of the principal’s/employer’s business license or cessation of business or recruitment activity, after a period of one (1) year from expiration or cessation;
b. Upon written mutual agreement by the principal/employer and the licensed recruitment agency to terminate the agreement;
c. When the principal/employer is meted the penalty of disqualification from participation in the overseas employment program; and
d. Failure to comply with the undertaking submitted as requirement for accreditation.
What are the aspects of procedural due process which must be observed in the termination of employment?
Procedural due process requires that an employee must be given:
a. Written notice of the charges against him. The employer is bound to furnish him 2 notices, the written charge and the written notice of dismissal in case that is the penalty imposed
b. Formal investigation where he can defend himself personally or through a representative before he can be dismissed and disembarked from the vessel.
Illegal recruitment
Migrant Workers and Overseas Filipinos Act of 1995
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee 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 person, whether a non-licensee, non-holder, licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or employment;
(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, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;
(d) To include 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 person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers’ organization;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;
(h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor 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 or indirectly in the management of travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and
(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.
In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:
“(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;
“(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;
“(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter’s employment contract has been prematurely terminated through no fault of his or her own;
“(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;
“(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;
“(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers’ applications; and
“(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker’s insurance coverage.
“The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.
“In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.
“In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.
The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations.”
Jurisdiction of LA and NLRC
Migrant Workers and Overseas Filipinos Act of 1995
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
SEC. 10. Money Claims. - Notwithstanding 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 the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry.
Liability of Local Recruitment Agency and Foreign Employer
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as follows:
SEC. 10. Money Claims. - xxx
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from 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, or any unauthorized deductions from the migrant worker’s salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest at 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.
In case of a final and executory judgement against a foreign employer/principal, it shall be automatically disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and from recruiting and hiring Filipino workers until and unless it fully satisfies the judgement award.
Noncompliance with the mandatory periods for resolutions of case 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 resolution 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 disqualification to hold any appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incured under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.
Aliens exempted from license requirement
The following categories of foreign nationals are exempted from securing an AEP: (IT-LORD-PP)
- Accredited officers and personnel of International organizations of which the Philippine government has entered into an agreement with, and their dependent spouse desiring work in the Philippines
- Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government, subject to the rules of reciprocity
- All foreign nationals granted exemption by law
- Foreign national who are officers, staff, and employees working in the Embassy by reason of extra-territoriality principle, which is one of the generally accepted principles in International Law
- Refugees and stateless persons recognized by DOJ pursuant to Art. 17 of the UN Convention and Protocol relating to status of refugees and stateless persons
- Dependent spouse of any member of the Diplomatic corps, provided there is an existing reciprocity agreement and/or exchange of notes between the Philippine Government and their respective countries of origin
- Permanent resident foreign nationals and probationary or temporary resident visa holders under Sec. 13 (a-f) of the Philippine Immigration Act of 1940 and Section3 of the Alien Social Integration Act of 1995
- Foreign nationals who are officers and staff of peacekeeping or international organizations, either deployed in the Philippines or invited by non-governmental organizations as accredited, provided they will not engage in any gainful employment in the Philippines
The Regional Director may, motu proprio or upon petition, cancel or revoke an AEP after due process, based on the following grounds
DOLE D.O. No. 186-17, Sec. 13
a. Non-compliance with any of the requirements or conditions for which the AEP was issued
b. Misrepresentation of facts in the application including fraudulent misrepresentation, i.e. false statement that has a negative effect in the evaluation of the application made knowingly, or without belief in its truth, or recklessly whether it is true or false
c. Submission of falsified or tampered documents
d. Meritorious objection or information against the employment of the foreign national
e. Foreign national has been convicted of a criminal offense or a fugitive from justice
f. Employer terminated the employment of foreign national
g. Grave misconduct in dealing with or ill treatment of workers
May a person who has committed illegal recruitment be charged and convicted of estafa?
Yes. A person who has committed illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estate under Art. 315 of the Revised Penal Code. The crime of illegal recruitment is malum prohibitum where the criminal intent of the accused is necessary for conviction. In other words, a person convicted under the Labor Code may be convicted of offenses punishable by other laws.
Theory of Imputed Knowledge
The Theory of Imputed Knowledge ascribes the knowledge of the agent to the principal, not the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent.
In the case of Sunace, the agency was not aware of or was ignorant of the employment extension between the principal and the employee; hence, the agency was free from any liability.
Four-fold test
The four-fold test is a test to determine the existence of employer-employee relationship by considering the following factors:
1. Selection and engagement of the employee
2. Payment of wages
3. Power of dismissal
4. Power to control the employee’s conduct
What are the remedies of an employee whose service was terminated without just, valid or authorized causes as defined by their law or contract?
