Labor Standards Flashcards
Exceptions to the coverage of holiday pay law
The following are exempted from holiday pay:
- Government employee whether employed by National government offices or any pf its political subdivisions, including those employees in the government owned and controlled corporations with original charters;
- Retail establishments employing less than 10 employees;
- Househelpers and otehr persons in the personal service;
- Managerial employees;
- Officers or member of managerial staff
- Field workers
Facilities and Supplements
Facilities includes articles or services for the benefit of the employee or his family but shall NOT include tools of trade or articles or service primarily for the benefit of the employer or necessary to toe conduct of the Employer’s business
- it is WAGE DEDUCTIBLE
Supplements constitute extra renumeration or special privileges or benefits.
Not wage deductible
– what is essentail here is the PURPOSE
Requisites in making DEDUCTIONS
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When does the RULE AGAINST DIMINUTION OF SUPPLEMENTS/BENEFITS apply?
- Grant of the benefit is founded on a policy or has ripened into a practice over a long period;
- Practice is consistent and deliberate;
- Practice is not due to error in the construction or application of a doubtful or difficult question of law
- Diminution or discontinuance is done unilaterally by the employer
When will it ripen to COMPANY PRACTICE
To ripen into company practice the giving of the increase must not be by reason of strict or contractual obligation. It must be based on liberality on the part of the employer
Contracting or subcontracting
relationship of the PRINCIPAL and the contractor the law applicable are the Civil Code and pertinent commercial laws.
- No substantial capital which relates to the job, work, or service - directly related to the main business of the principal
- Contractor does not exercise the right to control over the performance of work of the contractual employee
Cooperative engaged in Labor Only Contracting
Cooperatives engaged in labor only contracting must register with the Department of Labor and Employment as a LABOR CONTRACTOR
- Failure to register will give rise to the presumtion that it is labor only contracting
Exceptions to the Non-Diminution Rule
- Correction of error
- Negotiated Benefits (CBA)
- Wage order compliance
- Benefits on reimbursement basis
- Reclassification of position
- Contingent benefits or conditional bonus
7 Productivity incentives
Non Diminution of Benefits
Supreme Court did not lay down any rule requiring specific number of years. Voluntary employer practice cannot be unilaterally withdrawn by the Employer without violating the Rule Against Diminution of Benefits
Who are workers paid by results
Workers whose pay is calculated not on the basis of time spent on the job but of the quantity and quality or the kind of work they turn out.
Workers paid by results: Time and Motion Study
- Upon the petition of an interested party or initiative of the DOLE shall conduct a study whether employees are being paid in accordance with minimum wage
- The basis for the establishment of rates per piece, output or contract work shall be the performance of an ordinary worker
- An ordinary worker of minimum skill or ability is the average worker of the lowest producing group representing 50% of the total number of employees engaged in similar enterprise in a particular establishment
Excluding: Learners, apprenticees and handicapped workers
- Employees shall be entitleed to the difference between the amount which they are entitled to receive under such prescribed standards/ rates and that are actually paid
Piece-rate workers: Service Incentive Leave and Overtime pay
a) Unsupervised - no OT/SIL
b) Supervised - entitled to OT/SIL
The yearly Commutation/ cash conversion of the SIL should be based on their AVERAGE DAILY EARNINGS earned during the year by the actual number of working days or the statutory minimum rate, whichever is higher
- excluded in the SIL are the: COLA, OT, premium pay, holiday pay, NSDand company fringe benefits
Not entitled to Holiday Pay, Night Differential, SIL 13th Month
- Field personnel
- Unsupervised employees
- Engaged on tast/ contract basis
- Purely commission basis
- Paid a fixed amount for perfroming work irrespective of the time consumed
Not Entitled to OT
- Paid on piece work
- Paid on takay
- Paid on pakyaw
- Paid on task basis if their output rates are in accordance with the standards under Sec 8 Rule 7 Book 4
Benefits payable to piece-rate workers
- Statutory minimum wage xxxxx
Not entitled to pay 13th month pay
- Distressed Employer
- Government
- employees paid on commission basis
- personal services/ household
> employer must prove that he is exempted apply before the regional office of DOLE for the exemption
Payment through the heirs of the worker
- Claimants shall execute an affidavit attesting their relationship to the deceased and the fact that they are his heirs, to the exclusion of all others (Affidavot of Next of Kin)
- In case of a minor, the affidavit shall be executed on his behalf by a natural guardian or next of kin
- Affidavit shall be presented to the employer who shall make payment through the SECRETARY OF LABOR
- Teh representative shall act as a referrr in dividing the amount among the heirs
- Payment of wages under this Act shall absolve Employer of any further liability with respect to the amount paid
Job Contracting or Subcontracting
an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completing of a specific job, work or service within a definite or predetermined period, regarless of whether such job, work or service is to be performed or completed within or outside the premises of the principal
Relationship in Contracting/subcontracting
Relationship in a contracting or subcontracting arrangement where there is a contract for a specific job, work or service between the principal and the contractor, and a contract of employment between the conractor and workers
Principal - who decides to farm out a job, work or service to a contractor
Contractor - capacity to independently undertake performance of the job, work or service
Contractual workers - engaged by contractors to accomplish the job, work or service
Labor only contracting between the Principal and the Contractor employees
if proven that it is labor only ontracting the contractual employees will be deemed direct employees of the principal.
