Part I

Question 1

Art. II, Sec. 9 of the 1987 Constitution

Answer 1

SECTION 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Question 2

Art. II, Sec. 10 of the 1987 Constitution

Answer 2

SECTION 10. The State shall promote social justice in all phases of national development.

Question 3

Art. II, Sec. 11 of the 1987 Constitution

Answer 3

SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.

Question 4

Art. II, Sec. 13 of the 1987 Constitution

Answer 4

SECTION 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Question 5

Art. II, Sec. 14 of the 1987 Constitution

Answer 5

SECTION 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

Question 6

Art. II, Sec. 18 of the 1987 Constitution

Answer 6

SECTION 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

Question 7

Art. II, Sec. 20 of the 1987 Constitution

Answer 7

SECTION 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

Question 8

Art. III, Sec. 1 of the 1987 Constitution

Answer 8

SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Question 9

Art. III, Sec. 4 of the 1987 Constitution

Answer 9

SECTION 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Question 10

Art. III, Sec. 7 of the 1987 Constitution

Answer 10

SECTION 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Question 11

Art. III, Sec. 8 of the 1987 Constitution

Answer 11

SECTION 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Question 12

Art. III, Sec. 10 of the 1987 Constitution

Answer 12

SECTION 10. No law impairing the obligation of contracts shall be passed.

Question 13

Art. III, Sec. 16 of the 1987 Constitution

Answer 13

SECTION 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Question 14

Art. III, Sec. 18 (2) of the 1987 Constitution

Answer 14

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Question 15

Art. XIII, Sec. 1 of the 1987 Constitution

Answer 15

SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Question 16

Art. XIII, Sec. 2 of the 1987 Constitution

Answer 16

SECTION 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Question 17

Art. XIII, Sec. 3 of the 1987 Constitution. MEMORIZE. Basically, a summary of labor rights

Answer 17

SECTION 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 on investments, and to expansion and growth.

Question 18

Art. XIII, Sec. 13 of the 1987 Constitution

Answer 18

SECTION 13. The State shall establish a special agency for disabled persons for rehabilitation, self-development and self-reliance, and their integration into the mainstream of society.

Question 19

Art. XIII, Sec. 14 of the 1987 Constitution

Answer 19

SECTION 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.

Question 20

Art. IX, B-Sec. 2(1) of the 1987 Constitution

Answer 20

SECTION 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

Question 21

Art. XIX of the Civil Code

Answer 21

Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Question 22

Art. 1700 of the Civil Code

Answer 22

Article 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.

Question 23

Servidad v. NLRC

Answer 23

Doctrines:
a. Commodum ex injuria sua nemo habere debet.No one should obtain an advantage from his own wrong.

b. Schemes which preclude acquisition of tenurial security should be condemned as contrary to public policy
c. No member of the work force of this country should be allowed to be taken advantage of by the employer.
d. Settled is the rule that an employer can terminate the services of an employee only for valid and just causes which must be shown by clear and convincing evidence

• an employee cannot be terminated without valid and just cause
• servidad was employed as data controller for a period of 1 year
• contractual employee daw kasi work for the first 6 months can be dismissed based on employer’s discretion - SC: this is not allowed under the law. The employer shall follow just cause
• after daw ng first 6 months, if allowed sya, probationary employee padin sya sa second half
• SC: THAT IS NOT ALLOWED. probationary employee has requisites
  1) skills that is required of him must be informed to him at the beginning of his employment
  2)
• pag allowed ka pa magwork after 6 months, regular employee ka na
• contract was a scheme to prevent Servidad from acquiring security of tenure - null and void - contrary to public policy

Question 24

Social justice

Answer 24

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.

Question 25

Protection-to-labor clauses

Answer 25

Art. II, Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

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 on investments, and to expansion and growth.

Question 26

Labor as property right

Answer 26

One’s employment is a property right, and the wrongful interference therewith is an actionable wrong. The right is considered to be property within the protection of the constitutional guarantee of due process of law. In relation to labor, this include the right to work and the right to earn a living.

Question 27

Requisites of lawful dismissal

Answer 27

1. substantive
   - intrinsic validity of the laws in interfering with a person’s right to life, liberty, and property
   - causes
2. procedural
   - the right to be heard
   - manner

Question 28

Limitations on the applicability of Art. III, Sec 1 of the 1987 Constitution or the constitutional due process and equal protection provision

Answer 28

It can only be invoked when the party depriving an individual of such rights is the government. If the case involves a private party (employer), the administrative proceeding through statutory process will govern.

Question 29

“Trial-type” hearing

Answer 29

This is an application of constitutional due process. It is applicable when a labor case has already been filed with the labor courts and subsequently, when it reaches CA and/or SC. As distinguished from employer’s administrative (procedural), company-level due process, the government is now involved. Hence, constitutional (Substantive) due process will apply.

Question 30

Lopez Doctrine

Answer 30

The right to counsel and the assistance of one in investigations involving termination cases is neither indispensable nor mandatory.

It is only under these circumstances that a right to counsel is mandatory:
1. When the employee himself requests for counsel; or 2. When he manifests that he wants a formal hearing on the charges against him

Question 31

Right to picket v. Right to strike

Answer 31

Right to picket

• part of the right guaranteed under the law “to engage in concerted activities for purposes of collective bargaining for their mutual benefit and protection” but it is principally guaranteed under the freedom of speech
• focuses on publicizing the labor dispute and its incidents to the public while strike focuses on stoppage of work

Right to strike
- Sec. 3, Art. Xiii

Question 32

Is the right to picket absolute?

Answer 32

No. The picket should be moving, peaceful and was not attended by actual violence.

Question 33

Right to information

Answer 33

Limited to national security

Question 34

Manifestation of Art. III, Sec. 8 of the 1987 Constitution to the Labor Code

Answer 34

(1) protects the right of workers to self-organization and to form, join, or assist labor organizations of their own choosing
(2) declares as a policy of the State the fostering of a free and voluntary organization of a strong and united labor movement
(3) declares that it shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization, which includes the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities

Question 35

Purpose of the non-impairment clause

Answer 35

To safeguard the integrity of contracts against unwarranted interference by the State.

Question 36

Is the prohibition to impairment of contracts absolute?

Answer 36

No. Police power is superior to the non-impairment clause. The constitutional guaranty of non-impairment is limited by the exercise of the police power of the state in the interest of public health, safety, morals, and general welfare.

ex: Labor contracts

Question 37

Factors to consider on one’s right to speedy disposition of cases

Answer 37

1. length of delay
2. reason for the delay
3. assertion of the right or failure to assert it
4. prejudice caused by the delay

Question 38

Involuntary servitude

Answer 38

Every condition of enforced or compulsory service of one to another, no matter under what form such servitude may be disguised.

It is on the basis of this constitutional precept that employees are granted the right to terminate their employment relationship with their employers under Article 300 [285]5 of the Labor Code. This article recognizes the equality of the parties to an employment relationship. Thus, an employee may resign from employment at any time he wishes and with or without just cause, subject only to certain minimum conditions imposed by law.

Question 39

Exception on one’s right against involuntary servitude

Answer 39

Compulsory fulfillment of military or civic duty. This is so because the constitutional prohibition should be subordinated to the right of the government to call upon its citizens to protect their State as provided under Section 4, Article II of the Constitution. The survival of the State is the paramount justification for such involuntary servitude.

Question 40

Basic rights guaranteed to workers

Answer 40

a. right to security of tenure
b. right to humane conditions of work
c. right to a living wage
d. right to self-organization
e. right to conduct collective bargaining or negotiation with management
f. right to conduct concerted activities (right to strike)
g. right to just share in fruits of production
h. right to participate in policy and decision

Question 41

Right to self-organization

Answer 41

Refers to the right of workers and employees to form, join or assist unions, organizations or associations for purposes of collective bargaining and/or for mutual aid and protection, including the right to engage in peaceful concerted activities and participate in policy-decision making processes affecting their rights and benefits.

Question 42

Negotiation with management

Answer 42

Interaction between employer and employees concerning grievances, wages, work hours and other terms and conditions of employment.

Question 43

Collective bargaining

Answer 43

A process where the parties agree to fix and administer terms and conditions of employment which must not be below the minimum standards fixed by law, and set a mechanism for resolving their grievances.

Ex: negotiating minimum wage, basic benefits, or certain working conditions

Question 44

Security of tenure

Answer 44

In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause.

Question 45

Living wage

Answer 45

A wage that is high enough to maintain a normal standard of living.

Question 46

Humane working conditions

Answer 46

These conditions are not restricted to the physical
workplace - the factory, the office or the field - but include as well the manner by which employers treat their employees.

Question 47

Concerted activities

Answer 47

Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected.

Question 48

Share in fruits of production

Answer 48

Art. XIII, Section 3, (last par.) commands the state to regulate the relations between workers and employers in terms of the right of the employer in the fruits of production and the right of the workers to reasonable return of investments, expansion and growth. However it does not mean that there must be a mandatory profit sharing, but only a voluntary sharing that is born on the acceptance of social function of the means of production.

Question 49

Principle of co-determination

Answer 49

Refers to the right of workers to participate in the policy and decision making processes directly affecting their rights and benefits, without intruding
into matters pertaining to management prerogative. (PAL v. NLRC, G.R. No. 85985, 1993)

Question 50

Test to determine whether a GOCC or a government-owned or controlled corporation is subject to Civil Service

Answer 50

It is determined by the manner of their creation. Gov’t corporations that are created by special (original) charter from Congress are subject to Civil Service rules, while those incorporated under the General Corporation Law are covered by the LC.

Question 51

Abuse of right doctrine

Answer 51

Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. (Art. 19)

Question 52

Why are relations between capital and labor not merely contractual?

Answer 52

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. (Art. 1700)

Question 53

Principle of shared responsibility

Answer 53

A principle in which the State relies on the mutual respect of each party to one another, and assumes that the labor and the management will be both responsible for maintaining industrial peace.

It is the hands-off policy of the state relying on the parties’ relationship and ability to resolve or settle disputes through voluntary modes, without needing government intervention.

However, it is still subject to regulation to promote welfare and protect the rights of the laborers.

Question 54

Cielo v. NLRC

Answer 54

Regular employment: an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessarily or
desirable in the usual business or trade of the
employer. Even if ostensibly hired for a fixed period,
the petitioner should be considered a regular
employee of the private respondent

Probationary employment: (Art. 281 of the Labor
Code) shall not exceed six (6) months from the date
the employee started working, unless it is covered
by an apprenticeship agreement stipulating a longer
period. The services of an employee who has been
engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered
a regular employee.

Where from the circumstances it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee, they should be
struck down or disregarded as contrary to public policy, morals, etc.*

• there is no employee-employer relationship in the contract
• contract is null and void

Question 55

Leyte Geothermal Power Progressive Employees Union-ALU-TUCP v. PNOC-EDC

Answer 55

Project Employees vs. Regular Employees
(Art. 280 of LC) The litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking which completion or termination has been determined at the time of the particular employee’s engagement.

(Art. 263 of LC) Requisites for holding a strike:
(c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Department at least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified bargaining agent, the notice of
strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
- The notice must be in accordance with such implementing rules and regulations as the Department of Labor and Employment may promulgate.
- During the cooling-off period, it shall be the duty of the Department to exert all efforts at mediation and conciliation to effect a voluntary settlement.
- Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.
- A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot
in meetings or referenda called for that purpose.

Question 56

Art. 1702 of the Civil Code

Answer 56

Article 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

Question 57

Art. 3 of the Labor Code

Answer 57

The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the
relations between workers and employers. The State shall assure the rights of workers to self-organization,
collective bargaining, security of tenure, and just and humane conditions of work.

Question 58

Art. 4 of the Labor Code

Answer 58

All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

Question 59

Art. 5 of the Labor Code

Answer 59

The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation.

Question 60

Art. 6 of the Labor Code

Answer 60

All rights and benefits granted to workers under this Code shall, except as may otherwise be provided herein, apply alike to all workers, whether agricultural or non-agricultural.

Question 61

WPP Marketing Communications, Inc. et. al. v. Jocelyn M. Galera et al/Jocelyn M. Galera v. WPP. G.R. No. 169207/G.R. No. 169239, March 25, 2010)

Answer 61

Employee vs. Corporate Officer
Corporate officers are given such character either by the Corporation Code or by the corporation’s by-laws.

Section 25 of the Corporation Code: the corporate officers are the president, secretary, treasurer and such other officers as may be provided in the by-laws

The four-fold test in determining the existence of an employer-employee relationship:

(a) the selection and engagement of the employee;
(b) the payment of wages;
(c) the power of dismissal; and
(d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.

Illegal Dismissal
The law requires that the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected:
(1) notice which apprises the employee of the particular acts or omissions for
which his dismissal is sought; and
(2) the subsequent notice which informs the
employee of the employer’s decision to dismiss him.

Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. (Art. 40, Labor Code of the Philippines)

Question 62

PAL v. NLRC and PALEA (GR No. 85985, August 13, 1993)

Answer 62

Indeed, industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights.

A line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions or modes of action.

So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, the Court will uphold them.

• the PAL revised their Code of Discipline. The Code was immediately implemented. Some employees were dismissed, others sanctioned for the infractions they have committed based on the new code of discipline. the employees filed a case against PAL
• disseminate first the new code of discipline
• PAL was declared of unfair labor practices and was ordered to pay damages
• PAL appealed

What’s the decision of the SC in relation to the formulation of code of discipline?