The following are the remedies of a migrant worker:
1. Full reimbursement of his placement fee with interest of 12% per annum;
2. Salaries for the unexpired portion of his employment contract
3. Exemplary, moral and other forms of damages if the acts or omission of the employer is tainted with bad faith, malice, or fraud.
What is the period of validity of AEP?
The AEP shall be valid for the position and the company for which it was issued for a period of 1 year, unless granted a longer period vis-a-vis the employment duration, as stated in the employment contract or other modes of agreement, but in no case shall exceed 3 years.
DO No. 221-21, Sec. 8
Control test
The control test, or “means-and-method control test,” determines whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished. The greater the supervision and control the hirer exercises, the more likely the worker is deemed an employee.
Two-tiered test
- The putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished
- The underlying economic realities of the activity or relationship. The proper standard of economic dependence which is an aspect to be considered under economic realities is whether the worker is dependent on the alleged employer for his continued employment in that line of business
What is the relationship between jeepney and taxi drivers and their operators under the boundary system?
The relationship between jeepney owners/operators on one hand and jeepney and taxi drivers on the other under the boundary system is that of employer-employee and not of lessor-lessee. In the case of jeepney owners/operators and jeepney drives, the former exercise supervision and control over the latter. The owner as holder of the certificate of public convenience must see to it that the driver follows the route prescribed by the franchising authority and the rules promulgated as regards its operation. The fact that the drivers do not receive fixed wages but get only that in excess of the so-called “boundary” they pay to the owner/operator is not sufficient to withdraw the relationship between them from that of employer and employee.
The existence of a vendor-vendee relationship between the operator and the driver under a boundary-hulog system which is essentially a contract to sell does not negate the existence of an employer-employee relationship.
When is an employee deemed regular?
- The employee has been engaged to perform activities usually necessary or desirable in the usual business or trade of the employer (Art. 295)
- A casual employee is allowed to work for at least 1 year, whether the same is continuous or broken, with respect to the activity in which he is employed and while such activity exists (Art. 295)
- An employee is allowed to work after the lapse of the probationary period (Art. 296)
Is a part-time employee a regular employee?
Yes. One’s regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has been in that particular job.
Since the work of regular seasonal employees are seasonal in nature, what happens to their employment during off-season?
The nature of their relationship with the employer is such that during off-season, they are temporarily laid off but during the season they are reemployed or when their services are needed. They are not, strictly speaking, separated from the service but are merely considered as on leave of absence without pay until they are reemployed. Their employment relationship is never severed but only suspended.
Contractor
A contractor refers to any person or entity engaged in a legitimate contracting or subcontracting arrangement providing services for a specific job or undertaking farmed out by principal under an agreement.
Labor Code, art. 82; Omnibus Rules Implementing the Labor Code, Book III, Rule I, secs. 1-2
SECTION 2. Exemption. — The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the conditions set forth herein:
(a) Government employees whether employed by the National Government or any of its political subdivision, including those employed in government-owned and/or controlled corporations;
(b) Managerial employees, if they meet all of the following conditions:
(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof.
(2) They customarily and regularly direct the work of two or more employees therein.
(3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.
(c) Officers or members of a managerial staff if they perform the following duties and responsibilities:
(1) The primary duty consists of the performance of work directly related to management policies of their employer;
(2) Customarily and regularly exercise discretion and independent judgment; and
(3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and
(4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.
(d) Domestic servants and persons in the personal service of another if they perform such services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer’s household.
(e) Workers who are paid by results, including those who are paid on piece-work, “takay,” “pakiao” or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.
(f) Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.
Overtime work – Labor Code, arts. 87-90; Omnibus Rules Implementing the Labor Code, Book III, Rule I, secs. 8-10
SECTION 10. Compulsory overtime work. — In any of the following cases, an employer may require any of his employees to work beyond eight (8) hours a day, provided that the employee required to render overtime work is paid the additional compensation required by these regulations:
(a) When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive;
(b) When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities;
(c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other causes of similar nature;
(d) When the work is necessary to prevent loss or damage to perishable goods;
(e) When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; or
(f) When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
In cases not falling within any of these enumerated in this Section, no employee may be made to work beyond eight hours a day against his will.
SECTION 6. When work on rest day authorized. — An employer may require any of his employees to work on his scheduled rest day for the duration of the following emergencies and exceptional conditions:
(a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;
(b) In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer;
(c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;
(d) To prevent serious loss of perishable goods;
(e) Where the nature of the work is such that the employees have to work continuously for seven (7) days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases; and
(f) When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
No employee shall be required against his will to work on his scheduled rest day except under circumstances provided in this Section: Provided, However, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, subject to the provisions of Section 7 hereof regarding additional compensation.
