Labor Flashcards
Art 2. Sec. 18
The state affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
Art. 13. Sec 3. (1)
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment opportunities for all.
Art. 13. Sec. 14
The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.
NCC 1700
The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.
NCC 1701
Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.
Art. 13 Sec. 3
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.
Cardinal Rights
- right to self-organization
- collective bargaining and negotiations
- peaceful concerted activities including the right to strike in accordance with law
- security of tenure
- humane conditions of work
- living wage
- participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
- Fair share in the fruits of production
RPC 289
- The offender employs violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work;
- It is for the purpose of Organizing, Maintaining or Preventing coalitions, or capital or labor, or strike of laborers or lock-out employees; and
- The acts do not constitute a more serious offense in accordance with the provisions of this Code.
Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. — The penalty of arresto mayor and a fine not exceeding 60,000.00 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code.
Art. 13 Sec. 3 (3)
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.
Art. 13 Sec. 3 (4)
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.
When may an AEP be issued?
An AEP may be issued to a non resident / applicant employer after a determination of the non availability of a person in the Philippines who is competent, willing and able to perform the task for which the alien is desired
Is the employer’s right to employ absolute?
No. The employer’s right to employ is not absolute. The legislature has the power to make regulations subject to the reasonableness and public interest test
Apprentice
Any trade, form of employment or occupation for a duration of at least 3 months but not exceeding 6 months of practical on the job training supplemented by theoretical instruction
Qualification of an Apprentice
- At least 15 yo
- Possesses vocational aptitude and capacity for appropriate tests
- Possesses ability to comprehend and follow oral and written instructions
- Physically fit
Employment of Apprentices
- Only in Highly Technical Industries
- In apprenticeable occupations approved by the MLE
Highly Technical Industries
Trade, business, industry or enterprise which utilizes the application of advanced technology
Apprenticeable occupation
Officially endorsed by a tripartite body and approved for apprenticeship by TESDA
Learners
persons hired as trainees in SEMI-SKILLED and other industrial occupations which are NON-APPRENTICEABLE and which may be learned through practical on the job training in a period which SHALL NOT EXCEED 3 MONTHS
What is Labor
As an act: Exertion by human beings of physical or mental efforts, or both, towards the production of goods and services.
- As a sector of society: That sector or group in a society, which derives its livelihood chiefly from rendition of work or services in exchange for compensation under managerial direction (Mendoza, 2001).
- Refers to workers, whether agricultural or nonagricultural
Social vs Labor vs Welfare Legislation
- Social Legislation - Laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice.
- Labor Legislation - Statutes, regulations and jurisprudence governing the relations between capital and labor. It provides for certain employment standards and a legal framework for negotiating, adjusting and administering those standards and other incidents of employment.
- Welfare Legislation - minimum economic security of the worker and his family in case of loss of earnings due to death, old age, disability, dismissal, injury or disease.
Arts. 1701-1703
Art. 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.
Art. 1702. In case of doubt, all labor legislations and all labor contracts shall be construed in favor of the safety and decent living for the laborer.
Art. 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.
What is Social Justice
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
What isn’t social justice (Tirazona case)
“The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged.”
“Social justice cannot be permitted to be a refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty.”
How is Social Justice properly used? (Agabon vs NLRC)
Social justice should be used only to correct an injustice.
It must be founded on the recognition of the necessity of interdependence among diverse units of a society, and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life.
As partners in nation-building, labor and management need each other to foster productivity and economic growth; hence, the need to weigh and balance the rights and welfare of both the employee and employer
Cardinal Rights of Workers
Under Labor Standards
- Security of Tenure;
- Living wage;
- Share in the fruits of production; and
- Humane conditions of work.
Under Labor Relations
* Self-Organization
* Collective bargaining and negotiations
* Peaceful concerted activities, including strike;
* Participation in policy and decision-making processes.