The principal in this case will no longer be solidarily liable with the contractor.
Elements of Independent COntractor Job Contracting
- Sub/contractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control & direction of the principal in all matters connected with the performance of the work except to the results thereof
- Contractor/ Subcontractor has substantial capital
- The agreement between the principal and sub/contractor assures the contractual employee entitlement to all labor and health standards, free exercise of the Right to self organization, security of tenure and social welfare benefits
- Must be properly registered as such.
The absence of registration only gives rise to the presumption that the contractor is engaged in labor only contracting a presumption that can be refuted
Labor-only contracting
An arrangement where the sub/contractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and ANY of the following elements is present
Confirming element:
a) Lack of substantial capital/ investment and performance of activities diretly related to the principals business
b) Contractor does not exercise right of control over the performance of contractual employees
Essential element:
c) The arrangement is merely to recruit, supply or place workers to perform a job, work or service
Contracting with Cabo
Persons or labor group which in the guise of a labor organization, supplies workers to an employer with or without any monetary or other consideration whether in the capacity of an agent of the employer or as an ostensible independent contractor
Requirements for deducting facilities
- proof must be shown that such facilities are customarily furnished by the trade
- Provision of deductible facility voluntarily accepted in writing by the employee
- must be charged at fair and reasonable value
Deductions authorized by law
- Deduction for value of meals and other facilities
- Cases where the employee is insured with his consent by the employer, deductions for the amount paid by said employer
- Union checkoff
- Employee indebted to the employer where such indebtedness has become due and demandable
- Court awards were wages subject to execution or attachment only fro food, shelter, clothing medical
- Withholding tax
- Salary deductions
- SSS, Philhealth, Pagibig
Requisites for the deduction of the loss or damage
- The employee is clearly shown to be responsible for the loss or damage
- The employee is given ample opportunity to show cause why deduction should not be made
- The amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage
- Deduction from the employees wage should not exceed 20% of the employees wage in a week
What is Labor Standards
The minimum requirements prescribed by existing laws, rules and regulations as to the terms and conditions of employment relating
wages
hours of work
cost of living allowance
other monetary and welfare benefits
including
occupational,
safety, and
health standards
Fundamental management rights (SPIT)
- Right to SELECTION of Employees
- Right to PRESCREIBE Rules
- Right to reasonable RETURN OF INVESTMENT
- RIght to TRANSFER or discharge employees
Labor Code PD 442: When did it took effect?
Signed into law May 1, 1974
Took effect on November 1, 1974
Labor Code PD 442: When did it took effect?
Signed into law May 1, 1974
Took effect on November 1, 1974
What is the applicability of the Labor Code
GR: All rights and benefits granted to workers under the Labor Code shall apply alike to all workers, whether agricultural or non-agricultural.
Except:
- Government employees
- Government owned and controlled corporations created by special or original charter
- Foreign governments
- International agencies
- Corporate officers/intra-corporate disputes
- Local water district excpet where the NLRC’s Jurisdiction is invoked
- As may otherwise be provided by the Labor Code
Recruitment and placement
Article 13 (b). Recruitment and placement refers to the act of (CECTUHP) canvassing, enlisting, contraction, transporting, utilizing, hiring or procuring workers, and includes (RCPA) referrals, contract services, promoting or adertising for emplyment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a feem employment to two or more persons shall be deemed engaged in recruitment and placement.
Note: Regardless of the number of persons dealt with, recruitment and placement are still constituted. Proviso merely lays down a rule of evidence that were a fee is collected in consideration of a promisexxx only creates a presumption.
Name hires
individual workers who are able to secure contracts for overseas employment opportunities with employers without the assistance or participation of any agency.
> Name hires shall pass through the POEA for processing purposes and should be registered under the POEA for protection
License vs Authority
License is a document issued by DOLE authorizing a person or entity to operate a priavte employment agency.
