MT Deck Flashcards
basic policy of labor
[apera]
- afford protection to labor
- promote full employment
- ensure equal work opportunities
- regulate relations bet. Ee & Er
- Assure rights of workers to s.o., cba, SoT & just & humane working conditions
distinctions between Labor Code Art. 4 & CC 1702
[Art. 4]
- pertains to implementation and interpretation of provision of Labor Code which is in case of doubt, in favor of labor
[art. 1702]
- pertains to labor legislation which includes the labor code [and] labor contracts. which in case of doubt, shall be resolved in favor of labor.
rights of companies or ers
- right to capital
- right to reasonable ROI
- right to exercise MP
rule on non impairment clause
gen: laws will not affect contracts
exc: if it is through police power
what is social justice?
Calalang v. William it is neither communism, despotism, atomism, nor anarchy but the humanization of laws [and] equalization of social & economic forces so that justice may be approximated.
A is Er and B is Ee. A has a favorable judgment and plans to attach B’s working tools to satisfy the judgment. Is the attachment valid?
No, 1709. Er shall neither cease or retain any tool belonging to laborer.
article 6 coverage clause & exlcusionary clause
all rights & benefits apply to all workers whether agri or non agri except otherwise provided
[cvrg cls] - referring to private ees
gen rule - labor code does not apply to public ees w/ excs
[exclsnry cls] - some R&B cannot be enjoyed by private ees
what is recruitment & placement?
- any act of hiring (use all synonyms)
- includes referrals, contract services, advertising for employment w/ for profit or not
if not having a license or authority and one recruits for overseas or local is considered illegal recruitment,
is there illegal recruitment even with license or authority?
Yes, local recruit when doing prohibited acts
- charge amount to worker to pay agency greater than actually loaned
- publish false notice/information related to recruitment
- recruitment in jobs harmful to public health or morality
types of illegal recruitment
- simple I.R
- I.R. involving economic sabotage
- I.R. committed by syndicate
- I.R. committed in large scale
in simple IR & IR involving economic sabotage, 2 elements that is;
- he has no license/authority
- recruitment as defined in the code or permitted practices
difference bet. syndicated & large-scale?
[S I R]
- committed by 3> people conspiring
- essential element: conspiracy
[I R L S]
- victims are 3>
remedy & reliefs for illegal dismissal of OFW
- full reimbursement of placement fee w/ 12% interest p.a.
- salaries of unexpired portion of employment contract
- damages, exemplary, moral, & atty’s fees.
I.R. v. estafa
[IR]
- malum prohibitum
- does not require damage
actions to take if victim of I.R.
- illegal recruitment case
- estafa case
- administrative case for revocation
gen rule: direct hiring of migrant workers is banned
what are exc to direct hiring
- international orgs
- diplomatic corps
- specific Ers allowed by the Secretary of Labor
who are disqualified to recruit for overseas employment?
- travel agencies & sales agencies of airline companies
- Sh, Ofcrs, BoD, Prtnrs in the business of travel agency
- insurance company
- Sole Proprietors Ofcrs, BoD, Prtnrs with derogatory records
- individual with derogatory records violating recruitment laws
- official [or] Ee of the DMW, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNNP, CAAP,
requirements so non resident aliens can have gainful employment
- Alien Employment Permit(AEP) from DOLE’s Regional Director
- Special Temporary Permit (STP) from the PRC (if involves his profession)
- Authority to Employ Aliens (AEA) from the DOJ (if involves national industry work)
- AEA from DENR (mining)
exception to the requirement of alien employment permit (aep)
where do these people groups get a cert ?
certificate of exemption obtained in DOLE REgional Office
- dependent spouse of officer of int. org
- foreigners in int. orgs.
- dependent spouse of diplomatic corp
- permanent / temporary resident visa holder
- foreigners teaching in university
- foreigners working in embassy by reason of extraterritoriality principle
- refugees & stateless persons
- foreigners granted exemption by law
certificate of exclusion who may avail
- members of the governing board w/ voting rights
- foreignationals who are president & treasurer who are part owner of a company
- contractual service supplied who is a specialist
- Ee of foreign service supplier
aep valid for 1-3 years and renewable.