• the act is valid but PAL did not follow the proper procedure
• hindi kasi humingi ng opinion or discussion from employees or the union (PALEA)
• not just right to information or publication but right to participate

Question 63

Social-economic goals

Answer 63

1. more equitable distribution of opportunities, income, and wealth
2. a sustained increase in the amount of goods and services produced by the nation for the people
3. an expanding productivity as the key to raising the quality of life for all, especially the underprivileged

Question 64

Management Rights

Answer 64

Employers have the right:

1. to return of investments and to make profit
2. to make reasonable rules and regulations for the government of their employees, and these rules become part of the employees’ contract of employment
3. to select their employees and to decide when to engage them
4. to employ any person free to accept employment from him except as restricted by valid statute of contract at a wage under conditions agreeable to them
5. to transfer, reduce or lay off personnel in order to minimize expenses and to insure the stability of the business, and even to close the business
   - transfer or dismissal shall not be abused and shall be done in good faith and is due to causes beyond control

Question 65

Restrictions to management rights

Answer 65

Subject to limitations provided by:

a. law
b. contract (individual or collective)
c. general principles of fair play and justice

Question 66

Who is in charge of implementing the Labor Code?

Answer 66

Department of Labor and Employment

Question 67

Does the Labor Code apply even if there is no employer-employee relationship between the parties?

Answer 67

Yes.

Question 68

Is employment a pre-condition to the applicability of the Labor Code?

Answer 68

No.

Question 69

Person under Art. 97 of the Labor Code

Answer 69

An individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons.

Question 70

Employer under Art. 219 of the Labor Code

Answer 70

Any person acting in the interest of an employer, directly or indirectly.

DOES NOT include any labor organization or any of its officers or agents except when acting as employer

Question 71

Employee under Art. 219 of the Labor Code

Answer 71

Any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

Question 72

Types of employees under the Labor Code

Answer 72

a. managerial employee
- one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign, or discipline employees

b. supervisory employee
- those who, in the interest of the employer, effectively recommended such managerial actions if the exercise of such authority is not merely routinely or clerical in nature but requires the use of independent judgment

c. rank and file employee
- all employees not falling within any of the above definitions

Question 73

The relationship of an employer and employee is contractual in nature. T or F.

Answer 73

False

Question 74

A written contract is not necessary for the creation and validity of an employer-employee relationship. T or F.

Answer 74

True.

Question 75

The existence of an employer-employee relationship is determined by contract. T or F.

Answer 75

False. It is determined by law.

Question 76

Evidence of employment

Answer 76

No particular form. Any competent and relevant evidence may be admitted.

Question 77

LVN Pictures Inc. v. Phil. Musicians Guild (110 Phil 725) and DyKehBeng v. International Labor, (90 SCRA 161)

Answer 77

An employer-employee relationship exists between the musicians and the film companies. The relationship exists where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such an end.

What does the Control test refer to in determining Employer-Employee Relationship? While this Court upholds the control test under which an employer-employee relationship exists “where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end.” It finds no merit with petitioner’s arguments as stated above. It should be borne in mind that the control test calls merely for the existence of the right to control the manner of doing the work, not the actual exercise of the right.

Question 78

Corporal v. NLRC (341 SCRA 658, 2000)

Answer 78

Requisites for an employer-employee relationship to exist:

(1) the selection and engagement of the workers
(2) power of dismissal
(3) the payment of wages by whatever means
(4) the power to control the worker’s conduct, with the latter assuming primacy in the overall consideration

What does the Control test refer to in determining Employer-Employee Relationship? The power to control refers to the existence of the power and not necessarily to the actual exercise thereof, nor is it essential for the employer to actually supervise the performance of duties of the employee. It is enough that the employer has the right to wield that power.

Question 79

People’s Broadcasting v Sec of Labor (March 6,2012)

Answer 79

May the DOLE make a determination of whether or not an employer-employee relationship exists? No limitation in the law was placed upon the power of the DOLE to determine the existence of an employer-employee relationship. No procedure was laid down where the DOLE would only make a preliminary finding, that the power was primarily held by the NLRC. The law did not say that the DOLE would first seek the NLRC’s determination of the existence of an employer-employee relationship, or that should the existence of the employer-employee relationship be disputed, the DOLE would refer the matter to the NLRC. The DOLE must have the power to determine whether or not an employer-employee relationship exists, and from there to decide whether or not to issue compliance orders in accordance with Art. 128(b) of the Labor Code, as amended by RA 7730.

Question 80

Francisco v NLRC (GR No. 170087, August 31, 2006)

Answer 80

What is the two-tiered test in determining employer-employee relationship? In certain cases where the control test is not sufficient to give a complete picture of the relationship between the parties, The better approach would therefore be to adopt a two-tiered test involving:
(1) the putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished
(2) the underlying economic realities of the activity or relationship.
This is especially appropriate in this case where there is no written agreement or terms of reference to base the relationship on; and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment.

What does the whole economic activity comprise of in determining employer-employee relationship? The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity, such as:

(1) the extent to which the services performed are an integral part of the employer’s business
(2) the extent of the worker’s investment in equipment and facilities
(3) the nature and degree of control exercised by the employer
(4) the worker’s opportunity for profit and loss
(5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise
(6) the permanency and duration of the relationship between the worker and the employer
(7) the degree of dependency of the worker upon the employer for his continued employment in that line of business

Question 81

Javier v. Flyace Corp (February 15,2012)

Answer 81

Is there any evidence required to prove the existence of employer-employee relationship?

How to determine the existence of the employer-employee relationship?

Question 82

Four-fold test

Answer 82

to ascertain the existence of an EER

1. selection and engagement of the employee
   - who has the power to select the employees?
   - employment relation arises from contract of hire, express or implied
   - selection and engagement of the workers rests with employers
2. payment of wages
   - who pays the employee wages?
   - the mode of paying the salary does not preclude existence of EER
   - not a conclusive test since it can be avoided by the use of subcontracting agreements or other contracts
   - payment of compensation by way of commission does not militate the conclusion that EER exist
3. power of dismissal
   - who has the power to dismiss the employees?
   - disciplinary power exercised by the owner over the worker and the corresponding sanction imposed in case of violation of any of its rules and regulations
4. power to control employees conduct
   - who exercises control over the methods and results by which the work of the employee is accomplished?
   - the most important factor is the control test. This test is premised on whether the person for whom the services are performed reserves the right to control both the end achieved and the manner and means used to achieve it
   - the control test calls for the existence of the right to control the manner of doing the work, not the actual exercise of the right

Question 83

Sonza v ABS-CBN (GR 138051, June 10, 2004)

Answer 83

What is the most important element of an employer-employee relationship? The so-called “control test” is the most important element.

Is an independent contractor deemed an employee?
Applying the control test to the present case, we find that SONZA is not an employee but an independent contractor. The control test is the most important test our courts apply in distinguishing an employee from an independent contractor. This test is based on the extent of control the hirer exercises over a worker. The greater the supervision and control the hirer exercises, the more likely the worker is deemed an employee. The converse holds true as well—the less control the hirer exercises, the more likely the worker is considered an independent contractor.

Question 84

Orozco v The Fifth Division (August 13, 2008)

Answer 84

What is the most important element of an employer-employee relationship?

Does a newspaper’s power to approve or reject publication indicate control in control test? Power to approve or reject publication of any specific article she wrote for her column cannot be the control contemplated in the “control test,” as it is but logical that one who commissions another to do a piece of work should have the right to accept or reject the product. The important factor to consider in the “control test” is still the element of control over how the work itself is done, not just the end result thereof. In contrast, a regular reporter is not as independent in doing his or her work for the newspaper.

Question 85

The four-fold test is the only test to determine the existence of EER. T or F.

Answer 85

False. There has been no uniform test to determine the existence of an EER.

The “four-fold” test may be regarded as the traditional or conventional test of the employment in question. But it is not the sole test. There is the need to consider the existing conditions between the parties, in addition to the right-of-control element.

Question 86

Economic Dependence Test or the two-tier approach

Answer 86

1. Control 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
2. Economic Reality Test
   - The economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between parties.

This is resorted to when there is serious doubt or genuine confusion as to the EER.

Question 87

When is the two-tiered test appropriate?

Answer 87

The two-tiered test provides a framework of analysis which would take into consideration the totality of circumstances surrounding the true nature of relationship between parties. It is appropriate in cases where there is:

1) No written agreement or terms of reference to base the relationship
2) There exists a complexity in the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment

Question 88

Other factors to consider in the existence of EER

Answer 88

a. the extent of which the services performed are an integral part of the employer’s business
b. the extent of the worker’s investment in the equipment and facilities
c. the nature and degree of control exercised by the employer
d. the worker’s opportunity for profit and loss
e. the amount of initiative, skill, judgement or foresight required for the success of the claimed independent enterprise
f. the permanency and duration of the relationship between the worker and the employer
g. the degree of dependency of the worker upon the employer for his continued employment in the line of business

Question 89

onus probandi

Answer 89

burden of proof

Question 90

Burden of proving EER

Answer 90

Burden rests on the employee - substantial evidence

Question 91

Burden of proving illegal dismissal

Answer 91

Burden rests on the employer

Question 92

Examples of Cases where EER Exists

Answer 92

1. Jeepney drivers in boundary basis
2. Drivers or helpers of salesmen are employees of the company
3. Employees of an unregistered association
4. Street-hired kargador
5. Workers in movie projects
6. Talents
7. Salaried insurance agent, as distinguished from registered agents on commission basis
8. Tailors, seamstresses, servers, basters, plansadora paid on piece-rate basis
9. In-house counsel
10. Security guards, with respect to the security agency

Question 93

Examples of Cases where no EER Exists

Answer 93

1. Farm workers are not employees of the sugar central
2. Caddies are not employees of the golf club
3. Collecting agents on commission basis
4. Shoeshine boys
5. Independent contractors selling soft-drinks
6. Commission salesman
7. Referees are independent contractors
8. A residency or resident physician position in a medical specialty is never a permanent one

Question 94

Kinds of employment

Answer 94

1. Probationary
2. Regular
3. Project Employment
4. Seasonal
5. Casual
6. Fixed-term

Question 95

The employee must be informed of the reasonable standards to qualify for regular employment. T or F.

Answer 95

True.

Exception: when the job is self-descriptive (maids, cooks, drivers, or messengers)

Question 96

If the termination is brought by the failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served to the employee within a reasonable time from the effective date of termination. T or F.

Answer 96

True.

Question 97

Exceptions to the general rule that probationary employment shall not exceed six (6) months from the date the employee started working

Answer 97

1. When it is covered by an apprenticeship agreement stipulating a longer period (Art. 296)
2. When the parties to the employment contract agree otherwise, such as when established by company policy or required by the nature of the work performed by the employee
3. When it involves the 3 year probationary period of teachers
4. When it involves an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee

Question 98

A probationary employee enjoys security of tenure. T or F.

Answer 98

True.

Question 99

Termination of a probationary employee

Answer 99

The services of an employee who has been engaged on probationary basis may be terminated for any of the following:

(a) a just or (b) an authorized cause
(c) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer

Question 100

Mariwasa Manufacturing Incorporated v. Leogardo

Answer 100

Length of probationary period may be shortened or extended. An act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer’s account to compel it to keep on its payroll one who could not perform according to its work standards.

Question 101

Abbott Laboratories v. Alcaraz

Answer 101

Employer shall make known to the employee the standards under which he will qualify as a regular employee.

The employer is made to comply with two (2) requirements when dealing with a probationary employee:

(1) the employer must communicate the regularization standards to the probationary employee
(2) second, the employer must make such communication at the time of the probationary employee’s engagement.

If the employer fails to comply with either, the employee is deemed as a regular and not a probationary employee.

Question 102

Regular and casual employment

Answer 102

Regular
- where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

Casual

• if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
• Casual employees are those who perform work that is incidental to the business of the employer

Question 103

Regular/permanent employment

Answer 103

When an employee performs activities that are usually necessary or desirable in the usual business or trade of the employer

Question 104

Some employers can require their new employees to undergo probationary employment before they can be qualified for regular employment. T or F.

Answer 104

True.

Question 105

2 kinds of regular employees

Answer 105

Art. 295

1. Those engaged to perform activities which are necessary or desirable in the usual business or trade of the employer; and
2. Casual employees who have rendered at least 1 year of service, whether continuous or broken, with respect to the activity in which they are employed. [Romares v. NLRC, G.R. No. 122327 (1998)]

Question 106

Primary standard to determine regular employment

Answer 106

Reasonable connection rule

• the reasonable connection between the particular activity performed by the employee in relation to the business or trade of the employer
• whether the former is usually necessary or desirable in the usual business or trade of the employer. If the employee has been performing the job for at least 1 year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not in dispensability of that activity to the business of the employer. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists.

Question 107

ABS-CBN Broadcasting Corp. v. Marlyn Nazareno et. al.

Answer 107

Test to determine whether an employee is in regular employment.

The primary standard is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer.

Question 108

Project employee

Answer 108

One who is hired for carrying out a separate job, distinct from the other undertakings of the company, the scope and duration of which has been determined and made known to the employees at the time of employment.

Question 109

Rationale for project employment

Answer 109

If a project has already been completed, it would be unjust to require the employer to maintain them in the payroll while they are doing absolutely nothing except waiting until another project is begun, if at all. In effect, these stand-by workers would been joying the status of privileged retainers, collecting payment for work not done, to be disbursed by the employer from profits not earned.

Question 110

2 kinds of project employees

Answer 110

For a particular job or undertaking that is WITHIN the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company (i.e. construction)

For a particular job or undertaking that is NOT within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer [Villa v. NLRC, G.R. No. 117043 (1988)]

Question 111

Indicators of project employment

Answer 111

1. The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable
2. Such duration, as well as the specific work/service to be performed, is defined in an employment
3. Agreement and is made clear to the employee at the time of the hiring
4. The work/service to be performed by the employee is in connection with the particular project/undertaking for which he is engaged
5. The employee, while not employed and a waiting engagement, is free to offer his services to any other employer
6. The termination of his employment in the particular project/undertaking is reported to the DOLE Regional Office having jurisdiction over the work place following the date of his separation from work, using the prescribed form on employees’ terminations/dismissals/suspensions
7. An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies.