Holidays – Labor Code, art. 94; Omnibus Rules Implementing the Labor Code, Book III, Rule IV, secs. 1-11
Section 3. As used in the rule, the term ‘regular holiday’ shall exclusively refer to:
New Year’s Day, Maundy Thursday, Good Friday, Araw ng Kagitingan (April 9), Labor Day, Independence Day, National Heroes’ Day (the last Sunday/Monday of August), Bonifacio Day (Nov 30), Christmas, Rizal Day (Dec 30), Eid ul-Fitr, Eid ul-Adha, Nationwide special days shall include the first of November and the last day of December.
As used in this Rule legal or regular holiday and special holiday shall now be referred to as ‘regular holiday’ and ‘special day’, respectively.
Special holidays: Ninoy Aquino Day (Aug 21), All Saints Day, Last Day of the Year, Feast of the immaculate Conception of Mary
Rule on successive holiday
SECTION 10. Successive regular holidays. — Where there are two (2) successive regular holidays, like Holy Thursday and Good Friday, 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.
What are compensable hours?
- All time during which an employee is required to be on duty or to be at a prescribed workplace
- All time during which an employee is permitted to work
- Rest periods of short duration during working hours which shall not be more than 20 minutes shall be counted as hours worked (IRR of the Labor Code)
What are the exceptions to the general rule on normal hours of work?
- Health personnel in cities and municipalities with a population of at least 1,000,000 or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day, for 5 days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for 6 days or 48 hours, in which case, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day
- Compressed Workweek
Health personnel
Resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants, and all other hospital or clinic personnel
Art. 83
What are the rules on power interruptions or brownouts with respect to compensable hours?
DOLE Policy Instruction No. 36 provides for the following rules:
1. Brownouts of short duration not exceeding 20 minutes are compensable hours worked
- Brownouts running for more than 20 minutes may not be treated as hours worked provided any of the following conditions are present:
a. The employees can leave their workplace or go elsewhere whether within or without the work premises
b. The employees can use the time effectively for their own interest
Compressed Work Week
The CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than 6 days but the total number of normal hours per week remains at 48 hours. The normal workday is increased to more than 8 hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is 5 days. (DOLE Advisory No. 02-04)
Conditions of a valid CWW scheme
- The scheme is expressly and voluntarily supported by majority of the employees affected
- In firms using substances, or operating in conditions that are hazardous to health, a certification is needed from an accredited safety organization or the firm’s safety committee that work beyond 8 hours is within the limits or levels of exposure set by DOLE’s occupational safety and health standards
- The DOLE-RO is duly notified
Effects of CWW
- Work beyond 8 hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed 12 hours;
XPN: where there is a more favorable practice existing in the firm
- Employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice
- Adoption of the CWW scheme shall (in no case result in diminution of existing benefits. Reversion to the normal 8-hour workday shall not constitute a diminution of benefits. The revision shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.
Flexible Work Arrangement
Flexible wok arrangements refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays or workweek. The following are the flexible work arrangements which may be considered:
1. Compressed workweek
2. Reduction of workdays - where the normal workdays per week are reduced but should not last more than 6 months
3. Rotation of workers - where the employees are rotated or alternatively provided work within the workweek
4. Forced leave - refers to one where the employees are required to go on leave for several days or weeks utilizing their leaves credit if there are any
5. Broken time schedule - where the work-hours within the day or week remain
6. Flexi-holidays schedule - where the employees agree to avail the holidays at some other days provided there is non-diminution of existing benefits as a result of such arrangements
7. Gliding or flexi-time schedule - where the employees are required to complete the core workhours in the establishment but are free to determine their arrival and departure
What is needed prior implementation of the flexible work arrangements?
The employer shall notify the Department through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the flexible work arrangements.
Is night shift differential waivable?
No. NSD is not waivable. Additional compensation for nighttime work is founded on public policy.
When can overtime work be compelled by an employer?
War-LUNS
- 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
- 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
- When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature
- When the work is necessary to prevent loss or damage to perishable goods
- Where the completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer
Enumerate the instances when an employer may compel his/her employees to work on a rest day
WE-CAMP
- When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon
- In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety
- Where the nature of the work is such that the employees have to work continuously for 7 days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases
- In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures
- In cases of urgent work to be performed on machineries, equipment, or installations to avoid serious loss which the employer would otherwise suffer
- To prevent serious loss of perishable goods
IRR of the Labor Code
Computation of Additional Compensation
- Work on scheduled rest day: 30% of regular wage
- Work on Sunday when it is his established rest day: 30% of regular wage
- No regular workdays and no specific rest days: 30% of regular wage for work performed on Sundays and holidays
- Work on special holiday: 30% of regular wage
- Work on special holiday falling on scheduled rest day: 50% of regular wage
- Work on regular holiday falling on scheduled rest day: 160% of regular wage
Exempted Employers from 13th month pay
The following employers are still not covered by P.D. No. 851:chanroblesvirtuallawlibrary
a. The Government and any of its political subdivisions, including government-owned and controlled corporations, excepts those corporations operating essentially as private subsidiaries of the Government;
b. Employers already paying their employees a 13th month 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 are paid a fixed amount for performing 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 grant the required 13th month pay to such workers.