groudns for denial of AEP application or renewal
- misrepresentation by him
- falsified documents
- national is a convicted criminal
- he committed grave misconduct
- available filipinos to do the job
grounds for revocation/cancellation of AEP
- non-compliance of permit
- objections such as available filipnios
- phil company terminates employment thereby cancelling/revoking AEP
- grave misconduct
- national transfer to another job/employer
effect of denial, revocation, or cancellation
he cannot apply for a period of ten (10) years if denial/cancellation is due to
- conviction of criminal offnse
- fugitive of his coutry
- grave misconduct w/ workers
a period of (5) years when he fraudulently applied for the AEP
remedy insofar as fraudulent application of aep
appeal the decision of the DOLE regional office to DOLE secretary
what consists of management prerogative
- bona fide **occupational qualifications*
- imposition of productivity standards
3.change of working hours - giving of bonuses
- discipline
- transfer
- imposition of post employment restrictions
MP > discipline
ddiic p
right to dismiss
right to determine who to punish
impose penalty
impose heavier penalty than what company prescribes
right to choose penalty to impose
right to promoulgate rules & regulations
MP > right to transfer > 3 conditions to transfer ees validly
no demotion
salary not lowered
not prejudicial
no diminution of benefits
not unreasonable
demotion was due to disciplinary action, what can ee do if he doesn’t want ot be demoted?
even w/ due process (NTE) file a case for illegal demotion before the Labor Tribunal for violation of security of tenure.
demotion was due to constructive dismissal what can ee do?
file case against Er
MP > Giving Bonus > When Demandable?
GEN: act of gratuity so not a right to demand
EXC:
- if stipulated in contract or CBA
- if grant has become company policy/practice
- given as additional compensation w/o any condition
MP > what are the Post-Employment Restrictions
sir cc
- non-compete clause
- confidentialtiy & NDA
- non-soliciation
- non-recruitment or anti-piracy
- inventions assignment
test determing Er-Ee re’t
[Four Fold Test]
{Economic Reality Test]
[Independent Contractor Test]
- no Er-Ee rel’t ICT
four fold teset
- selection & engagement of Ee
- payment of wages
- power to dismiss
- power to control conduct
what is a regular ee
perform activities necessary or deisrable to the trade of Er
contract says w/in period of probation, there is no Er-Ee relationship.
is this valid?
No, Art. 295 is governing and not the written contract because labor contracts are special contracts imbued with public interest.
what is a casual Ee
how can casual be reg
perform activities NOT necessary or desirable in the business
after one year, whether continuous or broken, shall become regular
how to validly engage a probationary ee
simon v. the results companies the Er must comply with the basic requirements of;
- probatinoary contract
- Ee informed of standard he should meet to qualify as reg ee from the start
what are valid grounds for terminations of an employee
- just causes
- based on labor code
- authorized causes
- initiated by Er
- failure of Ee to qualify as Regualr
exc to 6 month period
- apprenticeship agreement wtih
- apprenticeship program approved by TESDA
- apprenticeship agreement bet. parties
- parties agreed to a longer term
- teachers
- 3 yrs - elementary & secondary level
- 6 consecutive regular semesters - tertiary
- 9 cons. trimester - tertiary offering trimester
what is project ee
specific undertaking. termination is determined
activity either w/in or not within regular business of employer
principles laid down in the Carpio v. Modair Manila Co. Ltd
- Ee is presumed regular
- if considered reg, security of tenure already attached [and] subsequent execution of project employment cannot undermine security of tenure
- but if started as project ee, status may ripen into regular status due to repeated [and] successive hiring of project employees
- regularized construction workers in a work pool are subject to “no work no pay” principle
- submission of termination reports to DOLE may be considered as an indicator of project employment, but non submission does not automatically grant regular status
what is seasonal ee
ee engaged in a particular time
no work no pay during off-seasons but employment not severed
what must a seasonal ee do to attain regualr
- seasonal ee work in seasonal in nature
- employed for more than one season
what are requisites of fixed-term ee
- consent is not vitiated when agreeing on the fixed-term
- more or less ee-er dealt in equal terms w/o moral dominance
TN: if contract fails to stipulate term, then ee becomes regular
TN: successive renewal will regularize
what are floating status ee
suspension of employment due to temporary suspension [or] cessation of business which shall not exceed 6 months [unless] otherwise stipulated it can be for more than 6 months
what is contracting/subcontracting?
company (principal) hires another company/person (contractor) to complete specific job w/in a period of time. done w/in or outside principal’s premises .
principal (needs work done)
contractor (hired to do the job)
Ee of contractor (workers)
requisites for valid contracting/sub-contracting agreement
the contractor/sub-contractor must posses the ff;
- it must have a distinct and independent business
- substantial capital investment to carry out the contracted service (at least 5 mil)
- free from control & direct supervision of the principle in ALL maters except as to results
if valid contracting arrangment, then there is no Ee-Er rel’t bet. principal and contractor [and] Ee’ of contractor will not be Ee’ of the principal
principal hired contractor to biuld a bldg. contractor does not have money to pay at the 3rd year. the Ees of contractor sues the principal demanding wages.
will it prosper?
would your answer be the same if there was
- illegal dismissal
- separation pay
Ees demand backwages?