Question 112

Test of project employment

Answer 112

whether or not the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee

Question 113

2 requisites of project-based employee

Answer 113

a. the employee was assigned to carry out a specific project or undertaking
b. the duration and scope of which were specified at the time they were engaged for such project

Question 114

Maraguinot v. NLRC

Answer 114

Once a project or work pool employee has been: (1) continuously, as opposed to intermittently, re-hired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a REGULAR employee, pursuant to Article 280 of the Labor Code and jurisprudence.

To rule otherwise would allow circumvention of labor laws in industries not falling within the ambit of Policy Instruction No. 20/Department Order No. 19, hence allowing the prevention of acquisition of tenurial security by project or work pool employees who have already gained the status of regular employees by the employer’s conduct.

Question 115

Leyte Geothermal Power Progressive Employees Union-ALU-TUCP v. PNOC-EDC

Answer 115

Test to determine whether an employee is a project employee
- whether or not the “project employees” were assigned to carry out a “specific project or undertaking,” the duration (and scope) of which were specified at the time the employees were engaged for that project

A project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Secondly, a particular job or undertaking that is not within the regular business of the corporation.

Plainly, the litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking which completion or termination has been determined at the time of the particular employee’s engagement.

• uulit ultin
• union wants to be recognized as the exclusive union of the company
• di pwede kasi di naman sila regular employees
• they are merely project employees
• project employees are valid
  1. at the beginning of employment, they were already informed that their employment is limited to a particular undertaking that will end at a definite period

Question 116

Tomas Lao Consturction v. NLRC

Answer 116

1. The execution of the project employment contracts was “farcical.” Obviously, the contracts were a scheme of petitioners to prevent respondents from being considered as regular employees.
2. Policy Instruction No. 20 is explicit that employers of project employees are exempted from the clearance requirement but not from the submission of termination report.

Question 117

Herma Shipyard v. Oliveros

Answer 117

1. Respondents knowingly and voluntarily entered into and signed the project-based employment contracts.
2. Performance by project-based employees of tasks necessary and desirable to the usual business operation of the employer will not automatically result in their regularization.
3. Repeated rehiring of project employees to different projects does not ipso facto make them regular employees.

Question 118

Since the employment can be made through an employment contract, would the stipulation of the parties in the contract prevail in determining the existence of EER or the employment status of the employee?

Answer 118

The SC held in one of its cases that stipulations in the contract alone is not controlling in determining the employer-employee relationship. The employment status is defined and prescribed by law and not by the parties.

Question 119

For example, a person is working as a freelancer (working as an artist who makes paintings, portraits, hand-made crafts and other related items) and enters into contract with another person or company occasionally.

Does EER exist in this kind of work?

Answer 119

No EER exists in this kind of work. Freelancers are considered as self-employed and I think the work that they do would fall under the classification of an “independent contractor” rather than an employee.
In Sonza v. ABS-CBN, the court held that independent contractors often present themselves to possess unique skills, expertise or talent to distinguish them from ordinary employees. In the case, the specific selection and hiring of Sonza, because of his unique skills, talent and celebrity status not possessed by ordinary employees, is a circumstance indicative, but not conclusive, of an independent contractual relationship.

Question 120

There are companies who outsource their janitorial services.

For example, if a janitor has been assigned with the company for 7 years already, is there a possibility that employer-employee relationship will exist between the janitor and the company, even though the employment contract of the janitor is with the service provider?

Answer 120

The janitors are outsourced personnel of the company. There exist an employer-employee relationship but only between the janitor and the contractor.
While the janitors formally report to the company and adhere to its rules and standards of work, if we apply the four-fold test, the control actually lies within the contractor. It is the contractor who has the power to select worker for engagement of works, they have the power of dismissal, they facilitate payment of wages, and have the power over the worker’s conduct.

Question 121

Applying the test to determine the existence of an employee-employer relationship, a jeepney drivers operating in boundary system which was mentioned on the examples of cases where EE-ER relationship exist provided, can we not considered them a mere lessee of the jeepney?

Answer 121

Under the Labor Code, the law determines the nature of employment, regardless of any agreement expressing otherwise. While the jeepney drivers may enter into a lease contract with the owner of the jeepney, what would actually determine if there exist an EER is defined under the law.
In the case of Villamaria v. CA, the Supreme Court held that under the boundary-hulog scheme incorporated in the Kasunduan of the driver and the jeepney’s owner, a dual juridical relationship was created between them: that of employer-employee and vendor-vendee. The fact that the driver does not receive fixed wages but only the excess of the “boundary” given to the owner/operator is not sufficient to change the relationship between them. Indubitably, the driver performs activities which are usually necessary or desirable in the usual business or trade of the owner/operator.

Question 122

The Labor Code defines “Rank and File Employees” by comparison with Managerial and Supervisory for the sake of the Book. Now, my question is that can we define or how should we define such a term without referring to the two other types of employees mentioned under Art. 219 of the Labor Code?

Answer 122

Aside from the express provision of law defining “rank and file employees” as those not performing managerial and supervisory functions, the Supreme Court in one of its cases defined them as those who are performing work that is routinary or clerical in nature.

Question 123

Do on-call workers also have employer-employee relationship with the company/agency they work at?

Answer 123

On-call workers may have employer-employee relationship with their company. We have to first look at the nature of the work being done by the on-call workers. After determining the nature of their work, we can now apply the four-fold test or the two-tiered test to ascertain whether there is really an employer-employee relationship.

Question 124

Is Contract Tracer considered Project Employee within the meaning of the law? If yes, can they be considered as regular employee IF the pandemic goes on for several more years?

Answer 124

Yes, they can be considered as project-based employees, provided that it is clearly agreed upon and the following requisites are present; First, the employee was assigned to carry out a specific project or undertaking. Second, the duration and scope of which were specified at the time they were engaged for such project. Contact tracing is the specific project, while the duration starts from the time of their employment until the end of this pandemic, it seemed not definite, nevertheless it is certain. Also, the court ruled in the case of Herma Shipyard v. Olivares that “performance by project-based employees of tasks necessary and desirable to the usual business operation of the employer will not automatically result in their regularization.”

For your second question, also yes, they can be considered as regular employees, if contract turned to be farcical, where the real intention of the employer is to prevent the employees from being regularized.

Question 125

Probationary employment shall not exceed 6 months from the date the employee started working, otherwise they will be considered as regular employees.

Will it be reasonable for an employer to terminate a probationary employee exactly on her 6th month effective immediately?

Answer 125

Yes, In the case of Enchanted Kingdom Inc vs. Verzo, the probationary employee was terminated on the 180th day or 6th month. The Employer won this case as the law allowed termination of a probationary at the very last day of his probation period.

Question 126

Given the rule that EER cannot be stipulated by parties; when the same agreed on different dates between the written contract and the actual first day of a probationary employee, what would be the reckoning period?

Let us put in a case: The contract of employment of Mr. Quezon provides that his first day of work was on April 24, 2017. However, prior to the signing of such a contract, Mr. Quezon was already rendering services to Company Bittermelon as if employed since January 1, 2017. Provided, the 4-fold test rule was established, notwithstanding the contract and rationale why the contract comes late. Assuming Mr. Quezon met the qualification set by his employer for regularization. Is it July 1, 2017, or October 24, 2017, the date of regularization of Mr. Quezon?

Answer 126

The date of Mr. Quezon’s regularization will be on July 1, 2017. Primarily the employees status are determined by the law and other case law. Article 282 of the Labor Code provides that “Probationary employment shall not exceed six months…”, so concluding that he should be regularized on October 24, 2017 is in violation of it. Six months must be counted from the time he started working or got employed, and not from the time he signed the contract, ruling otherwise will prejudice the employee.

Question 127

Seasonal employment

Answer 127

An arrangement between an employer and a seasonal employee.

Question 128

Seasonal employee

Answer 128

One who has been engaged to render work during a season.

Question 129

Seasonal employment v. Project employment

Answer 129

S - involves work or services that are seasonal in nature or lasting for the duration of the season

P - employment itself is not automatically considered seasonal so as to prevent the employee from attaining regular status

Question 130

Requisites to seasonal employment

Answer 130

The employer must show that

1. the employee must be performing work seasonal in nature
2. He had been employed for the duration of the season

Question 131

When the seasonal workers are continuously and repeatedly hired to perform the same tasks or activities for several seasons or even after the cessation of the season, this length of time may likewise serve as badge of regular employment. T or F.

Answer 131

True.

Question 132

Test of seasonal employment

Answer 132

Existence of the season.

Season

• period inside a calendar year
• cannot extend beyond a year
• period when the employer is justified in hiring additional help via seasonal employees due to increase of work, demand, or analogous thereto
• ex: harvest season in farms or fish pens, restaurants requiring additional help during graduation season or holidays
• ‘business season’

Question 133

The start and end date of the season should be clearly stated in the seasonal employment contract. T or F.

Answer 133

True.

Question 134

Burden of proof on seasonal employment

Answer 134

Burden lies on the employer. Season may be proven through various documentation such as previous year’s sales, orders, requests, workload, transactions, and similar thereto.

Question 135

Regular Seasonal Employee

Answer 135

They are called to work from time to time, mostly during certain season. The nature of their relationship with the employer is such that during off-season, they are temporarily laid off but they are re-employed during the season or when their services may be needed. They are not, strictly speaking, separated from the service but are merely considered as on leave of absence without pay until they are re-employed. Their employment relationship is never severed but only suspended. As such they can be considered as being in the regular employment of the employer.

Question 136

Requisites for regular seasonal employment

Answer 136

1. The seasonal employee should perform work or services that are seasonal in nature
2. They must have been employed for more than one season

Question 137

If the seasonal worker is engaged only for the duration of one season, then, he does not attain regularity of employment as seasonal worker. T or F.

Answer 137

True.

Question 138

Industrial-Commercial-Agricultural Workers Org. v CIR

Answer 138

Seasonal workers are not new workers. Petitioners contend that they are regular and old employees and, as such, they should have been re-hired at the start, in the month of October of each milling season, which usually lasts 5 months. Respondents, on the other hand, contend that these laborers are new, their employment terminating at the end of each milling season and, therefore, could not be re-admitted without the company violating the closed-shop agreement with the CAPAWA. Held: Petitioners, even if seasonal workers, were not “new workers” within the scope of the closed shop contract between the sugar central and the CAPAWA Union; hence, their discharge was illegal.

Employment of seasonal workers in sugar Centrals is not terminated at the end of each milling season. The cessation of the Central’s milling activities at the end of the milling season is not permanent or definitive; it is a foreseeable suspension of work, and both activities will be resumed, as they are in fact resumed, when sugar cane ripe for milling is again available. There is merely a temporary cessation of the manufacturing process due to passing shortage of raw material that by itself alone is not sufficient, in the absence of other justified reasons, to sever the employment or labor relationship between the parties.

Question 139

Gapayao v. Fulo, et al.

Answer 139

For regular employees to be considered as such, the primary standard used is the reasonable connection between the particular activity they perform and the usual trade or business of the employer.

Farm workers generally fall under the definition of seasonal employees. We have consistently held that seasonal employees may be considered as regular employees. Regular seasonal employees are those called to work from time to time. The nature of their relationship with the employer is such that during the off season, they are temporarily laid off; but reemployed during the summer season or when their services may be needed. They are in regular employment because of the nature of their job, and not because of the length of time they have worked. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists.

Question 140

Casual employment

Answer 140

An employment arrangement between an employer and a casual employee.

Question 141

Casual employee

Answer 141

Neither a regular employee, project employee, nor a seasonal employee. Also known as contractual employees.

Question 142

Requisites to casual employment

Answer 142

1. The employee must perform work which are incidental to the usual trade or business of the employer (in direct contrast to the work of a regular employee)
2. The employer must make such communication at the time of the probationary employee’s engagement

The principal test is that the employee should perform work that is only incidental to the usual trade or business of the employer employment and the employment should not exceed twelve months.

Question 143

Casual

Answer 143

occasional, coming without regularity

Question 144

Casual employee becomes regular after one year of service by operation of law. T or F.

Answer 144

True.

Question 145

Regular appointment papers are necessary for casual employees to become regular. T or F.

Answer 145

False.

Question 146

One year period in casual employment is reckoned from the hiring date. T or F.

Answer 146

True.

Question 147

Repeated rehiring of casual employee does not necessarily make him a regular employee.

Answer 147

False.

Question 148

The wages and benefits of a casual employee whose status is converted into regular employment should not be diminished. T or F.

Answer 148

True.

Question 149

Fixed-term employment

Answer 149

An employment arrangement between an employer and a fixed-term employee.

Question 150

Fixed-term employment is valid even if duties are usually necessary or desirable in the employer’s usual business or trade. T or F.

Answer 150

True.

Question 151

Notice of termination is not necessary in fixed-term employment. T or F.

Answer 151

True.

Question 152

Employee is deemed regular if the contract failed to state the specific fixed period of employment. T or F.

Answer 152

True.

Question 153

Fixed-term employees rendering work beyond one year would result to regular employment. T or F.

Answer 153

False.

Question 154

Hiring of fixed-term employees on a uniformly fixed 5-month basis and replacing them upon expiration of their contracts with other workers with the same employment status circumvents their right to security of tenure. T or F.

Answer 154

True.

Question 155

Employment on a “day-to-day basis for a temporary period” will result to regular employment. T or F.

Answer 155

True.

Question 156

Liability for illegal dismissal of fixed-term employee

Answer 156

Salary for unexpired portion only

Question 157

OFWs can never acquire regular employment. T or F.

Answer 157

True.

Question 158

Hiring of seafarer for overseas employment but assigning him to local vessel affects his status as an OFW. T or F.

Answer 158

False.

Question 159

Seafarer hired by overseas deployment but later assigned to domestic operations after the expiration of his overseas contract ceases to be an OFW. T or F.

Answer 159

True.