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 on paragraph (b) hereof shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 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. Where an employer pays less than required 1/12th of the employees basic salary, the employer shall pay the difference.
Managerial vs. Rank-and-File employee
The Labor Code distinguishes a rank-and-file employee from a managerial employee. It provides that a managerial employee is one who is vested with powers of prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall discharge, assign or discipline employees, or to effectively recommend such managerial actions. All employees not falling within this definition are considered rank-and-file employees.
The above distinction shall be used as guide for the purpose of determining who are rank-and-file employees entitled to the mandated 13th month pay.
Wages of deceased employee
Omnibus Rules Implementing the Labor Code, Book III, Rule VIII
SECTION 6. Wages of deceased employee. — The payment of the wages of a deceased employee shall be made to his heirs without the necessity of intestate proceedings. When the heirs are of age, they 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. In case any of the heirs is a minor, such affidavit shall be executed in his behalf by his natural guardian or next of kin. Upon presentation of the affidavit to the employer, he shall make payment to the heirs as representative of the Secretary of Labor and Employment.
Who are the employers exempted from the application of PD 851, requiring all employers to pay their employees 13th month pay?
- Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing 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 grant the required 13th month pay to such workers
- Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance
NOTE: The term “its equivalent” as used on paragraph (b) hereof shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 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. Where an employer pays less than required 1/12 of the employees’ basic salary, the employers shall pay the difference.
- The Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government
Under RA 10361, otherwise known as “Domestic Workers Act” or “Batas Kasambahay,” domestic workers are now entitled to 13th month pay.
What is meant by “basic salary” for the purpose of computing the 13th month pay?
The basic salary of an employee for the purpose of computing the 13th month pay shall include all remunerations or earning paid by this employer for services rendered but does not include allowances and monetary benefits which are not 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. However, these salary-related benefits should be included as part of the basic salary in the computation of the 13th month pay if by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees.
Principle of Fair Wage for Fair Work
Under the principle of fair day’s wage for a fair day’s labor, if there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. If there is no work performed by the employee, there can be no wage.
Equal Pay for Equal Work
The concept of “equal pay for equal work” means that persons who work with substantially equal qualifications, skill, effort, and responsibility, under similar conditions, should be paid similar salaries. Whenever an employer gives employees the same position and rank, the presumption is that these employees perform equal work.
Diminution of benefits
Nothing in this Book (Conditions of Employment) shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of the Labor Code (Art. 100)
This rule only applies if the the benefit is based on any of the following:
1. An express policy
2. A written contract
3. A company practice
Exceptions to the Non-Diminution Rule
NEW-CRIB
1. Negotiated benefits
2. Correction of error
3. Wage order compliance
4. Contingent benefits of conditional bonus
5. Reclassification of position
6. Productivity incentives
7. Benefits on reimbursement basis
What happens if SIL is not availed of?
SIL shall be commutable to its money equivalent if not used or exhausted at the end of the year.
Under the Kasambahay Law, a domestic worker who has rendered at least 1 year of service shall be entitled to an annual service incentive leave of 5 days with pay, Provided That any unused portion of said annual leave shall NOT be cumulative or carried over to the succeeding years. Unused leaves shall NOT be convertible to cash.
Expanded Maternity Leave Benefits
All covered female workers in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, shall be granted 105 days maternity leave with full pay and an option to extend for an additional 30 days without pay: Provided, That in case the worker qualifies as a solo parent under RA 8972, or the “Solo Parents Welfare Act,” the worker shall be granted an additional 15 days maternity leave with full pay. (RA 11210, 105-day Expanded Maternity Leave Law)
Note: In cases of miscarriage or emergency termination of pregnancy, 60 days maternity leave with full pay shall be granted.
Is a pregnant woman allowed to claim maternity benefits and sickness benefits simultaneously?
No. Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided under RA 1161, as amended, otherwise known as “Social Security Law,” for the same period for which daily maternity benefits have been received. However, under the Circular 36-V issued by the SSS dated May 24, 1997, if they have qualifying contributions schedule, they shall be entitled to maternity benefits.
Maternity benefit in case of termination
If the childbirth, miscarriage, or emergency termination of pregnancy occurs within 15 calendar days from termination of the employment, the right to maternity leave has already accrued and should thus be granted.
Paternity Leave
Paternity leave refers to the leave credits granted to a married male employee to allow him to earn compensation for 7 working days without reporting for work, provided that his spouse has delivered a child or had a miscarriage or an abortion for the purpose of lending support to his wife during her period of recovery and/or the nursing of the newly born child.