Yes, while no Ee-Er rel’t, there is solidary liability only insofar as unpaid wages are concerned
No, principal is NOT liable for backwages solidary liability only insofar as unpaid wages are concerned. the contractors are liable for those
remedy of the pricipal after giving unpaid wages
go after contractor for reimbursement by filing it in regular courts as there is no Ee-Er relationship between principal and contractor
absolute prohibition against labor-only contracing
- subcontractor do not have the required substantial capital investment
- SbCntrctr do not have the investment in form of tools, equipment, etc
- SbCntrctr’s Ees are doing work that are directly related to main business of principal
- SbCntrctr’s do NOT have control over Ees performance
Illicit Forms of Employment Arrangaments
Prohibited for being contrary to public policy
- Principal farms out (turns to) Cabo
- contract out of job thru in-house agency
- contracting out of job thru in-house coopeartive merely supllying workers to principal
- contracint out of job performed by union members interfering their right to self-organization
- requiring contractor’s/sbcntrctr’s Ees to perform functions currently performed by reg ees of principal
- requireing cntrctr/sbcntrctr’s ees to sign antedated resignation letter waiver of minimum standards, or quitclaim, etc*
- repeated hiring by cntrctr/sb_contrctr’s ees in a short duration .
- practices that circumvent right of security of tenure
effect if only labor-only contracting?
since it is illegal. the contractor/sb_cntrctr’s Ees shall be considered Ees of the principal and the cntrctr being the mere agent. thus the real Er is the principal in a case of labor-only arrangment.
what contract must be present in a legitimate contracting arrangement
bet. Principal & Cntrctr;
- service agreement
- spcfc description of work with term
- place of work & T&C, administrative fee of not <10% of total contract cost
- provision on issuance of bonds
bet. cntrctr & Ees
- Employment Contract
- spcfc description or work
- place of work, T&C, wage rate
TN: any violation renders Principal as employer
is trilateral relationships include tecnology-enabled services ?
no
Conditions of Employment > enumerate the general labor standards
n. morphhss
- night shift differential
- meal pay period
- over time pay
- rest day
- premium pay
- hours of work
- holiday pay
- service incentive leave
- service charges
covverage of L.S. GEN & EXC
GEN: all establishments, private for profit or not
EXC:
[use illustratoin]
- Gov’t Ees
- GOCC under Corp Code is entitled to L.S.
- Managerial Ees & Ofcrs or members of Managerial Staff
- Field personnel - duties away from principal office
- members of family of Er who are dependent on Er for support
- Domestic helpers
- persons in **personal service of another* *
- workers paid by results
who are managerial ees?
- primarily manage the company
- customarily & regularly direct the work of 2/> Ees
- authority to hire/fire
- other personal movements
TN: includes supervisory Ees
hours worked shall include
- all time Ee is required to be on duty or at a prescribed place
- all time Ee is suffered or permitted to work
rest periods for short duration considered working hours
differentiate waiting to be engaged and engaged to wait
[engaged to wait]
- Er asks Ee to wait in conference room. Even if nothing done, compensable
- on call time
[waiting to be engaged]
- not controlled by Er
when should work interruptinos be compensated?
not exceeding 20 minutes
> 20 in brownout if instructed to leave their workplace
rest period > meal period gen rule & exc
GEN: meal time not less than 60 minutes
EXC: required to work while eating, in the ff. cases, a meal period less than 20 may be given Er and will be credited as compensable hours
- work is non-manual work [or] does not involve strenous physical exertion
- establishment regularly operates NOT LESS THAN 16 hours a day
- cases actual or impending emergencies or when urgent work to be performed
- work necessary to prevent serious loss of perishable goods
can ee be compelled to render overtime?
GEN: no, maximum is 8 hours, or violation of involuntary servitude.
EXC
[camp.ww]
1 complete work started before 8th hour
2. actual or impending disaster
3. urgent work on machines
4. prevent loss of perishable goods
5. war or national/local emergency
6 .favorable weather condition
compute overtime pay
Ordinary Day
regular wage + 25% (at least)
Rest Dday/Holiday
regular wage + 30% (at least)
when can Ee waive overtime pay?
Ee cannot waive overtime pay but can waive claim for past unpaid overtime pay
what is flexi holidays schedule
Ees agree to avail holiday at some other day as long as there is no diminution of existing benefits
what is holiday pay and when does it NOT apply
payment of regular wage for any unworked regular holiday.
holiday pay does NOT apply to Ees;
- Gov’t Ees
- Manager Ees
- Retail & Service w/ less than 10 workers
- officers or members of managerial staff
- field personnel
what are SERVICE incentive leaves?
- paid leaves of 5 days at least one year of service
not applicable to those not part of coverage of L.S.
differene between SIL & sick leave/vacation leave
SIL if not used is convertable to cash,
sick/vacation leave is waiver.
service charge what is it
service charge must be distributed exclusively to the Ees | Pro Rata