Question 160

Department Order 118-12

Answer 160

Bus owners and/or operators shall adopt a mutually-agreed upon “part-fixed, part performance” based compensation scheme for their bus drivers and conductors.

Question 161

Brent School v. Zamora

Answer 161

Stipulations in employment contracts providing for “term employment” or “fixed period employment” are valid when the period where agreed upon knowingly, and voluntarily by the parties without force, duress or improper pressure exerted on the employee; and when such stipulations were not designed to circumvent the laws on security of tenure.

Question 162

Purefoods Corp. v. NLRC

Answer 162

Criteria under which term employment cannot be said to be in circumvention of the law on security of tenure:

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
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

Question 163

Contract Tracers are / were aggressively sought by the DOH. The demand for such contract tracers were high at the onset of the pandemic, but not the same demand when the IATF eased their quarantine restrictions sometime in the 4th Quarter 2020. The question is, are contract tracers considered as seasonal employees within the meaning of the Labor Code?

Answer 163

No. The pandemic is not a season that occurs yearly.

Question 164

Can the employer terminate the casual employee even if the work has yet to be done? In what reason or circumstances?

Answer 164

A termination can be valid if there is serious misconduct or willful disobedience by employee of the lawful order of employer in connection with his work, gross or habitual neglect by employee of his duties, fraud or willful breach by employee of the trust reposed in him by his employer, commission of crime or offense by employee against the person of his employer or immediate member of his family or his duly authorized representative and other similar causes such as health reasons.

Question 165

If a company hires an employee to help them during their busy season and this busy season lasts for 7 months, is the employee still considered a seasonal employee?

Also, can the employer and employee only verbally agree on the seasonal term of the employment?

Answer 165

Yes and yes.

Question 166

How can we distinguish a fixed-term employment from a probationary employment if both provides for a 6 month period? Would the fixed term employee be considered also as a probationary or not?

Answer 166

A Fixed-term employment under the law, is an employment where employee is engaged for specific term or period. This type of employment is pursuant to the freedom of parties to fix duration of contract. While in a Probationary employment, provides for a trial period where the consideration is not for a specific term or period, but for the competence of an employee to be qualified for a permanent employment. The Supreme Court laid down the distinctions of the different types of employment which follows that a fixed-term employee cannot be considered as Probationary.

Question 167

Also, since both works for a period/season what is the difference with a fixed term employment to a regular seasonal employment? Why do we need to distinguish them?

Answer 167

A Regular seasonal employment is one where employee is regularly hired for work on a season. While Fixed-term is upon the agreement of the employer and employee with respect to the period or duration of his employment. Under regular seasonal employment, when he is rehired every working season, he is now considered a regular employee and covered with all the benefits granted to him by Labor law. While in Fixed-term, upon expiration of the agreement, the contract ceases and re-applying for a job will require a new application all together. The distinction of these types of employment is important for the employee to know their rights and benefits that are attached to the type of contact of employment they are under.

Question 168

Can we classify contractual employees under seasonal type? If not, what must be the distinction between the two?

Answer 168

No, Contractual Employees can’t be classified under Seasonal Employee. Under the law, Contractual employment is also known as Fixed Employment, which refers to someone that is engaged to perform a job, work or service for a pre-determined date of completion or where the employment has specific date of termination. The two types of employment are distinct from one another where in a Fixed or Contractual employment give parties the right to stipulate the terms or duration of the employment upon completion of the work or services needed. While in a Seasonal employment, employees are basically hired to work or render services that is seasonal in nature or lasting only for the duration of the season.

Question 169

Actually it perplexes me when I encounter some people says in their contract that they were only hired for fixed period, so that makes them contractual. However, such period was actually akin to certain season like Christmas, New Year, Summer, etc.
For the sake of proper classification. In this case, what should prevail? Is it the period they were contracted or the nature of the season why they were hired?

Answer 169

The manner when they were hired or the nature of the employment should prevail. A contractual or fixed-term employment may happen during a specific season but when they were hired by a virtue of the contract with a specific period of the commencement and termination period, or when terminated upon completion of work, then it is Fixed-term. On the other hand, it is Seasonal when the services need to render is seasonal in nature. The employment is terminated not upon completion of the work or the prescribed agreed period, but the end of that season alone.

Question 170

Art. 106 of the Labor Code

Answer 170

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.

The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this 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.

Question 171

The principal and contractor are solidarily liable to pay the wages of contractor’s employees. T or F.

Answer 171

True.

Question 172

The objective of the State in prohibiting labor-only contracting is to ensure that labor laws are followed and to prevent exploitation of workers. T or F.

Answer 172

True.

Question 173

Art. 107 of the Labor Code

Answer 173

The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.

Question 174

Article 106 also applies to indirect employers, who contracts independent contractors for their work or project. T or F.

Answer 174

True.

Question 175

Art. 108 of the Labor Code

Answer 175

An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same.

Question 176

A bond is necessary in job contracting to ensure that the contractor or subcontractor will be able to pay the wages of its employees. T or F.

Answer 176

True.

Question 177

Art. 109 of the Labor Code

Answer 177

The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.

Question 178

Job Contracting

Answer 178

An arrangement whereby a principal agrees to put out or farm out with the contractor or subcontractor the performance or completion of a specific job, work, or service within a definite or predetermined period, regardless of whether such job, work, or service is to be performed or completed within or outside the premises of the principal.

Question 179

In what circumstances is job contracting allowed?

Answer 179

a) 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 manner and method
b) 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
c) In performing the work farmed out, the contractor or subcontractor is free from the control and/or direction of the principal in all matters connected with the performance of the work except as to the result thereto
d) The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor or subcontractor under the labor laws

Question 180

DOLE Department Order 174, series of 2017

Answer 180

Rules implementing Articles 106-109 of the Labor Code. It imposes a total ban on labor-only contracting, strictly regulating lawful contractual arrangements and ending “ENDO” (end of contract scheme).

It did not abolish contractualization but it restricts or prohibits further the contracting out of workers, as well as other practices, schemes and arrangements which are contrary to law or public policy.

It reaffirms the Constitutional and statutory right to security of tenure of workers; applies to all parties in an arrangement where employer-employee relationship exists; and absolutely prohibits labor-only contracting, and specifies other illicit forms of contractual employment arrangements.

Question 181

Cabo

Answer 181

A person or group of persons or to a labor group which, under the guise of a labor organization, cooperative or any entity, 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.

Question 182

Contractor

Answer 182

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.

Question 183

In-house agency

Answer 183

A contractor which is owned, managed, or controlled directly or indirectly by the principal or one where the principal owns/represents any share of stock, and which operates solely or mainly for the principal.

Question 184

In-house cooperative

Answer 184

A cooperative which is managed, or controlled directly or indirectly by the principal or one where the principal or any of its officers owns/represents any equity or interest, and which operates solely or mainly for the principal.

Question 185

Labor-only contracting

Answer 185

An arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job or work for a principal, and the elements enumerated in Section 5 hereunder are present.

a. i. The contractor or subcontractor does not have substantial capital, or
ii. The contractor or subcontractor does not have investments in the form of tools, equipment, machineries, supervision, work premises, among others, and
iii. The contractor’s or subcontractor’s employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or

b. The contractor or subcontractor does not exercise the right to control over the performance of the work of the employee

Question 186

Who is in charge of regulating contracting and subcontracting arrangement by absolutely prohibiting labor-only contracting, and restricting job contracting allowed under the provisions of the Labor Code?

Answer 186

Secretary of Labor and Employment

Question 187

Substantial capital

Answer 187

Refers to paid-up capital stock/shares atleast Five Million Pesos (P5,000,000.00) in the case of corporations, partnerships and cooperatives; in the case of single proprietorship, a net worth of atleast Five Million Pesos (P5,000,000.00)

Question 188

Contractor’s employee

Answer 188

Refers to 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.

Question 189

Principal

Answer 189

Refers to any natural or juridical entity, whether an employer or not, who puts out or farms out a job or work to a contractor.

Question 190

Service Agreement

Answer 190

Refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job or work being farmed out for a definite or predetermined period.

Question 191

Other illicit forms of employment arrangements

Answer 191

a. When the principal farms out work to a CABO, which is a person or group of persons or a labor group which under the guise of a labor organization, cooperative or any entity, 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
b. Contracting out of job or work through an in-house agency
c. Contracting out of job or work through an in-house cooperative which merely supplies workers to the principal
d. Contracting out of a job or work by reason of a strike or lockout whether actual or imminent;
e. Contracting out of a job or work being performed by union members and such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization
f. Requiring the contractor’s/subcontractor’s employees to perform functions which are currently being performed by the regular employees of the principal
g. Requiring the contractor’s/subcontractor’s employees to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of payroll standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal or contractor from liability as to payment of future claims; or require the employee to become a member of a cooperative
h. Repeated hiring by the contractor or subcontractor of employees under an employment contract or short duration
i. Requiring employees under a contracting or subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the Contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement
j. Other practices, schemes or employment arrangements designed to circumvent the right of workers to security of tenure

Question 192

Rights of contractor/s’subcontractor’s employees

Answer 192

a. Safe and healthful working conditions
b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay, and separation pay
c. Retirement benefits under the SSS or retirement plans of the contractor/subcontractor
d. Social security and welfare benefits
e. Self-organization, collective bargaining and peaceful concerted activities including the right to strike
f. Security of tenure

Question 193

Service agreement is mandatory in job contracting. T or F.

Answer 193

True.

Question 194

All contractors and sub-contractors are required to be registered with DOLE. Failure to register gives rise to the presumption that the contractor or sub-contractor is engaged in labor-only contracting. T or F.

Answer 194

True.

Question 195

Job contracting v. Labor-only contracting

Answer 195

(1) substantial capital
JC - contractor or subcontractor has substantial capital
LOC - contractor or subcontractor does not have substantial capital

(2) right of control
JC - contractor or subcontractor is free from the control and/or direction of the principal in all matters except as to the result of the performance of work
LOC - contractor does not exercise right of control over the performance of the work of the employee

(3) parties involved
JC - trilateral relationship (principal, contractor, and contractor’s employee)
LOC - bilateral relationship (employer-employee relationship)

(4) validity
JC - valid and recognized by law
LOC - illegal and prohibited act

Question 196

Department Circular No. 01, Series of 2017 (Clarifying the Applicability of Department Order No. 174, Series of 2017

Answer 196

D.O. No. 174 only applies to trilateral relationships between the principal, subcontractor, and the employee which characterize contracting or subcontracting arrangements. DO No. 174 does not cover information technology-enabled services involving an entire or specific business process such as Business Process Outsourcing (BPO), Legal Process Outsourcing (LPO), and other similar services.

DO No. 174 is also not applicable to contracting or subcontracting arrangements in the construction industry which fall under the licensing coverage of the Philippine Contractors Accreditation Board (PCAB). The said construction industry arrangements shall be governed by DO No. 19, series of 1993 (Guidelines Governing the Employment of Workers in the Construction Industry), DO No. 13, series of 1998 (Guidelines Governing the Occupational Safety and Health in the Construction Order), and the DOLE-DPWH-DILG-DTI and PCAB Memorandum of Agreement-Joint Administrative Order No. 1, series of 2011.

Private Security Agencies are covered by DO No. 150, series of 2016 (Revised Guidelines Governing the Employment and Working Conditions of Security Guards and other Private Security Personnel in the Private Security Industry). However, the registration requirements under DO No. 174 should still be followed by Private Security Agencies.

DO No. 174 does not cover contractual relationships such as contracts of sale, contracts of lease, contracts of carriage, contracts of growing, toll manufacturing contracts, contracts of management, operation and maintenance, contracts, and other similar contracts governed by the Civil Code and other laws. In the same vein, DO No. 174 does not cover the contracting out of a job or work to a professional or individual with unique skills and talents who performs the work for the principal.

DO.. No. 174-17 applies only to trilateral relationships that can be characterized as contracting or subcontracting arrangements. It does not apply to:

Information technology-enabled services,
such as:
	a. Business process outsourcing
	b. Knowledge process outsourcing
	c. Legal process outsourcing
	d. IT infrastructure outsourcing
	e. Application development
	f. Hardware and/or software support
	g. Medical transcription
	h. Animation services
	i. Back office operations/support

Contracting or subcontracting arrangements in the private security industry, which are governed by D.O. No. 150-16.

Question 197

What is the rationale behind the prohibition of the labor-only contracting practice?

If such practice will be allowed, how will it be detrimental to labor or laborers?

Answer 197

The objective of this is to prevent the exploitation of workers and protect workers’ rights to employee benefit. A labor-only contractor presents itself as an employer even if it does not have the capital to run the business or capability to ensure that its workers are paid their wages and other benefits. This allows the labor-only contractor to circumvent the law and exploit its workers.

If labor-only contracting is allowed, the laborers contracted under it will be deprived of the privileges and benefits granted to regular employees by the law.

Question 198

Art 106 provides two conditions for “labor-only” contracting to exist.

1. 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
2. the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer.

If any of the two conditions is not present, like for example the activity performed is not directly related to the principal business, will the contract be still considered a “labor-only” contracting?

Answer 198

In the case of Allied Banking Corporation vs. Calumpang, the Supreme Court held that as a general rule, a contractor is presumed to be a labor-only contractor, unless such contractor overcomes the burden of proving that it has the substantial capital, investment, tools and the like. The contractor has the burden of prove to show that it is engaged in a legitimate job contracting as the law itself presumes by default that it is a labor-only contracting unless proven otherwise. Therefore, unless the contractor can satisfactory show the proof required by the law, it is still considered a labor-only contracting.

Question 199

A legitimate job contract, wherein an employer enters into a contract with a job contractor for the performance of the formers work is permitted by law. Why is it there is an employer-employee relationship between the job contractor and his employees is maintained?