- Applicable to first 4 deliveries of the legitimate spouse with whom he is cohabiting.
- Should have rendered at least 6 months of service, whether continuous or broken
Special leave benefit for women under RA 9710
Gynecological leave refers to a female employee’s leave entitlement of 2 months with full pay from her employer based on her gross monthly compensation (i.e. monthly basic salary plus mandatory allowances fixed by the regional wage boards) following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least 6 months for the last 12 months
What if the female employee had undergone gynecological surgery during maternity leave?
She is entitled only to the difference between the special leave benefit and the maternity leave benefit.
Violence against women and their children under RA9262
VAWC refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which results in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment, or arbitrary deprivation of liberty.
What is the leave benefit under RA9262?
At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case, a victim of VAWC who is employed shall be entitled to a paid leave of up to 10 days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations and other existing laws and company policies, extendible when the necessity arises as specified in the protection order.
Special Groups of Employees
- Women – Labor Code, arts. 130 and 132-136
- Minors – R.A. No. 7610, as amended by R.A. No. 9231
- Kasambahays – R.A. No. 10361
- Homeworkers – Labor Code, arts. 151-153
- Night Workers – Labor Code, arts. 154-161
- Apprentices and Learners – Labor Code, arts. 58-60 and 73-74
- Persons with Disabilities – R.A. No. 7277, as amended by R.A. No. 9442, R.A. No. 10070 and R.A. No. 10524
Children below fifteen (15) years of age shall not be employed except:
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided, however, That his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or
2) Where a child’s employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
(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
(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.
In the above-exceptional cases where any such child may be 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.
For purposes of this Article, the term “child” shall apply to all persons under eighteen (18) years of age.
R.A. No. 7610, as amended by R.A. No. 9231
Hours of Work of a Working Child
(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;
(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.
R.A. No. 7610, as amended by R.A. No. 9231
Which court has jurisdiction over cases falling under Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act?
Sec. 16-A. Jurisdiction - The family courts shall have original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are no family courts yet, the regional trial courts and the municipal trial courts shall have concurrent jurisdiction depending on the penalties prescribed for the offense charged.
The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of filing.
If the preliminary investigation establishes a prima facie case, then the corresponding information shall be filed in court within forty eight (48) hours from the termination of the investigation.
Trial of cases under this Act shall be terminated by the court not later than ninety (90) days from the date of filing of information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case.
A working child permit is required if the child below 15:
a. Will be engaged in public entertainment or information regardless of his/her role in a project such as lead supporting, guest, or regular extra. This includes projects which are non-profit, advocacy materials or political advertisements
b. is a foreign national and will be engaged in public entertainment or information in the Philippines
c. will be engaged as regular extra or as part of a crowd and is included the script or storyboard
d. Has been selected for a project after undergoing auditions, workshops or VTR screenings, or
e. Has been selected as semi-finalist in a singing, dance or talent contest for a television show
A working child permit is NOT required if the child below 15:
a. Is a spot extra or cast outright on the day of filming or taping of a project
b. Will join auditions or VTR screenings
c. Is part of the audience of a live tv show unless the child’s participation is expected
d. Is picked or chosen as a contestant from the audience of a live tv show
e. Is a contestant of a singing, dance, or talent contest for a tv show but has not yet been selected as a semi-finalist
f. Is a recipient of gift-giving activities in tv
g. Is a participant in school-related performance such as play, skit, or recital
h. is a participant in sports activities, trainings, or workshops aimed at developing the child’s talent or skills
i. Will be featured in a documentary material
Who administers the working child’s income?
The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than 20% of the child’s income may be used for the collective needs of the family.
The income of the working child and/or the property acquired through the work of the child shall be administered by both parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
When the child’s gross earnings in a year amount to at least P200,000, the administrator shall set up a Trust Fund for the child where at least 30% of such amount shall be deposited. For a child earning less than P200,000 a year, at least 30% of his/her income may be deposited in a Savings account each time the child receives an income.
The accumulated savings shall be immediately transferred to the Trust Fund should his/her total gross income be at least P200,000. The child shall have full control over the Trust Fund upon reaching the age of majority. The administrator shall render a semi-annual accounting of the Trust Fund to the concerned Regional Office.
Domestic worker/Kasambahay
Domestic worker or kasambahay refers to any person engaged in domestic work within an employment relationship, whether on a live-in or live-out arrangement basis such as, but not limited to the following: general househelp, nursemaid or Maya, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. The term shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e., boon, transportation, school projects and school activities.
The criterion of a household is the personal comfort and enjoyment of the family of the employer. The mere fact that the householder is working within the premises of the business of the employer and in relation to or in connection with its business, warrants the conclusion that said householder is and should be considered as a regular employee of the employer.
