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Article 4. Construction in Favor of Labor.

– All TOPIC UNDER THE SYLLABUS: RECRUITMENT AND employment, locally or abroad, whether for profit
doubts in the implementation and interpretation of PLACEMENT or not: Provided, That any person or entity which, in
the provisions of this Code, including its any manner, offers or promises for a fee,
1. Recruitment of Local and Migrant Workers
implementing rules and regulations, shall be employment to two or more persons shall be
resolved in favor of labor. b. Illegal Recruitment deemed engaged in recruitment and placement.”

ARTICLE 13 (b) Essential elements of illegalrecruitment b. Some principles on illegal recruitment.

"Recruitment and placement" refers to any act of (c) Simple Illegal recruitment 1. Mere impression is sufficient to constitute
canvassing, enlisting, contracting, transporting, illegal recruitment. But if no such
utilizing, hiring or procuring workers, and includes 1. ELEMENTS OF SIMPLE ILLEGAL RECRUITMENT. impression is given, the accused should not
referrals, contract services, promising or advertising The essential elements of simple illegal be convicted for illegal recruitment.
for employment, locally or abroad, whether for recruitment without the attendant qualifying 2. Mere promise or offer of employment
profit or not: Provided, That any person or entity circumstances, are: abroad amounts to recruitment.
which, in any manner, offers or promises for a fee,
employment to two or more persons shall be 1. The person charged with the crime must 3. There is no need to show that accused
deemed engaged in recruitment and placement. have undertaken recruitment and represented himself as a licensed recruiter.
placement activities under Article 13 [b] or
"Private fee-charging employment agency" means any of the activities enumerated in Article 4. Referrals may constitute illegal recruitment.
any person or entity engaged in recruitment and 34 of the Labor Code, as amended; and
placement of workers for a fee which is charged, 5. Recruitment whether done for profit or not
directly or indirectly, from the workers or employers 2. Said person does not have a license or is immaterial.
or both. authority to do so or more specifically, that
6. The act receiving money far exceeding the
he has not complied with such guidelines,
"License" means a document issued by the amount as required by law is not
rules and regulations issued by the
Department of Labor authorizing a person or entity considered as “recruitment and placement”
Secretary of Labor and Employment
to operate a private employment agency. as this phrase is contemplated under the
2. FIRST ELEMENT: RECRUITMENT AND law.
"Private recruitment entity" means any person or PLACEMENT ACTIVITIES.
association engaged in the recruitment and 7. Actual receipt of fee, not an element of the
placement of workers, locally or overseas, without a. Recruitment and placement activities, defined. crime of illegal recruitment.
charging, directly or indirectly, any fee from the The phrase “recruitment and placement”  Conduct of interviews amounts to illegal
workers or employers. refers to the acts described in paragraph [b] of recruitment.
"Authority" means a document issued by the Article 13 of the Labor Code, viz.:
 Absence of receipt, not essential.
Department of Labor authorizing a person or “[b] ‘Recruitment and placement’ refers to
association to engage in recruitment and placement  Absence of documents evidencing the
any act of canvassing, enlisting, contracting,
activities as a private recruitment entity. recruitment activities strengthens, not
transporting, utilizing, hiring or procuring workers,
weakens, the case for illegal recruitment.
 Only one person recruited is sufficient to HOLDER OF AUTHORITY MAY BE HELD a. When committed by a syndicate.
convict one for illegal recruitment. LIABLE FOR ILLEGAL RECRUITMENT.
Illegal recruitment is deemed committed by a
15. Conspiracy in illegal recruitment cases, how a. Under R.A. No, 8042, license or syndicate if it is carried out by a group of three (3)
proved. Direct proof of previous agreement to authority of the illegal recruiter is or more persons conspiring or confederating with
commit a crime is not necessary. immaterial. one another.