Answer 199

DOLE Department Order No. 174 provides that 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.
The job contractor is the one who employed the employees to work for it and for the employees to render services to the principal under a service agreement. The principal is only responsible to the latter only for the proper payment of wages. If the job contractor and the employees does not have an employer-employee relationship, it will be considered as a labor-only contracting. Therefore, the job contractor and the employees maintain their employer-employee relationship.

Question 200

Is there a difference between the solidary liability of the Contractor/Subcontractor under Art. 106 and the Indirect Employer under Art. 107?

Answer 200

No, there is no difference between the solidary liability of the contractor or subcontractor under article 106 and the indirect employer under article 107. Article 109 of the Labor Code provides that every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. The contractor or subcontractor and the indirect employer are both considered as employer of the employees. Therefore, the solidary liability of the two are the same.

Question 201

Is Job-contracting synonymous to Independent contractor which was discuss on the case of Sonza vs. ABS-CBN?

Answer 201

No, job contracting is not synonymous to independent contractor. Job contracting, as defined by DOLE D.O. No. 174, refers to an arrangement whereby a principal agrees to farm out to a contractor the performance or completion of a specific job or work, while independent contractors, as stated by the Supreme Court on the case of Sonza vs. ABS-CBN, is when individuals with special skills, expertise or talent enjoy the freedom to offer their services as independent contractors.

Job contracting is a legitimate arrangement wherein the contractor agrees to offer services to the principal whereas independent contractors can be classified as employees who rendered their skills, expertise or talent for a consideration of professional fee, without entering into an employment contract with the one who is hiring. Therefore, job contracting is not synonymous to independent contractor.

Question 202

Given a situation where a person has been contracted under “labor-only”, but met the requisites of economic realities test to establish EER, is that person misclassified as contractor? If affirmative; Do we have jurisprudence or any labor statute to use, in order for him to demand his deprived rights as an employee against his employer?

Answer 202

When a contractor’s employee is contracted under a labor-only arrangement, the principal is deemed to be the employer of the contractor’s employee. Therefore, as the employer, the principal may be held liable for illegal dismissal, monetary claims, and damages.

Article 129 of the Labor Code allows interested parties to file a complaint for recovery of wages, simple money claims and other benefits.

Question 203

Is the liability of the Contractor or Subcontractor in DOLE Department Order 174, Series of 174 under Sections 5 and 6 same as Article 106 of the Labor Code?

Answer 203

DOLE D.O. No. 174, s. 2017 is the rules implementing article 106 to 109 of the Labor Code. Section 5 and 6 provides for the employment arrangements which are prohibited by the law, such as labor-only contracting, and other arrangements for being contrary to the law and public policy.

Question 204

Can a service agreement with a service agency have two or more principals? What are the risks if the service employee files a labor against his agency/contractor and the two principals? In case of a labor-only contracting, will the two principals be deemed the employers of the employee?

Answer 204

A Contractor (service agency) can have two or more principals since a contractor is a person or entity engaged in providing services for a specific job or undertaking farmed out by the principals under a service agreement.; or

A service agreement between a contractor and the principal can have two or more signatories if they represent their company (the principal); or

The service agreement should be made per principal. No two principals can share a single service agreement.

The only risk in filing a labor action against his contractor(agency) and principals is when you lost your case since the attorney’s fee will not be reimbursed.
Yes. if the two principals represent a single company/entity or if the contractor’s employee is providing services to the two principals. Since a principal is deemed the employer of the contractor’s employee if he/she is contracted under a labor-only arrangement.

Question 205

According to Section 8, DOLE D.O. No. 174, s. 2017, Contracting or subcontracting shall only be allowed in 4 situations.

Does that mean that the absence of any of the requisites automatically makes the agreement a labor-only contracting agreement?

Answer 205

Yes. Since the all four requirements are needed for a contractor to be recognized as a legitimate job contracting or subcontracting. The absence of one of the requirements will result to it becoming a labor-only contracting.

Question 206

Trilateral relationship in job contracting

Answer 206

Principal - Contractor - Contractor’s employee

Question 207

Relationships within the trilateral relationship

Answer 207

1. EER between the contractor and the employees it engaged to perform the specific job, work or service being contracted; and
2. Contractual relationship between the principal and the contractor as governed by the provisions of the NCC. [Sec. 5, par. 1, D.O. No. 18-A-11]

Question 208

2 kinds of contracts required in trilateral relationship

Answer 208

1. Employment contract between the contractor and its employees - Notwithstanding any oral or written stipulations to the contrary, such contract shall be governed by LC 294 and 295, and provisions on general labor standards. It shall include the following:
   a. Specific description of the job or work to be performed by the employee
   b. Place of work and terms and conditions of employment, including a statement of the wage rate applicable to the individual employee
2. Service Agreement between the principal and the contractor - It shall include the following:
   a. Specific description of the job or work being subcontracted, including its term or duration
   b. Place of work and terms and conditions governing the contracting arrangement, including the agreed amount of the contracted job or work, the standard administrative fee of not less than 10% of the total contract cost
   c. Provision on the issuance of the bond/s renewable every year. [Sec. 11, D.O. No. 174-17]

Question 209

Termination of employment in job contracting

Answer 209

1. if the cause is prior to the expiration of service agreement, it shall be governed by Articles 297-299 of the Labor Code
2. if the cause is pretermination of service agreement and not due to authorized causes, the right of the contractor’s employee to unpaid wages and other unpaid benefits including unremitted legal mandatory contributions (SSS, PhilHealth, Pag-IBIG, ECC) shall be borne by the party at fault, without prejudice to the solidary liability of the parties to the service agreement
3. if the cause is due to the expiration of service agreement, or from completion of the phase of the job, work or service for which employee is engaged–employee may opt to wait for re-employment within 3 months to resign and transfer to another contractor-employer. Failure of the contractor to provide new employment shall entitle the employee to payment of separation benefits as may be provided by law or the Service Agreement, whichever is higher, without prejudice to his/her entitlement to completion bonuses or other emoluments, including retirement benefits whenever applicable. The mere expiration of the Service Agreement shall not be deemed as a termination of employment of the contractor’s employees who are deemed regular employees of the contractor.

Question 210

Having substantial capitalization is not enough to declare one a legitimate contractor. If any of the other elements of labor-only contracting is present, they are labor-only contractors. T or F.

Answer 210

True.

Question 211

“Substantial capital and “investment in tools, equipment’s, implements machineries and work premises” should be treated as two distinct and separate requirements in determining whether there is permissible contacting and subcontracting arrangement. T or F.

Answer 211

True.

Question 212

The contractor shall be deemed registered only on the date of issuance of its Certificate of Registration (COR). The COR shall be effective for __ years, unless cancelled after due process. The same shall be valid in the region where it is registered. T or F.

Answer 212

2

Question 213

Grounds for cancellation of registration of a contractor

Answer 213

a. misrepresentation of facts in the application
b. non-submission of service agreement between the principal and the contractor when required to do so
c. non-submission of the required semi-annual reports as provided for in Sec 22
d. non-compliance with labor standards and working conditions
e. non-compliance with SSS, PHIC, and HDMF and ECC laws
f. submission of falsified or tampered application or supporting documents
g. collecting fees not authorized by law and other applicable rules & regulations
h. contractors engaged in labor-contracting only
i. violation of Sec 10 and 11 of these rules
j. violations of any provisions of the Labor Code (D.0. No. 174-17, Sec. 23)

Question 214

Effects of cancellation of registration

Answer 214

A final order of cancellation shall divest the contractor of its legitimate status to engage in contracting/subcontracting. Such order of cancellation shall be ground to deny an application for renewal of registration to a contractor under the Rules.

No contractor whose registration is cancelled under these Rules or any of its officers shall be allowed to operate and apply for new registration as contractor under either the same or different name.

Question 215

Digital Telecom v Digitel

Answer 215

Labor-only contracting is expressly prohibited by our labor laws. Article 106 of the Labor Code defines labor-only contracting as “supplying workers to an employer [who] 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.”

The legitimate job contractor provides services while the labor-only contractor provides only manpower. The legitimate job contractor undertakes to perform a specific job for the principal employer while the labor-only contractor merely provides the personnel to work for the principal employer.

Question 216

Philippine Bank of Communication v. NLRC

Answer 216

The “labor-only” contractor—i.e. “the person or intermediary”—is considered “merely as an agent of the employer.” The employer is made by the statute responsible to the employees of the “labor only” contractor as if such employees had been directly employed by the employer. Thus, where “labor only” contracting exists in a given case, the statute itself implies or establishes an employer-employee relationship between the employer (the owner of the project) and the employees of the “labor only” contractor, this time for a comprehensive purpose: “employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.” The law in effect holds both the employer and the “labor-only” contractor responsible to the latter’s employees for the more effective safeguarding of the employees’ rights under the Labor Code.

Question 217

Neri v. NLRC

Answer 217

It is well-settled that 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,

(b) the workers recruited and placed by such person are performing activities which are directly related to the principal business of the employer.

Question 218

Vinoya v. NLRC

Answer 218

Where the undertaking of a contractor does not involve the performance of a specific job, but rather the supply of manpower only, it clearly conducts itself as labor-only contractor.

Labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal.

Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.

Question 219

Joeb M. Aliviado et al v. Procter & Gamble Phils., Inc.

Answer 219

Where “labor-only” contracting exists, the Labor Code itself establishes an employer-employee relationship between the employer and the employees of the “labor-only” contractor; 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.

Question 220

What will happen if the parties did not stipulate the payment of bonds in the service agreement?

Answer 220

Where the employer fails to require the contractor to post a bond, the employer must answer for whatever liabilities the contractor may have incurred to his employees. This is without prejudice to its seeking reimbursement from the contractor for whatever amount it will have to pay the said employees.

Question 221

If the wage rate is not stipulated, will it make the contract null and void? Or can the parties orally settle the case?

Answer 221

he Service Agreement will not become null and void because we have this Wage Rationalization Act which provides that minimum wage rates for employees and workers in each and every region of the country which shall be prescribed by the Regional Tripartite Wages and Productivity Boards. In short, we have a law governing that no amount will be paid less than the prescribed rate in each region despite it was not stipulated in the contract.

Question 222

Will the two-notice rule still apply on the termination of the employees of the contractors in case the service agreement expires?

Answer 222

Basically the mere termination of the Service Agreement shall not deemed as termination of employment of the contractors/subcontractor’s employees who are regular employees of the latter. The employees may opt to wait for re-employment within three months to resign or transfer to another contractor-employer. Failure to provide new employment for the employee shall entitle the latter the payment of separation benefits as may be provided by law. Therefore, since the contractor and employee have employer-employee relationship, two-notice could be applied.

Question 223

Is it safe to say that under trilateral relatuonship, there is two (2) collective bargaining agreement entitled to employees? One with the pincipal and another one with the contractor?

Answer 223

Collective Bargaining Agreement is different from the two kinds of contract I presented on my report . But I got your point. There will be only one contract which the employees are entitled for. This is the employment contract between them and the contractor. The other one which is the Service Agreement is between the Principal and the Contractor. The Service Agreement will not be applicable to them.

Question 224

Why is it that the independent contractor and principal are liable in solidum? What is the purpose?

Answer 224

The joint and several liability of the contractor and the principal is mandated by the Labor Code to assure compliance of the provisions therein including the statutory minimum wage. The contractor is made liable by virtue of his status as direct employer. The principal on the other hand, is made as the indirect employer of the contractors employees for the purpose of paying the employees their wages should the contractor be unable to pay them. This joint and several liability facilitates, if not guarantees, payment of the workers performance of any work, task, job or project thus giving the workers ample protection as mandated by the 1987 Constitution.

Question 225

Is there any penalty in case it would be proven that there is indeed labor only contracting? If so, who would be sanctioned, the principal or the contractor/subcontractor?

Answer 225

If there is a final findings after due process that the contractor has engaged in labor-contracting it will be a ground for cancellation of its Certificate of Registration (COR). Sanctions will be under the contractor. Such cancellation of COR shall be a ground to deny an application for renewal of registration. But such cancellation of COR will not impair the validity of existing legitimate job-contracting agreements between the contractor and principal. Any valid and subsisting Service Agreement shall be respected until expiration.

Question 226

What will happen if the contractor, who has service agreement outside of the jurisdiction where it is registered, did not submit a copy of its Certificate of Registration to DOLE who has jurisdiction of the place? If it will be cancelled, will it be automatic cancellation?

Answer 226

The Certificate of Registration (COR) will not be cancelled or automatically cancelled. Sec 20 of D.O No. 174-17 states only submission of these documents outside the jurisdiction for purpose of monitoring compliance. As you will read along with the Sec 23 of the said order, it was not enumerated on the grounds on cancellation of COR. Cancellation of COR only is valid after due process.

Question 227

Can we consider trilateral relationship as another type of employment per se, provided that they enjoy security of tenure and entitled to benefits received by a regular employee, while at the same time the said tenure ends upon expiration of their agreement just like those of project-based employees?

Answer 227

This will not form another type of employment (Regular, Probi, Fixed, etc.) which we discussed previously because basically the contractor and employee have their own employment contract already. They are already entitled to security of tenure and all the rights and privileges as provided in the Labor Code. Once the Service Agreement of the principal and contractors, the employees of the contractor may opt to wait for re-employment within 3 months to resign and transfer to another contractor-employer. And failure to provide new employment shall entitle them to separation benefits as may be provided by law or the Service Agreement . Mere termination or expiration of Service Agreement shall not be deemed as termination of employment of the contractors employees who are regular.

Question 228

If a certain agency supplies manpower into a certain agency, can the workers demand to that certain agency that they be given the same employment benefits that their directly hired workers enjoys? Is there a certain time period where after which, the workers can ask for these same benefits?

Answer 228

Let us all remember that in Trilateral Relationship of Job Contracting, the employment contract is between the contractor/subcontractor and its employees. All specific job description, works to be performed by the employees, place and terms and work conditions as well as the statement of wage rate applicable to them are in the contract between them. They cannot demand any employment benefits of the direct hired employees of the principal because at the first place there is no employment contract between the Principal and Employees.