Recruitment and placement
- Canvassing
- Enlisting
- Transporting
- Contracting
- Hiring
- Utilizing
- Procuring workers or
AND INCLUDES
8. Contract of services
9. Referrals
10. Advertisement For employment
11. Promising for employment LOCALLY OR NOT WHETHER FOR PROFIT OR NOT
Name hires
Individuals who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency
Who had power to suspend or cancel license or authority
Concurrently vested with DMW and Secretary of labor
Simple illegal recruitment for local workers (labor code)
- The person charged with the crime must have undertaken recruitment activities:
a. Defined under Art. 13 (b) or
b. Prohibited activities under Art. 34 - The said person does not have a license or authority to do so
Illegal recruitment
Cetchup Crap when undertaken by non-licensee or non-holder of authority
Provided that such person offers or promises for a fee, employment abroad to two or more persons
Illegal recruitment by syndicate
- The offender undertakes either activity of cetchup crap
- Has no valid license to do so
- The illegal recruitment is committed by a group of three or more persons
Illegal recruitment in large scale
- The offender undertakes either activity of cetchup crap
- Has no valid license to do so
- The accused commits the unlawful acts against three or more persons individually or as a group
Illegal recruitment vs. Estafa
- As to Nature
IL is Malum Prohibitum
E is malum in se - As to source
IL is penalized under the labor code
E is penalized under the RPC - As to Scope
IL is limited in scope
E is wider in scope and covers deceits whether related or not to recruitment activities
Does prohibition against DJ apply for Illegal recruitment and estafa?
No. Conviction under the labor code does not preclude punishment under the RPC for estafa
Prescriptive Periods for Simple Illegal Recruitment vs. economic sabotage
Simple: Within 5 years from the time the illegal recruitment occurred
ES: Within 20 years from the time the illegal recruitment occurred
Four fold test
- The selection and engagement of the employee;
- The payment of wages;
- The power of dismissal; and
- The employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished
Parties to an apprenticeship agreement
A contact between a training establishment and an apprentice.
TE binds himself to train and pay the apprentice;
provide facilities that allows OJ and TI;
Execute the apprenticeship as fully required by TESDA
Obligations of the apprentice
- Follow the rules of the apprenticeship program
- Follow rules on discipline/ Human resource and care and maintenance of facilities and equipment
Wage of employment and XP for APPRENTICES
Not less than 75%
XP: requirements for school, licensure exam, graduation
Vocational aptitude
Potential to perform the work required
Hazardous occupation
Nature of work exposes worker to dangerous work conditions
Employees excluded under Conditions of Employment (Ga-Ma-Off-FiFa-DoPe)
- Governmental employees
- Managerial Employeed
- Officers or members of a managerial staff
- Non Agricultural Field Personnel
- Members of the Family of the employer
- Domestic Helpers
- Persons in the personal service of another
- Workers who are paid by results
Managerial Employees
- Primary duties consists of the management of the establishment in which they are employed
- Customarily and regularly direct the work of two or more employees therein
- They have the authority to fire or hire employees of a lower rank, or their suggestions and recommendations as to hiring and firing and promotion are given particular weight
Non agricultural fields personnel
Employees who regularly perform their duties away from the principal place of business of the employer
Whose actual hours of work in the field cannot be determined with certainty
Domestic Helpers
- Performs such services in the Er’s home which are usually necessary or desirable for maintenance and enjoyment thereof
- Minister to the personal comfort, convenience, and safety of the ER and as well as the members of his family
If the domestic helper is working within the premises of the business of the employer in connection with its business, warrants the conclusion that such helper is a regular worker
Principles in determining hours worked
- All hours are hours worked which the employee is required to give his employer, REGARDLESS of whether or not such hours are spent in productive labor or involve mental or physical exertion
- An employee need not leave the premises of the workplace in order that his rest period shall not be counted. It is enough that he stops working
- If the work performed was necessary or it benefited the employer, or the employee could not abandon his work at the end of the shift because he had no replacement, all hours worked shall be considered as hours worked IF it was with the knowledge of the employer or immediate supervisor
- The time during which an employee is inactive by reasons of interruptions beyond his control
Considered as compensable hours worked
- All time during which an employee is required to be on duty or be at the employers’ premises
- All time during which the empire is suffered or permitted to work
- Rest period of short durations during work hours
Normal Hours of Work
GR: the normal hours of work of any employee shall not exceed 8 hours a day
Why? To protect the health of workers
XP: To Health Personnel in
A. Cities and municipalities with a population of at least 1M
B. Hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours, 5 days days a week and exclusive of time for meals
Work day vs Calendar day
Work day: 24 hour period commencing from the time an employee regularly starts to work regardless of whether or not the work is broken or continuous
Calendar day: 24 hour period commencing at 12 midnight and ending at 11:59 PM
Compressed work week
The number of work days is reduced but the number of hours of work is increased to more than 8 hours a day BUT NO OVERTIME PAY MAY BE CLAIMED
Conditions for implementation of a CWW
- The scheme is expressly and voluntarily supported by majority of the employees affected
- In firms using substances or operating in conditions that ate hazardous to health , a certification is needed from an accredited safety organization that work beyond 8 hours is within the limits or levels of exposure set by DOLE’s OSH standards
Are drivers/bus conductors field personnel?