Who are not contemplated within the concept of a domestic worker?
a. Service providers - undertake to perform a service on their own for a household, free from the control of the employer except as to the results thereof
b. Family drivers
c. Children under foster family arrangement - they live with a family or household of relatives and are provided access to education and given an allowance
d. Any person who performs domestic work occasionally or sporadically and not on an occupational basis
- must be at least 15 years old
How are domestic workers hired?
- Directly
- Through a private employment agency (PEA) licensed by the Regional Office of the DOLE
The PEA shall register with the Barangay where they recruit, by representing a copy of its valid license and authority to recruit.
How is the employment of a Kasambahay terminated?
- With just cause - at any time, as long as any of the following circumstances are present: (MIFOV)
a. Misconduct or willful disobedience to lawful order in connection with the work
b. Gross or habitual neglect or inefficiency
c. Fraud or willful breach or trust
d. Commission of a crime or offense by the kasambahay against the person of the employer or any immediate member of the employer’s family
e. Violation by the kasambahay of the terms and conditions of the employment contract
Note: Pregnancy and marriage of the kasambahay are not valid grounds for termination of employment (IRR of RA10361, Domestic Workers Act)
- Without just cause - it depends on whether or not there is a stipulated period in the employment contract
a. There is stipulated period - at the end of the stipulated period
b. There is no stipulated period - by giving 5 days advance notice before the intended termination. If this is not followed, the employer is liable for salary plus an indemnity equivalent to 15 days pay.
Who has jurisdiction to resolve labor-related disputes between the employer and kasambahay?
A request for assistance shall be filed before the DOLE Field/Provincial/Regional Office or DOLE Attached Agency for conciliation-mediation proceedings. The concerned DOLE Filed/Provincial Officer or DOLE attached agency shall issue the referral and transmit the same, including the entire record of the conciliation-mediation proceedings previously conducted to the DOLE Regional Office having jurisdiction over the workplace, within one day, should the parties fail to settle amicable under any of the following circumstances:
a. Expiration of the 30-day mandatory conciliation-mediation period, unless there is a request for extension;
b. Failure of the parties to reach an agreement within the 30-day mandatory conciliation-mediation period
c. Non-appearance of the responding party in 2 scheduled consecutive conferences
d. Non-appearance of the responding party in 2 scheduled consecutive conferences despite due notices
e. Non-settlement of one or some issues bot not all in RFAs with multiple issues
f. Non-compliance with the Agreement
Under RA 7877, 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 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 or not by the object of said act.
How is work-related sexual harassment committed?
Work-related Sexual Harassment is committed when:
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee.
The above acts would impair the employee’s rights or privileges under existing labor laws; or
The above acts would result in an intimidating, hostile or offensive environment for the employee.
Gravamen of the offense in sexual harassment
The gravamen of the offense in sexual harassment is not the violation of the employee’s sexuality but the abuse of power by the employer.
Prescriptive period for filing complaint under RA7877
3 years
Safe spaces
Safe spaces refer to the following spaces where persons are supposed to be protected from gender-based sexual harassment:
- Public spaces - streets, public parks, schools, malls, bars, restaurants, transportation terminals, government offices, PUVs, hotels, and other privately-owned places open to the public
- Online platforms - those which use information and communications technology
- Workplaces or employment environments - all sites where work is being undertaken by an employee within or outside the premises of the usual place of business of the employer
- Educational or training institutions - all schools, whether public or private
Laws prohibiting discriminatory practices
- Anti-Age Discrimination in Employment Act – R.A. No. 10911
- The Magna Carta of Women (Gender and Marital Status) – R.A. No. 9710
- The Responsible Parenthood and Reproductive Health Act of 2012 (Pregnancy) – R.A. No. 10354, sec. 23(c)
- Illness – DOLE D.A. No. 05-10 (Guidelines for the Implementation of a Workplace Policy and Program on Hepatitis B); DOLE D.O. No. 73-05 (Guidelines for Instituting a Comprehensive and Unified Policy for Tuberculosis Control in the Philippines)
- Solo Parents’ Welfare Act of 2000 – R.A. No. 8972, as amended by R.A. No. 11861, sec. 7
- Magna Carta for Disabled Persons – R.A. No. 7277, as amended
What are the exceptions to the rule that it is unlawful for employers to set age limitations?
- Age is a bona fide occupational qualification reasonably necessary in the normal operation of a particular business or where the differentiation is based on reasonable factors other than age
- The intent is to observe the terms of a bona fide seniority system that is not intended to evade the purpose of this Act
- The intent is to observe the terms of a bona fide employee retirement or a voluntary early retirement plan consistent with the purpose of this Act: Provided, That such retirement or voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or
- The actions is duly certified by the DOLE Secretary in accordance with the purpose of the Rules
Who are compulsorily covered by the Social Security System?