Question 229

Since ‘substantial capital’ and ‘investment in tools, equipment, implements, machineries and work premises’ are two separate requirements and the minimum amount for the former was already provided under D.O. No. 174-17, do we have a parameter for the contractors to gauge should they decide to meet the latter requirement?

Answer 229

It is very clear in the Labor Code Article 106 that , “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…… “ OR was used not AND. From the definition of Substantial Capital provided under D.O No. No. 174-17, for Corporation is at least 5,000,000 of the PAID UP CAPITAL and from Sole Proprietorship NET WORTH should be 5,000,000. In the language of Accounting, Paid Up Capital is inclusive of the Plant, Property and Equipment or the what we call tools , equipment’s and machineries. Net Worth referred in the sole proprietorship is also inclusive of Plant Property and Equipment. So substantial capital is inclusive of the investment in tools, equipment, implements, machineries and work premises.

Question 230

RA 9710

Answer 230

Magna Carta for Women. It is a comprehensive law
that seeks to eliminate discrimination among women by recognizing, protecting, fulfilling and promoting the rights of Filipino women, especially those in the marginalized sectors.

Question 231

Why is the Magna Carta for Women necessary?

Answer 231

Economic, political, and sociocultural realities affect women’s current condition

Question 232

Acts of discrimination under the Magna Carta for Women

Answer 232

a. any gender based distinction, exclusion, or restriction that impairs or nullifies the recognition, enjoyment, or exercise by women of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field
b. any act or omission that directly or indirectly excludes or restricts women of their access to and enjoyment of opportunities, benefits or privileges
c. any measure or practice of general application that fails to provide for mechanisms to offset or address sex or gender based disadvantages or limitations of women that restricts them from exercising their rights; or when women, more than men, are shown to have suffered the greater adverse effects of such measures or practices
d. discrimination compounded with other grounds, status, or conditions, such as ethnicity, age, poverty or religion

Question 233

Who are covered under RA 9710?

Answer 233

Women in the following sectors and groups:

1. small farmers and rural workers
2. fisherfolk
3. urban poor
4. workers in the formal economy
5. workers in the informal economy
6. migrant workers
7. indigenous people
8. moro
9. children
10. senior citizens
11. persons with disabilities
12. solo parents
13. others

Question 234

Sec. 18 of the Magna Carta for Women regarding special leave

Answer 234

A woman employee having rendered continuous aggregate employment service of at least 6 months for the last 12 months shall be entitled to a special leave benefit of 2 months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.

Question 235

Gynecological disorders

Answer 235

Conditions that affect the female reproductive organs and would require surgical procedures.

It includes, but is not limited to, dilatation and curettage and those involving female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician.

It shall also include hysterectomy, ovariectomy, and mastectomy.

Question 236

Qualifications for special leave on gynecological disorders

Answer 236

1. The woman employee should have been with
   the company for 12 months prior to surgery
2. She has rendered at least 6 months
   continuous aggregate employment service
   within the 12 month period prior to surgery
3. She has undergone surgery due to
   gynecological disorders certified by a
   competent physician

Question 237

RA 6725

Answer 237

An act strengthening the prohibition on discrimination against women with respect to terms and conditions of employment, amending for the purpose Article 135 of the Labor Code, as amended

Question 238

Acts of discrimination under RA 6725

Answer 238

a. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value

b. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of
their sexes

Question 239

Stipulations against marriage

Answer 239

It shall be unlawful for an employer to:
1. Require as a condition of employment or
continuation of employment that a woman
employee shall not get married; or

2. Stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated; or
3. Actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage

(Art. 134 [136] of the LC)

Question 240

Exceptions on the stipulations against marriage

Answer 240

1. When the employer can prove that the reasonable demands of the business require a distinction based on marital status and there is no better available or acceptable policy which would better accomplish the business purpose
2. An employer may discriminate against an employee based on the identity of employee’s spouse
3. Relationships that might compromise the interests of the company

Question 241

Prohibited acts under Art. 135 (137) of the LC

Answer 241

It shall be unlawful for any employer:
1. To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code

2. To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy
3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant

Question 242

What are the benefits women should not be denied of under Art. 135 [137] of the LC

Answer 242

1. facilities for women
2. maternity leave benefits
3. family planning services and incentives for family planning

Question 243

Prohibited acts of discharging a woman due to her pregnancy

Answer 243

a. to discharge her on account of her pregnancy

b. to discharge her while she is on leave due to her
pregnancy

c. to discharge her while she is in confinement due
to her pregnancy

d. to discharge her upon returning to her work for
fear that she may again be pregnant

e. to refuse her admission upon returning to her
work for fear that she may again be pregnant

Question 244

Other prohibited acts

Answer 244

1. To discharge any woman or any other employee for having filed a complaint or having testified or being about to testify under the Labor Code. (Art. 118)
2. To require as a condition for or continuation of employment that a woman employee shall not get married or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage (Art. 134 [136])

Question 245

RA No. 7877

Answer 245

Anti-Sexual Harassment Act

Question 246

RA 7877 limits the victim of sexual harassment to women. T or F.

Answer 246

False.

Question 247

3 situations contemplated in anti-sexual harassment act

Answer 247

1. employment environment
2. education environment
3. training environment

Question 248

Sexual harassment in work-related or employment environment

Answer 248

1. Sexual favor made as a condition for:
   a. hiring, re employment, or continued employment
   b. granting favorable compensation, terms, conditions, promotions or privileges
2. When the refusal to grant the sexual favor results in either:
   a. discrimination
   b. deprivation of employment
   c. diminished employment opportunities
   d. other adverse effects
3. When the sexual advances would:
   a. impair the employee’s rights or privileges under existing labor laws; or
   b. result in an intimidating, hostile, or offensive environment for the employee

Question 249

Persons who may be liable under anti-sexual harassment act

Answer 249

1. Employer, employee, manager, supervisor, agent of the employer, or any other person who, having authority, influence, or moral ascendancy over another in a work environment demands, requests or otherwise requires any sexual favor from another, regardless of whether the object of said act/s consents to the demand or request
2. Any person who directs or induces another to
   commit any act of sexual harassment
3. Any person who cooperates in the commission of any act of sexual harassment, without which it would not have been committed without such cooperation
4. The employer or head of office is solidarily liable for damages arising from the acts of sexual harassment committed in an employment, if such employer or head of office is informed of such acts by the offended party and no immediate action is taken thereon

Question 250

Duty of the employer or head of office in a work-related environmetn under the anti-sexual harassment act

Answer 250

1. Promulgate appropriate rules and regulations, in consultation with and jointly approved by the employees, through their duly designated representatives
2. Create a committee on decorum and investigation of
   cases on sexual harassment

Question 251

Prescription for sexual harassment

Answer 251

3 years (sec. 7)

Question 252

RA 11313

Answer 252

Safe Spaces Act

Question 253

Gender-based sexual harassment in the workplace

Answer 253

1. Any act or series of acts involving unwelcome sexual advances, requests or demands that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance or opportunities
2. Any conduct of sexual nature affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to recipient
3. Unwelcome and pervasive conduct that creates an intimidating and humiliating environment for the recipient

Question 254

Manners in which acts may be considered gender-based sexual harassment

Answer 254

a. verbal
b. physical
c. through the use of technology (text, email)
d. through the use of information and communication system

Question 255

Gender-based sexual harassment is only committed by a superior to a subordinate. T or F.

Answer 255

False. Such acts may be committed between peers or to a superior officer by a subordinate.

Question 256

Duties of employers under the safe spaces act

Answer 256

1. Disseminate a copy of this Act to all persons in the workplace
2. Provide preventive measures against gender-based sexual harassment
3. Create an independent, internal mechanism or a committee on decorum and investigation to address complaints on gender-based sexual harassment
4. Provide and disseminate a code of conduct or workplace policy to all persons in the workplace

Question 257

Requirements of the committee under the safe spaces act

Answer 257

1. Adequately represent the management, the employees from the supervisory rank, the rank and file employees, and the union (if any)
2. The head must be a woman
3. Not less than half of its members should be women
4. Must be composed of members who should be impartial and not connected to the alleged perpetrator
5. Must investigate and decide on the complaints within 10 days upon receipt
6. Must observe due process
7. Must protect the complainant from retaliation
8. Must guarantee confidentiality to the greatest
   extent possible

Question 258

Requirements of the code of conduct or workplace policy

Answer 258

1. Shall be made in consultation with all persons in the workplace
2. Shall expressly reiterate the prohibition on gender-based sexual harassment
3. Shall describe the procedures of the internal mechanism or committee

Question 259

Duties of employees and co-workers under the safe spaces act

Answer 259

1. Refrain from committing acts of gender-based sexual harassment
2. Discourage the conduct of gender-based sexual harassment in the workplace
3. Provide emotional or social support to fellow employees, co workers, colleagues or peers who are victims of gender-based sexual harassment
4. Report acts of gender-based sexual harassment witnessed in the workplace

Question 260

When is the employer liable under the safe spaces act?

Answer 260

1. Commission of acts of gender-based sexual
   harassment
2. Non-implementation of their duties under Sec 17 of the same Act
3. Not taking action on reported acts of gender-based sexual harassment committed in the workplace

Question 261

RA 10151

Answer 261

An act allowing the employment of night workers, thereby repealing Articles 130 and 131 of the Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines

Question 262

Applicability of RA 10151

Answer 262

Applies to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers.

Question 263

Night worker

Answer 263

Any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers’ representatives/labor organizations and employers.

Question 264

Night workers have the right to undergo a health assessment without charge. T or F.

Answer 264

True.

Question 265

A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. T or F.

Answer 265

True.

Question 266

Provision on women night workers

Answer 266

Article 158. Women Night Workers. - Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work:

(a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;
(b) For additional periods, in respect of winch a medical certificate IS produced stating that said additional periods are necessary for the health of the mother or child:
(1) During pregnancy;
(2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.

During the periods referred to in this article:

(i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorized causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities.
(ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position.

Pregnant women and nursing mothers may be allowed to work .at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work.

The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave.

The provisions of this article shall not leave the effect of reducing the protection and benefits connected with maternity leave under existing laws.

Question 267

Star Paper Corp. v Simbol

Answer 267

Wala sa report wait

Question 268

Domingo v. Rayala

Answer 268

Anti-Sexual Harassment Act
- It is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement—it may be discerned, with equal certitude, from the acts of the offender.

Question 269

Duncan Association v Glaxo

Answer 269

Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies; What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships.

Question 270

Philippine Telegraph & Telephone Co. v. NLRC

Answer 270

While it is true that the parties to a contract may establish any agreements, terms and conditions that they may deem convenient, the same should not be contrary to law, morals, good customs, public order or public policy.

Question 271

A is an OFW who left her 2 minor sons (10 years old and 14 years old) to her Mother. A and her mother agreed upon that her sons will not be allowed to work.
After several months, A’s minor children insist on working on the Karinderya of A’s mother.

Can A’s mother allowed the minors to work under her responsibility, being their current guardian despite the opposition of A?

Answer 271

Yes. Under RA 7610 as amended by RA 9231, a child below 15 years of age can work 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.

The law does not provide any penalty to the guardian who allows the minor to work despite opposition of the parents.

Question 272

Art. 62 of the LC

Answer 272

Article 62.Signing of apprenticeship agreement.Every apprenticeship agreement shall be signed by the employer or his agent, or by an authorized representative of any of the recognized organizations, associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime.

Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the apprentice.

Question 273

Art. 139 of the LC

Answer 273

Article 139.Minimum employable age.

No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.

Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations.

The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.

Question 274

RA 7658

Answer 274

An act prohibiting the employment of children below 15 years of age in public and private undertakes, amending for this purpose Sec. 12, Art. VIII or RA 7610.

Question 275

Children below 15 years of age shall not be employed except

Answer 275

1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed:Provided, however,That his employment neither endangers his life, safety, health and morals, nor impairs his normal development;Provided, further, That the parent or legal guardian shall provide the said minor 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 or television is essential:Provided, 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: andProvided, 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.

The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section.

Question 276

RA 9231

Answer 276

An act providing for the elimination of the worst forms of child labor and affording stronger protection for the working child, amending for this purpose RA 7610, as amended, otherwise known as the “Special Protection of Children against Child Abuse, Exploitation, and Discrimination Act”

Question 277

Child

Answer 277

All persons under eighteen (18) years of age

Question 278

Hours of work of a working child

Answer 278

(1) A child below 15 years of age may be allowed to work for not more than 20 hours a week: Provided, That the work shall not be more than four (4) hours at any given day
(2) A child 15 years of age but below 18 shall not be allowed to work for more than 8 hours a day, and in no case beyond 40 hours a week
(3) No child below 15 years of age shall be allowed to work between 8PM-6AM of the following day and no child 15 years of age but below 18 shall be allowed to work between 10PM-6AM of the following day

Question 279

How many % of the child’s income may be used for the collective needs of the family?

Answer 279

Not more than 20%

Question 280

Worst forms of child labor

Answer 280

(1) All forms of slavery, as defined under the “Anti-trafficking in Persons Act of 2003”, or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or
(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or
(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or

(4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it:
a) debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
b) exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
c) is performed underground, underwater or at dangerous heights; or
d) involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or
e) exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
f) is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or
g) is performed under particularly difficult conditions; or
h) exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or
i) Involves the manufacture or handling of explosives and other pyrotechnic products.

Question 281

A child may be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography. T or F.

Answer 281

False.

Question 282

Who may file a complaint under RA 9231?