No, because
I. Inspectors are assigned in different strategic places who board and inspect passengers
2. Mandatory once a week shop day to check the busI’ electrical, mechanical and hydraulic aspects
3. Must be at specific places at specific times
Regular Employment
It is an arrangement where the employee :
1. Has been engaged to perform tasks usually necessary or desirable to the usual trade or businesses of the employer
May only be terminated for an “authorized” or “just” cause
2. For casual employees - has rendered at least 1 year of service whether such service is continuous or broken with respect to the activity in which he is employed
3. When an employee is allowed to work after a probationary period
Casual Employment
- Activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not incidental
- Performs activities incidental to the business of the employer
XP: Rendered 1 year of service either continuous or broken, he is a REGULAR employee
Probationary Employee
One who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment
Employee on the other hand seeks to prove that he had the qualifications to meet the reasonable standards due permanent employment
Duration of probationary employment and exceptions
GR: shall not exceed 6 months from date c the employee stated working
XP: 1. Covered by apprenticeship agreement stipulating a longer period
2. Voluntary agreement by the parties
3. Employer gives second chance to pass the test
4. When a longer period is required and established by company policy
Project Employment
One whose employment has been fixed for a specific project or undertaking , the completion of which has been determined at the time of engagement of the employee
- The employment was assigned to carry out a specific project or undertaking
- The duration or scope of which were specified v at the time they were engaged for such project
Are project employees regular employees?
GR: No, because their services are needed only when there are projects to be undertaken
XP: 1. There is a continuous re-hiring of project employees even after cessation of a project for the same tasks or nature of tasks
- The tasks performed by the alleged project employee are directly vital, necessary and indispensable to the usual business is trade of the employer
Office or members of managerial staff
- Their primary duty consists of the performance of work directly related to management policies of their Er;
- They customarily and regularly exercise discretion and independent judgment;
- They 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 execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or execute, under general supervision, special assignments and tasks; and
- They do not devote more than 20% of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described above. (Sec. 2 (c), Rule I, Book III, IRR)
What determines a worker’s pay?
Time, work result, work volume, work hazard, commission, or other quantifying considerations
Wages
- It is the remuneration or earnings, however designated,
- capable of being expressed in terms of money,
- whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same,
- payable by an Er to an Ee under a written or unwritten contract of employment:
- For work done or to be done, or for services rendered or to be rendered; and
- Includes fair and reasonable value of board, lodging, or other facilities customarily furnished by the Er to the Ee as determined by SOLE.
Salary
“salary” denotes a higher degree of employment, or a superior grade of services, and implies a position of office
a recompense or consideration made to a person for his pains or industry in another man’s business
Facilities
articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the Er or necessary to the conduct of the Er’s business.
Supplements
are extra remunerations or benefits given to or received by laborers over and above their ordinary earnings or wages.
Since they are not considered as part of wages, their value cannot be deducted from the cash wage of an Ee
Regional minimum wage
refers to the lowest basic wage rates than an employer can pay his works, as fixed by the Regional Tripartite Wages and Productivity Boards (RTWBPs), and which shall not be lower than the applicable statutory minimum wage rates.