- Employees and their employers - all employees including kasambahays or domestic workers not over 60 years of age and their employers (RA No. 11199, otherwise known as “Social Security of 2018,” Sec, 9)
- Self-employed - includes, but not limited to:
a. Self-employed professionals
b. Partners and single proprietors of businesses
c. Actors and actresses, directors, scriptwriters, and news correspondents, who do not fall within the definition of the term “employee” in Sec. 8(d) of RA 11199
d. Professional athletes, coaches, trainers, and jockey; and
e. Individual farmers and fishermen - Overseas Filipino Workers - all sea-based and land-based OFW as defined under RA 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995 as amended, provided that they are not over 60 years of age
- A farmer, fisherman, or a worker in the informal sector (IS) - an IS member being defined as one whose income is irregular or seasonal and who may be registered as a self-employed member under the SSS AlkanSSSya Program (SSS Membership primer)
Who are voluntarily covered by the SSS Law?
- Non-working spouses who devote full-time to managing the household and family affairs unless they are also engaged in other vocation or employment which is subject to mandatory coverage
- OFW upon the termination of their employment overseas
- Filipino permanent migrants, including Filipino immigrants, permanent residents, and naturalized citizens of their host countries
- An employee under compulsory coverage who has been separated from employment who continues to pay contribution
- A self-employed member who realizes no income in any given month who continues to pay contribution
Enumerate the employment services which are exempted from compulsory coverage under the SSS Law
- Services where there is no employee-employer relationship in accordance with existing labor laws, rules, regulations, and jurisprudence
- Serves performed in the employ of the Philippine Government or instrumentality or agency thereof
- Services performed in the employ of the foreign government or international organization or their wholly-owned instrumentality unless there is an agreement with the Philippine Government for the inclusion of such employees in the SSS
- Such other services performed by temporary and other employees which may be excluded by regulation of the Commission
Who are dependents under the SSS Law?
- Legal spouse entitled to receive support from the member
- Legitimate, legitimated, or legally adopted and illegitimate child who is unmarried, not gainfully employed, and has not reached 21 years of age, or if 21 years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally; and
- Parent who is receiving regular support from the member
Who are the primary beneficiaries under the SSS Law?
- Dependent spouse until he/she remarries
- Dependent spouse who has not cohabited or entered in a “live-in” relationship before or after the death of the member
- Dependent legitimate, legitimated, or legally adopted and illegitimate children
NOTE: Where there are legitimate or illegitimate children, the former shall be preferred. The dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated, or legally adopted children. In the absence of the dependent legitimate, legitimated, or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to 100% of the benefits.
The Supreme Court recently held unconstitutional the stipulation under Sec. 13-A (c) which provides that the applicant for survivorship pension must be the legitimate spouse of the pensioner as of the date of the latter’s disability. The Court finds the proviso “as of the date of disability” under Section 13-A(c) void for being violative of the equal protection and due process clauses of the Constitution.
Benefits under the SSS Law
- Sickness benefit
- Maternity benefit
- Disability benefit
- Retirement benefit
- Death benefit
- Funeral benefit
- Unemployment benefit or involuntary separation benefit
- Employee’s compensation program
Types of retirement benefits
- Monthly pension - a monthly specified cash amount that a qualified member or a qualified beneficiary will receive on account of a permanent total disability, retirement, or death
- Lump sum amount - a one-time payment granted to a covered member who has reached the required retirement age and who does not qualify for a full pension benefit under the Social Security Act of 2018, provided, that he/she is separated from employment and is not continuing payment of contributions to the SSS on his/her own. The amount of benefit is equivalent to the total contributions paid by the member and/or on his/her behalf.
Requisites for entitlement to monthly pension
- A member must have at least 120 monthly contributions prior to the semester of his retirement
- Has reached 60 years old and is already separated from employment or has ceased to be self-employed, except
a. In the case of an underground mineworker, at least 55 years old effective March 13, 1998; and
b. In the case of an underground or a surface mineworker, at least 50 years old effective April 27, 2016; or - Is at least 65 years old, except
a. In the case of an underground mineworker effective March 13, 1998 or a surface mineworker effective April 27, 2016, at least 60 years old; and
b. In the case of a racehorse jockey, at least 55 years old effective May 24, 2016
Who are entitled to death benefits under the SSS Law?
Upon the death of the member who has paid at least 36 monthly contributions prior to the semester of death, his primary beneficiaries shall be entitled to the monthly pension provided that if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum equivalent to 36 times the monthly pension.
NOTE: If he has not paid the required 36 monthly contributions, his primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or 12 times the monthly pension, whichever is higher.
Enumerate the permanent total disabilities
- Complete loss of sight of both eyes
- Loss of 2 limbs at or above the ankle or wrists
- Permanent complete paralysis of 2 limbs
- Brain injury resulting to incurable imbecility or insanity
- Such cases as determined and approved by the SSS and/or the Commission
What constitutes the funeral benefit under the SSS Law?