Authority is a document issued by the DOLEauthorizing a person or association to engage in recruitment and placement activities as a private recruitment entity
License - authorize to collect fees
Fees to be paid by workers
Any person applying with a private fee-charging employment agency for employment assistance shall not be charged with a fee.
Exceptions:
- Worker obtained work through recruiters efforts
- Actually commenced employment
Fees chargeable
- placement fee equivalent to one month basic salary
- Documentation costs
- Memership with PhilHealth, Pag-IBIG and SSS
Illegal recruitment committed by a syndicate
carried out by a group of three or more persons conspiring and confederating with one another
Illegal recruitment committed by a large scale
Illegal recruitment by a large scale committed against three or more persons individually or as a group
Types of Illegal Recruitment
- Simple Illegal Recruitment - committed where a licensee or non-licensee or holder or non-holder of authority undertakes either any recruitment activities either any recruitment activities defined in Article 13 (b) or any prohibited practices enumerated in Sec 5 of RA100022
- Illegal Recruitment involving Economic Sabotage - complex illegal recruitment is commtted
a) Syndicated - if illegal recruitment is committed by a group of three or more persons in conspiracy or confederation with one another;
- number of recruiters
b) Large Scale or qualified - committed against three (3) or more persons individually or as a group despite the lack of necessary license from the POEA
- number of victims
Alien Employment Permit
An alien employment permit may be issued to:
- A non-resident alien
- The applicant employer after determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perfrom the services for which the alien is desired
No alien for nationalized industries:
- Educational institutions
- Media
- Public utilities
Employment of alien in etities engaged in nationalized activities
GR: Aliens may not be employed or engaged in nationalized activities
Exceptions:
- Secretary of Justice specifically authorizes the employment of techinical personnel
- Aliens are eleced member of the board of directors or governing body
- Enterprise registered under the Omnibus Investment Code in case of technical, supervisory positions but for a limited period
Who are field personnel
Field personnel refer to non-agricultural employees who:
- Regularly perform their duties away from the principal place of business or branch office of the employer
- Whose actual work in the field cannot be determined with reasonable certainty.
examples: sales personnel agents on commission basis insurance field agents meter readers medical representatives
Conditions of Employment: Coverage of Title 1 Book III
General Rule: Title 1 book III of the labor code dealing with hours of work, weekly rest periods, holiday, service incentive leaves and service charges, covers all employees in all establishments weather fro profit or not
Exceptions: (GF-MOM-PWD)
1. Government employees
2. Field Personnel
3. Managerial employees
4. Officers and members of the managerial staff
5. Members of the family who are dependent on him for support
6. Workers paid by results
7. Persons in the personal services of another
8 Domestic helpers
What is a work day?
Work day is 24 hour period which commences from the time the employee regularly starts to work
What is compressed work week
A compressed work week is a scheme where the normal workweek is reduced to less than 6 days but the total number of work-hours of 48 hours per week shall remain.
The normal workday of 8 hours is increased to more than 8 hours, but not exceed 12 hours, without correspinding overtime premium
When are hours worked compensable?
The following are instances when hours worked are compensable:
- Employee is required to be on duty at a prescribed workplace
- Employee is suffered or permitted to work
- Rest period of short duration during work hours which shall not exceed 20 minutes
- Meal periods of less than 20 minutes
When is waiting time considered as working time?
- Waiting time is integral part of his work
- The employee is required or engaged by the employer to wait
- When the employee is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively or gainfully for his own purpose
–controlling factor is whether waiting time spent in idleness is so spent predominantly for the employer’s benefit or the employee’s
Engaged to wait vs Waiting to be engaged
Engaged to wait, waiting is an integral part of the job; the time spent waiting is compensable, while in waiting to be engaged, idle time is not working time; it is not compensable.
Sleeping time: Compensable or not?
Compensable: if sleeping time is subject to:
- serious interruption or
- takes place under conditions less desirable than would likely to exist at the employer’s home
Not Compensable: If there is an opportunity for comparatively UNINTERRUPTED SLEEP under fairly desirable conditions
> > it is compensable working time if the nature of the employee’s work allows sleeping without interrupting or prejudicing gthe performanc of his work.
Facilities to be deductiiiible, the following must be complied
- Proof that such facilities are customarily furnsihed by the trade
- The provision of deductible facilities is voluntarily accepted by the employee
- Facilities are charged at the fair and reasonable value.
Mere availment is not sufficient to allow deduction from employee’s wage
Service Incentive Leave
It is a 5-day leave with pay for every employee who has rendered at least 1 year of service whether continuous or broken