Answer 282

(a) Offended party
(b) Parents or guardians
(c) Ascendant or collateral relative within the third degree of consanguinity
(d) Officer, social worker or representative of a licensed child-caring institution
(e) Officer or social worker of the Department of Social Welfare and Development
(f) Barangay chairman of the place where the violation occurred, where the child is residing or employed; or
(g) At least three (3) concerned, responsible citizens where the violation occurred

Question 283

Department Circular No. 02-18

Answer 283

Amending Department Circular No. 2, Series of 2017(Guidelines on the Issuance of Work Permit for Children Below 15 years of Age Engage in Public Entertainment or Information)

Question 284

Coverage of Working Child Permit

Answer 284

1. 1 A working child permit is required if a child below 15 years of age:
2. 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 include projects which are non-profit, advocacy materials or political advertisement; or
3. is a foreign national and will be engaged in public entertainment or information in the Philippines; or
4. will be engaged as regular extra or as part of a crowd and is included in the script or storyboard; or
5. has been selected for a project after undergoing auditions, workshops or VTR screenings; or
6. has been selected as semi-finalist in a singing, dance or talent contest for a television show
7. 2 A working child permit is not required if a child below 15 years of age:
8. is a spot extra or is cast outright on the day of filming or taping of a project; or
9. will join audition or VTR screenings; or
10. is part of the audience of a live television show unless the child’s participation is expected; or
11. is picked or chosen as a contestant from the audience of a live television show; or
12. is a contestant of a singing, dance or talent contest for a television show but has not yet been selected as a semi-finalist; or
13. is a recipient of gift-giving activities in television; or
14. is a participant in school-related performance such as play, skit or recital; or
15. is a participant in sport activities, trainings or workshops aimed at developing the child’s talent or skills; or
16. will be featured in documentary material

Question 285

Department Order No. 175, Series of 2017

Answer 285

Special Program for Employment of Students (SPES) Rules and Regulations

Question 286

Special Program for Employment of Students (SPES)

Answer 286

The DOLE’s youth-employment-bridging program which aims to provide temporary employment to poor but deserving students, out-of-school youth, and dependents of displaced or would-be displaced workers during summer and/or Christmas vacation or any time of the year to augment the family’s income to help ensure that beneficiaries are able to pursue their education.

Question 287

SPES applicants

Answer 287

1. Students: those currently enrolled in any secondary, tertiary or technical-vocational institutions
2. Out-of-school youth (OSY): those who are not enrolled at the time of application in a formal education or training institution recognized by the government
3. Dependents of displaced or would-be displaced workers: the children or ward, whether student or OSY, of a worker who was displaced or about to be displaced

Question 288

Eligibility in SPES

Answer 288

1. must be 15-30 years old at the time of application
2. if student
   a. parents’ combined net income after tax (plus his if meron) shall not exceed the annual regional poverty threshold for a family of 6 for the preceding year as determined by PSA and/or NEDA
   b. must have obtained a passing GWA during the last school year or term attended or immediately preceding his/her application
3. if OSY
   a. parents’ combined net income after tax (plus his if meron) shall not exceed the annual regional poverty threshold for a family of 6 for the preceding year as determined by PSA and/or NEDA

Question 289

Period of employment in SPES

Answer 289

a. students enrolled in the basic education
- summer vacation
- mid-year break
- Christmas vacation

b. OSY and those enrolled in the tertiary, vocational or technical education
- any time of the year

Period of employment shall be from 20-78 work days
During Christmas break, it shall only be 10-15 days.

Period of employment within the year shall not exceed 78 days, whether one time or cumulative.

Question 290

Department Order 149, Series of 2016

Answer 290

Guidelines in assessing and determining hazardous work in the employment of persons below 18 years of age

Question 291

The issuance of a DOLE Certificate to youth aged 15 to below 18 years of age is not required by law. T or F.

Answer 291

True.

No employer shall deny opportunity to any such youth applying for employment merely on the basis of lack of work permit or certificate of eligibility for employment. Any young person aged 15 to below 18 years of age may present copy of this DOLE advisory to any employer, job provider, government authority, or his/her representative when seeking employment or anytime during employment (DOLE Department Advisory No. 01-08).

Question 292

DOLE Department Advisory No. 01-08

Answer 292

The issuance of a DOLE Certificate to youth aged 15 to below 18 years of age is not required.

Question 293

RA No. 10361

Answer 293

Kasambahay Law

Question 294

Why was RA 10361 or Kasamabahay Law enacted?

Answer 294

R.A No. 10361 is enacted for the following reasons:

(a) The State strongly affirms labor as a primary social force and is committed to respect, promote, protect and realize the fundamental principles and rights at work including, but not limited to, abolition of child labor, elimination of all forms of forced labor, discrimination in employment and occupation, and trafficking in persons, especially women and children;
(b) The State adheres to internationally accepted working conditions for workers in general, and establishes labor standards for domestic workers in particular, towards decent employment and income, enhanced coverage of social protection, respect for human rights and strengthened social dialogue;
(c) The State recognizes the need to protect the rights of domestic workers against abuse, harassment, violence, economic exploitation and performance of work that is hazardous to their physical and mental health; and
(d) The State, in protecting domestic workers and recognizing their special needs to ensure safe and healthful working conditions, promotes gender-sensitive measures in the formulation and implementation of policies and programs affecting the local domestic work

Question 295

Who are covered by RA 10361 or Kasambahay Law?

Answer 295

1. General househelp
2. Nursemaid or yaya
3. Cook
4. Gardener
5. Laundry person
6. Working children or domestic worker 15 years and above but below 18 years of age
7. Any person who regularly performs domestic work in one household on an occupational basis

Question 296

Who are not covered by RA 10361 or Kasambahay Law?

Answer 296

1. Service providers
2. Family driver
3. Children under foster family arrangement
4. Any other person who performs work occasionally or sporadically and not on an occupational or regular basis

Question 297

Children under foster family arrangement

Answer 297

Those living with a family or household of relative/s and are provided access to education and given an allowance incidental to education; provided, that the foster family and foster care arrangements are in compliance with the procedure and requirements as prescribed by RA 10165 or Foster Care Act of 2012.

Question 298

Required conditions for children above 15 but below 18 to work as househelper

Answer 298

1. They shall not be allowed to work for more than 8 hours a day, and in no case beyond 40 hours a week
2. They shall not be allowed to work between 10 p.m. to 6 a.m. of the following day
3. They shall not be allowed to do hazardous work
4. They shall not be denied access to education and training

Question 299

Modes of hiring a kasambahay

Answer 299

1. directly

2. through private employment agencies registered with the DOLE regional offices

Question 300

Employer may opt to not shoulder the expenses for hiring. T or F.

Answer 300

False. The employer shall shoulder the expenses for hiring and the kasambahay shall not be charged of any cost of the recruitment, placement, or finder’s fee.

Question 301

The employer shall pay the expenses that are directly used for the transfer of the kasambahay from place of origin to the place of work. An employer can be reimbursed of the deployment expenses when the kasambahay unreasonably leaves the employer within 6 months from the time he/she started work. T or F.

Answer 301

True.

Question 302

If a kasambahay is hired through a Private Employment Agency, the agency is allowed to collect Service Fee from the employer. T or F.

Answer 302

True.

Question 303

Pre-employment requirements under Kasambahay Law

Answer 303

Before entering into an employment contract, the employer has the option to require the following from a kasambahay:

1. Medical certificate or health certificate issued by a local government health officer
2. Barangay and police clearance
3. NBI clearance
4. Duly authenticated birth certificate or, if not available, voter’s identification card, baptismal record, or passport showing the kasambahay’s age

Question 304

Requirements are mandatory when the employment of the kasambahay is facilitated through a private employment agency. T or F.

Answer 304

True.

Question 305

It is a requirement for a kasambahay to be trained and certified by TESDA prior to employment. T or F.

Answer 305

False. It is not a requirement for a kasambahay to be trained and certified by TESDA prior to employment. However, the kasambahay is encouraged to undergo competency assessment and be certified by TESDA. Training is not a requirement for competency assessment.

Question 306

Contents of the employment contract for a kasambahay

Answer 306

1. Duties and responsibilities of the kasambahay
2. Period of employment
3. Compensation
4. Authorized deductions
5. Hours of work and proportionate additional payment
6. Rest days and allowable leaves
7. Board, lodging and medical attention
8. Agreements on deployment expenses, if any
9. Loan agreement
10. Termination of employment
11. Any other lawful condition agreed upon by both parties

Question 307

Contract between the employer and kasambahay should be written and should contain conditions set by law. T or F.

Answer 307

True.

Question 308

Registration of kasambahay

Answer 308

The employer is required to register the kasambahay in the Registry of Domestic Workers in the barangay where the employer resides. For this purpose, the DILG, in coordination with the DOLE, shall formulate a registration system.

The registration of the kasambahay is free of charge.

Question 309

Exception to the general rule that domestic workers cannot acquire regularity of employment under RA 10361

Answer 309

Mere fact that the househelper is working within the premises of the business of the employer and in relation to or in connection with the business, as in staff houses for its guest or even for its officers and employees, warrants the conclusion that such househelper is and should be considered as a regular employee.

Question 310

Apex Mining Corp. v NLRC

Answer 310

The employer’s argument that Linda was not a regular employee has no merit. The definition of domestic servant or househelper contemplates one who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. The Supreme Court already held that the mere fact that the househelper is working in relation to or in connection with its business warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee. Here, Linda was hired not to minister to the personal comfort and enjoyment of her employer’s family but to attend to other employees who teach and live inside the campus.

Question 311

Mandatory benefits of Kasambahay

Answer 311

1. monthly minimum wage
2. daily rest period of 8 hours in total
3. weekly rest period of 24 uninterrupted hours
4. 5 days annual service incentive leave with pay
5. 13th month pay
6. SSS benefit
7. PhilHealth benefit
8. Pag-IBIG benefit

Question 312

Other rights and privileges of a kasambahay

Answer 312

1. freedom from employer’s interference in wage disposal
2. standard of treatment
3. board, lodging, and medical attendance
4. right to privacy
5. access to outside communication
6. access to education and training
7. right to be provided a copy of the employment contract
8. right to certificate of employment
9. right to form, join, or assist labor organization
10. right to terminate employment based on just cause
11. right to exercise religious beliefs and cultural practices

Question 313

Basic necessities of a kasambahay

Answer 313

1. At least 3 adequate meals a day, taking into consideration the kasambahay’s religious beliefs and cultural practices
2. Humane sleeping condition
3. Appropriate rest and basic medical assistance

Question 314

Labor Advisory 10-18

Answer 314

Entitlement of the kasambahay to other statutory leave benefits and labor standard benefits

1. Additional 5 days service incentive leave (Art. 95, LC)
2. Special Leave Benefit (RA 9710)
3. Solo Parent Leave (RA 8972)
4. VAWC Leave (RA 9262)

Question 315

Labor Code as amended by R.A. No. 7655

Answer 315

An Act Increasing the Minimum Wage of Househelpers

ART. 143. Minimum wage. — (a) Househelpers shall be paid the following minimum wage rates

1. P800 a month for househelpers in Manila, Quezon, Pasay and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities
2. P650 a month for those in other chartered cities and first class municipalities
3. P550 a month for those in other municipalities;

Provided, that the employees shall review the employment contracts of their househelpers every 3 years with the end in view of improving the terms and conditions thereof.

Provided, further, that those househelpers who are receiving at least P1,000 shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder.

Question 316

Minimum wage under RA 10361

Answer 316

a. P2,500 in NCR
b. P2,000 in chartered cities and 1st class municipalities
c. P1,500 for others

Question 317

Current minimum wage for kasambahays

Answer 317

P5,000 in NCR

https://nwpc.dole.gov.ph/stats/current-monthly-minimum-wage-for-domestic-workers/

Question 318

The employer is still liable under the SSS, PHILHEALTH, and PAG-IBIG laws in case the kasambahay refuses membership with those agencies, because it is mandatory and non-negotiable. T or F.

Answer 318

True.

Question 319

Exception to the general rule that the employer shall pay the SSS premium, and PhilHealth and Pag-IBIG contributions of the Kasambahay

Answer 319

If the wage of the kasambahay is P5, 000.00 or more, the kasambahay will pay his/her share in the premiums/contributions.

Question 320

Provisions protecting employers of a kasambahay

Answer 320

1. Prohibition against privileged information
2. Employer may require certain pre-employment documents prior to engagement
3. Employers are assured of quality services through DOLE-TESDA training, assessment, and certification of kasambahay
4. Forfeiture of 15-day unpaid salary should the kasambahay leave the residence of the Employer without any justifiable reason
5. Right to terminate the employment on justifiable grounds

Question 321

Grounds for termination of contract by the kasambahay

Answer 321

1. Verbal or emotional abuse of the kasambahay by the employer or any member of the household
2. Inhuman treatment including physical abuse of the kasambahay by the employer or any member of the household
3. Commission of a crime or offense against the kasambahay by the employer or any member of the household
4. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under the law
5. Any disease prejudicial to the health of the kasambahay, the employer, or member/s of the household
6. Other causes analogous to the foregoing

(Sec. 33, R.A. 10361)

Question 322

Grounds for termination of contract by the employer

Answer 322

1. Misconduct or willful disobedience by the kasambahay of the lawful order of the employer in connection with the former’s work
2. Gross or habitual neglect or inefficiency by the kasambahay in the performance of duties
3. Fraud or willful breach of the trust reposed by the employer on the kasambahay
4. Commission of a crime or offense by the kasambahay against the person of the employer or any immediate member of the employer’s family
5. Violation by the kasambahay of the terms and conditions of the employment contract and other standards set forth under the law
6. Any disease prejudicial to the health of the kasambahay, the employer, or member/s of the household
7. Other causes analogous to the foregoing

(Sec. 34, RA 10361)

Question 323

Effect of unjust dismissal by the employer

Answer 323

The kasambahay shall receive the following if he/she is unjustly dismissed by the employer:

1. Outright payment of earned wage
2. Indemnity benefit in the form of wage equivalent to 15 days work

Question 324

Liabilities of a kasambahay who leaves his/her employer without justifiable reason

Answer 324

1. Forfeiture of wage equivalent to 15 days work

2. Reimbursement of the deployment expenses, if the employment contract is terminated within 6 months from employment

Question 325

Responsibilities of the private employment agency under the law

Answer 325

1. Ensure that the kasambahay is qualified as required by the employer
2. Secure the best terms and conditions of employment for the kasambahay
3. Ensure that the employment agreement between the kasambahay and the employer stipulates the terms and conditions of employment and all the benefits in accordance with the IRR
4. Provide a pre-employment orientation briefing to the kasambahay and the employer about their rights and responsibilities in accordance with this IRR
5. Ensure that the kasambahay is not changed or required to pay any recruitment or placement fees
6. Keep copies of employment contracts and agreements pertaining to recruited kasambahay which shall be made available during inspections or whenever required by the DOLE or local government officials
7. Assist the kasambahay in filing his/her complaints or grievances against the employers
8. Cooperate with government agencies in rescue operations involving abused or exploited kasambahay
9. Assume joint and solidary liability with the employer for payment of wages, wage-related and other benefits, including monthly contribution for SSS, PhilHealth, and Pag-IBIG membership

Question 326

Unl acts under the Batas Kasambahay

Answer 326

1. Employment of children below 15 years of age
2. Withholding of the kasambahay’s wages
3. Interference in the disposal of the kasambahay’s wages
4. Requiring kasambahay to make deposits for loss or damage
5. Placing the kasambahay under debt bondage
6. Charging another household for temporarily performed tasks

Question 327

Industrial homework

Answer 327

It is a system of production under which work for an employer or contractor is carried out by a homeworker at his/her home. Materials may or may not be furnished by the employer or contractor.