The funeral benefit is intended to help defray the cost of funeral expenses upon the death of a member, including permanently totally disabled or retired member and is equivalent to the following amounts paid either in cash or in kind, depending on the date of contingency and may be adjusted as determined by the Commission
1. P12,000 effective May 24, 1997
2. P15,000, effective September 1, 1998
3. P20,000 effective September 1, 2000
4. A variable amount ranging from a minimum of P20,000 to a maximum of P40,000 depending on the member’s number of contributions and Average Monthly Salary Credit (AMSC), effective August 1, 2015
Sickness benefit under the SSS Law
It is a Daily Cash allowance paid by the employer to the member who is unable to work due to sickness or injury for each day of compensable confinement or a fraction thereof, or by the SSS, if such person is unemployed or is self-employed, OFW, a voluntary member who have been previously covered either as employed/self-employed/OFW and non-working spouse.
The daily sickness allowance shall be equivalent to 90% of the member’s average daily salary credit.
Eligibility requirements to qualify for the grant of sickness benefit under the SSS Law?
- He has paid at least 3 monthly contributions within the 12-month period immediately before the semester of sickness or injury
- Was confined for at least 4 days either in the hospital or elsewhere as defined by the SSS
- Has notified the employer, if employed, or SSS, if unemployed or self-employed/voluntary member of the sickness or injury; and
- Has used up all current company sick leave with pay for the current year, if employed, except sea-based OFWs.
NOTE: No contributions paid retroactively by self-employed/voluntary member/OFWs shall be used in determining his/her eligibility to sickness benefit wherein the date of payment is within or after the semester of contingency.
How many days in a year can a member avail of the sickness benefit?
A member can be granted a sickness benefit for a maximum of 120 days in 1 calendar year.
Note: Any unused portion of the allowable 120-day sickness benefit cannot be carried forward not added to the total number of allowed compensable days for the following year. The sickness benefit shall be paid for not more than 240 days on account of the same illness. If the sickness or injury still persists after 240 days, his claim will be considered a disability claim.
May sickness and disability benefits be availed simultaneously?
Yes, provided that:
1. Sickness/injury and disability are not related; and
2. The member meets all the qualifying conditions for the grant of sickness and disability benefits.
What are the eligibility requirements to qualify for the grant of maternity leave benefit under SSS Law?
- Has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of childbirth or miscarriage or emergency termination of pregnancy.
- Has notified her employer of the pregnancy and expected date of childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations issued by the Commission.
- If the female member is self-employed including those in the informal economy, voluntary member, or an OFW, notice shall be given directly to SSS.
Note: Notwithstanding the above rules, the failure of the pregnant employed female member to notify the employer shall not bar her from receiving the maternity benefits. Subject to the guidelines to be prescribed by the SSS.
Who are covered by the GSIS Law?
- All government personnel, whether elective or appointive, irrespective of status of appointment, provided they are receiving fixed monthly compensation and have not reached the mandatory retirement age of 65 years
- An employee who is already beyond the mandatory retirement age of 65 shall be compulsorily covered and be required to pay both the life and retirement premiums under the following situations:
- An elective official who at the time of election to public office is below 65 years of age and will be 65 years or more at the end of his term of office, including the period/s of his re-election to public office thereafter without interruption
- Appointive officials who, before reaching the mandatory age of 65, are appointed to government position by the President of the Republic of the Philippines and shall remain in government service at age beyond 65.
- Contractual employees including casuals and other employees with an employee-government agency relationship, provided they are receiving fixed monthly compensation and rendering required number of working hours for the month
Who are excluded from the GSIS Law?
- Uniformed personnel of the Armed Forces of The Philippines (AFP)
- Uniformed personnel of the Philippine National Police (PNP)
- Uniformed personnel of the Bureau of Fire Protection (BFP)
- Uniformed personnel of the Bureau of Jail Management and Penology (BJMP)
- Barangay and Sanggunian Officials who are not receiving fixed monthly compensation
- Contractual employees who are not receiving fixed monthly compensation; and
- Employees who do not have monthly regular hours of work and are not receiving fixed monthly compensation
Who are the dependents under GSIS Law?
- Legitimate spouse dependent for support upon the member or pensioner
- Legitimate, legitimated, legally adopted child including illegitimate child who is unmarried, not gainfully employed, not over the age of majority or is over the age of majority but incapacitated and incapable of self-support employment due to mental or physical defect acquired prior to age of majority
- Parents who are dependent upon the member for support.
Benefits under the GSIS Law
- Life Insurance benefit
- Retirement benefit
- Separation benefit
- Unemployment benefit or involuntary separation benefit
- Disability benefit
- Survivorship benefit
- Funeral benefit
- Employees’ compensation benefit