Statutory Minimum Wage
the lowest wage rate fixed by law that an Er can pay his workers. (IRR, R. A. No. 6727) Compensation which is less than such minimum rate is considered an underpayment that violates the law.
PROHIBITIONS REGARDING WAGES
- Non-Interference in Disposal of Wages
- Wage Deduction
- Prohibition against Deposit Requirement
- Prohibition on withholding of wages
Non-Interference in Disposal of Wages
Er shall not limit or interfere with the freedom of any employee to dispose of his wages. He shall not force, compel or oblige his Ees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store services of such Er or any other person.
Wage Deduction
GR: No Er, in his own behalf or on behalf of any person, shall make any deduction from the wages of his employees. (Art. 113, LC)
XPNs:
a. Where the worker is insured with his consent by the Er; and,
b. For union dues, in cases where the right of the worker or his union to check off has been recognized by the Er or authorized in writing by the individual worker concerned. (Art. 113, LC)
Prohibition against Deposit Requirement
GR: While deductions from the employees’ wages may be made for cash bonds or deposits, the Er, however, is not allowed to unilaterally impose upon its employees the giving of cash bonds or deposits.
XPN: If the Er proved and established that it falls under any of the following:
a. That it is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one; or
b. That the cash bond or deposit is necessary or desirable as determined by the DOLE Secretary in appropriate rules and regulations.
Prohibition on withholding of wages
It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker. (Art. 116, LC)
Although management prerogative refers to the right to regulate all aspects of employment, it cannot be understood to include the right to temporarily withhold salary/wages without the consent of the Er. To sanction such an interpretation would be contrary to Art. 166 of the Labor Code. (SHS Perforated Materials, Inc. v. Diaz, G.R. No. 185814, 13 Oct. 2010)
When may the value of a facility be deducted from wages?
- Proof must be shown that such facilities are customarily furnished by the trade
- The provision of deductible facilities must be voluntarily accepted by the employee
- Facilities must be charged at fair and reasonable value
Retail enterprise
Engaged in the sale of goods that ate commonly bought by private individuals
Service enterprise
Engaged predominantly in providing personal services to individuals for personal or household use
Benefits payable to piece rate workers
- Applicable statutory minimum daily rate
- Yearly service incentive leave of five days with pay
- Night shift differential
- Holiday pay
- Meal and rest period
- Overtime pay
- Premium pay
- 13th month pay
- Other benefits granted by law or individual or collective agreements or company policies and practice
Labor or service contractor
- Carries on an independent business
- Undertakes the contract work on his own account, under his own responsibility according to his own manner and method
- Free from control and direction of his employer or principal in all matters connected to the work except the result thereof
- Service agreement ensures compliance with all rights and benefits under labor laws
Labor only contracting
An arrangement to supply workers to a job owner who, without acknowledging himself as the employer, supervises or controls the performance of these workers.
It is prohibited by law.
When is there labor only contracting?
Where the person supplying the workers to an employer DOES NOT HAVE substantial capital or investment in the form of tools, equipment, machineries, work premises etc.
Workers recruited or placed by such persons are performing such activities which are directly related to the principal business of the employer
The contractor does not exercise control over the performance of the work of the contractual employee
LOC FORMULA
LOC = EE (supplying workers to another) + CE1 or + CE2
Substantial Capital in Contracting
Corp, Partnerships or Coops = paid up capital stock of at least 3M
Sole Proprietorship = net worth of at least 3M
When is the deduction on a laborers’ wage due to damage proper?
- The employee is clearly shown to be responsible for the loss or damage
- Employee is given ample opportunity to show cause why a deduction should not be made
- The amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage
- The deduction from the employee’s wage does not exceed 20% of his weekly wages
Is dismissal as retaliation strikeable?
Yes. This constitutes a violation under Art. 258 which is an ULP. Whenever there is an ULP, there is a reason for strike
Why do we need minimum wage?
- Promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families
- Guarantee the rights of laborers to their just share in the fruits of production
- Enhance employment generation in the countryside through industry dispersal
- Allow business to have reasonable returns on investment, expansion and growth
Wage distortion
The effect of increasing the pay of an employee to such an amount that equals, almost equals, or overtakes another employees pay which had not been similarly increased
Salary distortion
Disappearance or virtual disappearance of pay differentials because of compliance with a wage order
Money claims under Art. 129 reqs.
- The claim is presented by an employee, or a person employed in a household service or household helper
- The claim arises from ER-EE relation
- Claimant does not seem reinstatement
- Aggregate money claim of each claimant does not exceed P5,000
Bona fide occupational qualification
(1) that the employment qualification is reasonably related to the essential operation of the job involved; and
(2) that there is a factual basis for believing that all or substantially all persons meeting
the qualification would be unable to properly perform the duties of the job
Just causes for dismissal requires
An underlying act, deed or conduct from which a reasonable belief may be inferred. Without it, dismissals undertaken on mere belief are arbitrary and will be outlawed
Diminution of benefits
- The grant of benefit is founded on a policy or has ripened into a practice over a long period of time
- The practice is consistent and deliberate.
- The practice is not due to error or construction or application of a doubtful or difficult question of law
- The diminution or discontinuance is done unilaterally by the employer
128 vs 129
As to nature
8 - inspection is for compliance with labor standards
9 - proceedings are limited to money claims
As to workers involved
8 - employees in the service
9 - present or past employees(no demands for reinstatement)
As to jurisdiction
8 - no monetary limit
9 - amount per claimant does not exceed 5000
Persons who may be liable for sexual harassment
Any person who having authority, influence or moral ascendancy over another in a work, training or education environment
who demands, requests or requires any sexual favor from another
Whether or not such demand is accepted or rejected
Minimum Wage of household workers
NCR - 6000
CAR - 4500
Other municipalities - 1500
Benefits of home workers
Registration of labor organizations
SSS, Medicare and ECC premiums
Define night worker
Any employed person whose work covers the period from 10PM to 6AM the following morning, provided that the worker performs no less than 7 consecutive hours of work
Valid quitclaim
- There was no fraud or coercion on any of the parties
- The consideration of the quitclaim is sufficient and reasonable
- The contract is not contrary to LAMOGOP or prejudicial to a third party
When May occupational disease be compensable?
- Seafarer’s work must involve the risks described herein
- The disease was contracted as a result of the seafarer’s exposure to such risks
- The disease was contracted within a period of exposure and other such factors necessary to contacts it
- There was no notorious negligence on part of the seafarer
Grounds for a private school teacher to reach permanent status
- The teacher serves full time
- Teacher must have rendered 3 consecutive years of service
- Such service must have been satisfactory
Just causes for termination
- Serious misconduct or willful disobedience by the employee
- Gross and habitual neglect of duties
- Fraud or willful breach of the trust reposed in him by his employer
- Commission of a crime by the employee against the employer or immediate member of his family
- Other analogous causes
To whom is loss of trust and confidence applicable ?
Managerial employees and rank and fiduciary file employees
Totality of infractions rule
The number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee
When is a transfer NOT a constructive dismissal?
The employer must show:
1. The transfer is not unreasonable, inconvenient or prejudicial to the employee
2. It does not involve a demotion of rack or diminution of salaries, privileges or other benefits
Compliance for redundancy
- Written notice served on both employees and DOLE 1 month prior to date of termination of service
- Separation pay - 1 month for every year of service
- Good faith in abolishing the position
- Fair and reasonable criteria in determining what positions are redundant
Procedural due process requirement - dismissal
- Initial notice must be given to the employee, stating cause for dismissal and giving the employee an opportunity to be heard
- Employer must give notice providing findings and reason for termination
Art. 4 Labor Code (ambiguity)
All doubts in the implementation and interpretation of this code, including its IRR, shall be resolved in favor of labor
Service Charges
85% equally distributed to employees every 2 weeks
15% retained by management for:
A. Losses and breakages
B. distribution to managerial employees
