LABOR 1 MIDTERMS Flashcards
RECRUITMENT AND PLACEMENT
Refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.
SEAMAN
Any person engaged in a vessel in maritime navigation
OVERSEAS EMPLOYMENT
Employment of worker outside the Philippines
LIMITATIONS ON RECRUITMENT AND PLACEMENT ACTIVITIES
Except as provided in the Code, no person or entity other than the public employment offices shall engage in the recruitment and placement of workers.
BAN ON DIRECT HIRING
No employer may hire a Filipino worker for overseas employment, except through the Boards and entities authorized by the SOLE.
[ EXCEPTION ] Direct-hiring by members of the diplomatic corps, international organizations, and such other employers as may be allowed by the SOLE is exempted from this provision.
WHICH ENTITIES ARE PROHIBITED FROM ENGAGING IN RECRUITMENT AND PLACEMENT ACTIVITIES?
Travel agencies and sales agencies of airline companies - Whether for profit or not.
WHAT IS THE NATIONALITY REQUIREMENT FOR CITIZENS, CORPORATIONS, PARTNERSHIPS, OR ENTITIES, TO BE ABLE TO ENGAGE IN RECRUITMENT OR PLACEMENT?
At least 75% of the voting capital stock
ILLEGAL RECRUITMENT
Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, and promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority.
Provided, that 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.
OFW
Filipino who is to be engaged, is engaged, or has been engaged in remunerated activity in a country of which he or she is not an immigrant, citizen, or permanent resident or is not awaiting naturalization, recognition, or admission, whether land-based or sea-based regardless of status; excluding a Filipino engaged under a government-recognized exchange visitor program for cultural and educational purposes. For purposes of this provision, a person engaged in remunerated activity covers a person who has been contracted for overseas employment but has yet to leave the Philippines, regardless of status, and includes “Overseas Contract Workers”. The term “OFW” is synonymous to “Migrant Worker
What is one of the most important functions of the DMW Secretary?
To terminate, suspend, or impose a total ban on the deployment of migrant workers, when upon their assessment, after consultation with the advisory on migration and development and the Secretary of the DFA in consonance with Republic Act No. 8042, as amended, the conditions in the receiving country or region are inimical and not protective of the best interest, welfare, and safety of migrant workers;
ILLEGAL RECRUITMENT
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:
Elements of Illegal Recruitment
- That they have no valid license or authority required by law
- That they undertake any of the prohibited acts under Art. 34 of the LC, or any acts contrary to Art. 13 (b) of the LC
- For large scale IR, that the act be committed AGAINST 3 or more persons, individually or as a group
What are the requirements for the employment of a Non-Resident Alien?
- Alien Employment Permit from the Department of Labor
- A finding that there is no Philippine counterpart who is willing, able, and competent to perform the services needed for such application in which the alien is desired.
- Working permit from the Bureau of Immigration issued before Employment (Mostly for benefit purposes)
EMPLOYER
Includes any person, natural or juridical, acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations.
LABOR CODE: Includes any person acting in the interest of an employer, directly or
indirectly. The term shall not include any labor organization or any of its officers or agents
except when acting as employer.
ELEMENTS OF FOUR FOLD TEST
To ascertain the existence of an employer-employee relationship, the four-fold test shall apply, to wit: (1) The selection and engagement of the employee; (2) The payment of wages; (3) The power of dismissal; and (4) The power to control the employee’s conduct, or the so called “control-test.”
INDEPENDENT CONTRACTOR
One who carries on a distinct and independent business, and undertakes to perform the job, work, or service, in their own account, and under their own responsibility, according to their own manner and method, free from the control and direction of the principal, in all matters concerned with the performance of the work, except as to the results thereof.
CONTRACTOR OR SUBCONTRACTOR
Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.
LABOR ONLY CONTRACTING
There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
TEST TO DETERMINE IF ONE IS AN INDEPENDENT CONTRACTOR OR NOT
The test to determine the existence of independent contractorship is whether one has contracted to do the work according to his own methods and without being subject to the control of the employer, except only as to the result of the work
DEFINITION OF LABOR ONLY CONTRACTING
Arrangement where the contractor or subcontractor merely recruits, supplies, or places workers to perform a job or work for a principal.
LABOR CODE: There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
TRUE OR FALSE – Even if the C/S is legitimate and satisfies all the requirements for permissible contracting, if the employees are performing work directly related to the main business of the principal, then they shall be considered as employees of the C/S.
FALSE. They are considered as employees of the PRINCIPAL. To allow such an arrangement where they are considered as employees of the C/S would permit the principals to avoid hiring regular employees, denying employees the right to security of tenure.
Under DO 18-A-11, what must be considered to determine whether an entity is a legitimate contractor or is engaged in LOC?
- Whether it is registered
- Whether it has substantial capital or investment;
- Whether the service agreement ensures compliance with all the rights and benefits under labor laws;
- Whether the activities being performed by the employees are usually necessary or desirable to the operation of the company, or directly related to the main business of the principal within a definite or predetermined period; and
- Whether the contractor exercises the right to control the performance of the work of the employees
DEFINITION OF MANAGERIAL EMPLOYEES UNDER ART. 82
Refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff.
UNDER THE IRR:
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.