It differs from regular factory production principally in that, it is a decentralized form of production where there is ordinarily very little supervision or regulation of methods of work.

Question 328

Homeworkers

Answer 328

They are those who perform in or about his own home any processing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an employer and sold thereafter to the latter.

Question 329

Employer of a homeworker

Answer 329

Includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, subcontractor or any other person:

1. Delivers or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions
2. Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person

Question 330

Homeworker v. Househelper

Answer 330

Homeworker: performs in or about his own home any processing or fabrication of goods or materials, in whole or in part, which have been furnished directly or indirectly, by an employer and sold thereafter to the latter

Househelper: minsters to the personal needs and comfort of his employer in the latter’s home

Question 331

Prohibitions for homework

Answer 331

The following shall be prohibited as homework:

1. Explosives, fireworks and similar articles
2. Drugs and poisons
3. Other articles, the processing of which requires exposure to toxic substances

Question 332

Exceptions to the general rule that the employer, contractor or subcontractor shall not make any deduction from the homeworker’s earnings for the value of materials which have been lost, destroyed, soiled or otherwise damage.

Answer 332

1. The homeworker is clearly shown to be responsible for the loss or damage
2. The employee is given reasonable opportunity to show cause why deductions should not be made
3. The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damages
4. The deduction is made at such rate that the amount deducted does not exceed 20% of the homeworker’s earnings in a week

Question 333

Labor Law v. Social Legislation

Answer 333

LL - all laws related to labor, involving rights, benefits and conditions of employer and employee

SL - broader term that is also inclusive of labor laws

Question 334

Labor Standards v. Labor Relations

Answer 334

LS - limited to minimum requirements under the law pertaining to wages, working conditions, benefits, etc that employers need to comply with

LR - employee and employer; employee and other employees

Question 335

Between capital and labor, which shall be afforded more protection by the law?

Answer 335

Those who have less in life should have more in law but not to the point of defending wrongdoings.

Question 336

3 kinds of due process

Answer 336

1. Constitutional - will not apply to termination of employment kasi this type of due process only applies when the government is involved
2. Statutory - applies to termination of contract
3. Contractual - applies to termination of contract

Question 337

Why does the State encourage the employees to stage unions?

Answer 337

For them to be able to voice out their concerns better and to empower their rights against employers.

Question 338

In cases of termination of employment, is right to counsel mandatory?

Answer 338

In administrative, company-level proceeding/investigation, no.

Question 339

What constitutional due processes may not be invoked in administrative, company-level proceeding/investigation?

Answer 339

1. The right to equal protection of laws. except if the State or any of its actions is involved
2. The right to counsel

Question 340

Art. 1702 of NCC v. Art. 4 of LC

Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

Art. 4. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

Answer 340

Art. 1702 is much broader in application as it encompasses all types of labor laws while Art. 4 is the construction and interpretation of the provisions of the labor code itself.

Question 341

Employer-employee relationship exists in all kinds of employees. T or F.

Answer 341

True.

Question 342

Are rights and benefits granted to workers under the Labor Code applicable to all employees in the Philippines?

Answer 342

No. Some government employees are excluded. As well as independent contractors–they are governed by the Civil Code.

Question 343

Are rights and benefits granted to workers under the Labor Code applicable to gov’t employees hired by GOCC without original charters (registered under corporation code or security exchange commission)?

Answer 343

Yes.

Question 344

Why is it important to determine the relationship between employer and employee?

Answer 344

To determine if employee is entitled to benefits. In case the employee is prejudiced, you will know which court will have exclusive jurisdiction.

Question 345

2 kinds of regular employees

Answer 345

1. those engaged to perform activities which are necessary or desirable in the usual business or trade of the employer
2. those casual employees who have rendered at least 1 year of service, whether continuous or broken, with respect to the activities in which they are employed

Question 346

Project

Answer 346

1. may refer to a particular job or undertaking that is within the regular business of the employer, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times
2. may also refer to a particular job or undertaking that is not within the regular business of the employer. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times

Question 347

Non-members of the Collective Bargaining Agreement are also entitled to receive benefits indicated in the said contract. T or F>

Answer 347

True.

Question 348

Provisions for apprenticeship

Answer 348

Arts. 57-72 of the Labor Code

Question 349

Provisions for learnership

Answer 349

Arts. 73-77 of the Labor Code

Question 350

Apprenticeship

Answer 350

Practical training on the job supplemented by related theoretical instruction

Question 351

Apprentice

Answer 351

A worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized in the Labor Code.

Question 352

Qualifications of apprenticeship

Answer 352

1. At least 14 years old
2. Possess vocational aptitude and capacity for appropriate tests
3. Possess the ability to comprehend and follow oral and written instructions

[Art. 59]

Question 353

Employers not in the highly technical industries may employ apprentices. T or F.

Answer 353

False.

*only highly technical and those in apprenticeable occupations approved by the Sec of Labor & Employment

Question 354

Apprenticeable occupation

Answer 354

Any form of employment which requires more than 3 months of practical training on the job supplemented by related theoretical instruction.

Question 355

Duration for apprenticeship

Answer 355

Not more than 6 months

Question 356

Apprenticeship wage rate may be below the minimum wage. T or F.

Answer 356

True. Provided it is not below 75% of the applicable minimum wage and that it is according with the apprenticeship programs approved by the Secretary of Labor and Employment.

Question 357

Who must sign the apprenticeship agreement?

Answer 357

Employer or agent and apprentice. If apprentice is a minor, by the parent or guardian or representative of DOLE.

Question 358

Is hiring of apprentices without compensation allowed?

Answer 358

Yes. If training is only required by the school or training program curriculum or as a requisite for graduation or board examination.

Question 359

Learners

Answer 359

Persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed 3 months.

[Art. 73]

Question 360

When can learners be hired

Answer 360

1. When no experienced workers are available
2. Their employment is necessary to prevent curtailment of employment
3. Their employment does not create unfair competition in terms of labor costs or impair lower working standards

Question 361

What shall the learnership agreement contain?

Answer 361

1. Name and addresses of learners
2. Duration of the learnership period which shall not exceed 3 months
3. Wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage
4. Commitment to employ learners as regular employees at the end of the learnership if they so desire

Question 362

What is the status of a learner who has been allowed or suffered to work for the first 2 months of the learnership and the training was terminated by the employer without the fault of the learner?

Answer 362

Regular employee

Question 363

Apprentices v. Learners

Answer 363

(1) Applicability
A: apprenticeable occupations in highly skilled industries
L: non-apprenticeable occupations in semi-skilled and other industrial corporations

(2) Necessity
A: to help meet the demand of the economy for trained manpower
L: to prevent curtailment of employment opportunities

(3) Minimum Age
A: 14 years old
L: None

(4) Duration
A: Not exceeding 6 months
L: Not exceeding 3 months

(5) Required Document
A: Apprenticeship Agreement
L: Learnership Agreement

Question 364

RA 7277 as amended by RA 9442

Answer 364

The Magna Carta for Disabled Persons [PWDs]

Question 365

Provisions suppletory to The Magna Carta for Disabled Persons [PWDs]

Answer 365

Arts. 78-81 of the LC

Question 366

Objective of RA 7277

Answer 366

1. to adopt policies ensuring rehabilitation, self-development and self-reliance of disabled persons; to develop their skills and potentials to enable them to compete favorably for available opportunities
2. to emphasize that disabled persons have the same rights as other people
3. to acknowledge the role of the private sector in promoting the welfare of disabled persons
4. to advocate for and encourage respect for disabled persons

Question 367

Disabled persons

Answer 367

Those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being

Question 368

Marginalized disabled persons

Answer 368

Disabled persons who lack access to rehabilitate services and opportunities to be able to participate fully in the socioeconomic activities and who have no means of livelihood or whose income fall below the poverty threshold

Question 369

Qualified Individual with a Disability

Answer 369

An individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires

Question 370

Impairment

Answer 370

Any loss, diminution or aberration of psychological, physiological, or anatomical structure or function

Question 371

Disability

Answer 371

1. a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or his activities
2. a record of such impairment
3. being regarded as having such impairment

Question 372

Handicap

Answer 372

A disadvantage for a given individual resulting from an impairment or a disability, that limits or prevents the function or activity, that is considered normal given the age and sex of the individual

Question 373

7 basic rights of disabled persons

Answer 373

1. Employment
2. Education
3. Health
4. Auxiliary Social Services
5. Telecommunications
6. Accessibility
7. Political and Civil Rights
8. Other Privileges and Incentives

Question 374

Sheltered Employment

Answer 374

The provision of productive work for disabled persons through workshops providing special facilities, income-producing projects or homework schemes with a view of giving them the opportunity to earn a living.

Must be provided when open employment is not possible. Only literate, [PWDs] disabled persons, or those who can follow simple instructions and routine work shall be eligible.

Question 375

PWDs right to employment

Answer 375

1. Equal opportunity for employment
2. Sheltered employment
3. Apprenticeship
4. Vocational Rehabilitation

Question 376

PWDs right to education

Answer 376

1. Access to quality education
2. Assistance to PWDs
3. Special Education
4. Provision of Vocational or Technical and other training programs as well as non-formal education
5. State universities and colleges
6. Program modification and eligibility for financial assistance

Question 377

PWDs right to health

Answer 377

1. National Health Program
2. Rehabilitation Centers
3. Health Services
4. Medical Personnel and Appliances

Question 378

Prohibition on Discrimination

Answer 378

1. Employment
2. Transportation
3. Use of Public Accommodation and Services
4. Public Ridicule

Question 379

Incentives to employers of PWDs

Answer 379

• Private entities that employ disabled persons who meet the qualifications - additional deduction from their gross income equal to 25% of the total amount paid as salaries and wages to disabled persons

• Private entities that improve or modify their physical facilities for reasonable accommodation for disabled persons – additional deduction from their net income, equal to 50% of the direct cost of the improvements or modifications
Excluded: improvements under BP 344

• Other incentives to be identified by the DOLE Secretary from time to time.

Question 380

Department Order No. 186, Series of 2017

Answer 380

Revised Rules for the Issuance of Employment Permits to Foreign Nationals

Question 381

Liability of Agent and Principal

Answer 381

The written application for a license to operate a private employment or manning agency shall be submitted with, among others, a verified undertaking stating that the applicant:

(1) Shall assume full and complete responsibility for:
▪ all claims and liabilities which may arise in connection with the use of license;
▪ all acts of its officials, employees and representatives done in connection with recruitment and placement;

(2) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriation;
(3) Shall guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of recruited workers [POEA Rules, Book II, Rule II, Sec. 1 (f) (2-5)]

Question 382

Exceptions to the rule on solidary liability

Answer 382

1. When the recruitment agency had no participation in the recruitment of worker
2. When the workers themselves were the ones who insisted that the recruitment agency had to send them back abroad despite their knowledge that the foreign employer might not be able to pay their wages because of financial difficulties and they agreed not to hold the agency responsible therefore

Question 383

Money claims of overseas employees in case of termination without just cause

Answer 383

Full reimbursement of his placement fee + deductions made with interest at 12% per annum + his salaries for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less

Question 384

Just causes of termination by employer

Answer 384

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work
2. Gross and habitual neglect by the employee of his duties
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative
4. Commission of a crime or offenses by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives
5. Other causes analogous to the foregoing

Question 385

RA 8042

Answer 385

Migrant Workers and Overseas Filipinos Act of 1995

Question 386

Who has jurisdiction to hear issues regarding EER?

Answer 386

Labor Arbiters of the National Labor Relations Committee (NLRC)

Question 387

Direct hiring is prohibited in the Philippines. T or F.

Answer 387

True. Overseas employers may only hire through the boards and entities authorized by the Secretary of Labor.

Question 388

Who are exempted from the ban on direct hiring?

Answer 388

Direct hiring by the members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor

a. Head of State
b. Government officials with the rank of at least deputy minister
c. Government officials with lesser rank, if endorsed by the POLO, or Head of Mission in the absence of the POLO
d. Employers of professionals and skilled workers with duly executed/authenticated contracts containing terms and conditions over and above the standards set by POEA
e. Relatives who are permanent residents of the host country

Question 389

Name hirees

Answer 389

Those individuals who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. Their hiring still has to be processed through the POEA.