3. SECOND ELEMENT: NON-LICENSEE OR NON- Under R.A. No. 8042, the crime illegal b. Elements of illegal recruitment by a syndicate.
HOLDER OF AUTHORITY. recruitment may be committed by any
The essential elements of the crime of illegal
person, whether a non-license, non-holder,
 The phrase “non-licensee” or “non-holder recruitment committed by syndicate are as follows:
licensee or holder of authority.
of authority” refers to any person,
1. There are at least three (3) persons who,
corporation or entity which has not been b. Recruiter may be a natural or juridical
conspiring and/or confederating with one another,
issued a valid license or authority to engage person.
carried out any unlawful or illegal recruitment and
in recruitment and placement by the
TOPIC UNDER THE SYLLABUS: RECRUITMENT AND placement activities as defined under article 13 [b]
Secretary of Labor and Employment, or
PLACEMENT or in any prohibited activities under Article 34 of
whose license or authority has been
the Labor Code; and
suspended, revoked or cancelled by the 1. Recruitment of Local and Migrant Workers
POEA or the Secretary of Labor and 2. Said persons are not licensed or authorized to do
b. Illegal Recruitment
Employment. so, either locally or overseas.
(d) Illegal recruitment in large scale
 As far as agents or representatives The law, it must be noted, does not require
appointed by licensees or holders of (e) Illegal recruitment as economic that the syndicate should recruit more than one (1)
authority are concerned, they shall be sabotage person in order to constitute the crime of illegal
considered as falling within the ambit of the recruitment by a syndicate. Recruitment of one (1)
term “non-licensee” or “non-holder of 2. ILLEGAL RECRUITMENT, WHEN person would suffice to qualify the illegal
authority” if their appointments were not CONSIDERED ECONOMIC SABOTAGE. recruitment act as having been committed by a
considered illegal recruitment. Illegal recruitment is considered a crime syndicate.

 A person who promised a job placement involving economic sabotage when the commission 3. ILLEGAL RECRUITMENT IN LARGE SCALE.
abroad to another, for a consideration, thereof is attended by the following qualifying
circumstances. a. When committed in large scale.
when he is not duly licensed nor authorized
to engage in recruitment, is criminally liable 1. When committed by a syndicated; or Illegal recruitment is deemed committed in
for illegal recruitment. large scale if committed against three (3) or more
2. When committed in large scale. persons individually or as a group.
4. ANY PERSON, WHETHER A NON-
LICENSEE, NON-HOLDER, LICENSEE OR 2. ILLEGAL RECRUITMENT COMMITTED BY A b. Elements of illegal recruitment in large scale.
SYNDICATE.
1. The accused engages in the recruitment and 5. Recruitment in large scale is malum prohibitum (g) Liabilities
placement of workers and not malum in se.
(a) local employment agencies
2. The accused has not complied with guidelines (f) Illegal Recruitment vs. Estafa
(b) foreign employer
issued by the Secretary of Labor and Employment,
1. A PERSON, FOR THE SAME ACT, MAY BE
particularly with respect to the securing of license i. Theory of imputed
CHARGED AND CONVICTED SEPARATELY
or an authority to recruit and deploy workers, knowledge
FOR ILLEGAL RECRUITMENT AND ESTAFA
either locally or overseas; and
(h) Pretermination of contract of
3. The accused commits the same against three (3) migrant worker
a. Conviction under the Labor Code does
or more persons, individually or as a group.
not preclude conviction under other laws. c. Direct Hiring
c. Distinguished from illegal recruitment by a
In cases where some other crimes or Article 18. Ban on direct-hiring. No employer may
syndicate.
felonies are committed in the process of illegal hire a Filipino worker for overseas employment
As distinguished from illegal recruitment recruitment, conviction under the Labor Code does except through the Boards and entities authorized
committed by a syndicate, illegal recruitment in not preclude punishment under other statutes. by the Secretary of Labor. Direct-hiring by members
large scale may be committed by only one (1) Illegal recruitment is penalized under the Labor of the diplomatic corps, international organizations
person. What is recruitment of three (3) victims of Code which is a special law, and not under the and such other employers as may be allowed by the
such illegal recruitment, individually or as a group. Revised Penal Code. Not all acts which constitute Secretary of Labor is exempted from this provision.
the felony of estafa under the Revised Penal Code
d. Some principles on illegal recruitment -Entities authorized to engage in recruitment and
necessarily establish the crime of illegal recruitment
involving economic sabotage. placement of workers:
under the Labor Code. Estafa is wider in scope and
1. The number of persons victimized is covers deceits whether related or not related to 1. Public employment offices
determinative of the crime. A conviction for large recruitment activities.
scale illegal recruitment must be based on a finding 2. POEA
in each case of illegal recruitment of three (3) or 3. Private recruitment entities
more persons having been recruited, whether b. Some principles on illegal recruitment
individually or as a group. and estafa as separate crimes. 4. Private employment agencies

2. Failure to prove at least 3 persons recruited 1. Same evidence to prove illegal 5. Shipping or manning agents or
makes the crime a case of simple illegal recruitment may be used to prove estafa. representatives
recruitment. 6. Construction contractors
2. Conviction for both illegal recruitment
3. No illegal recruitment in large scale based on and estafa, not double jeopardy. 7. Such other persons or entities as may be
several information filed by only one complainant. authorized by the Secretary of Labor and
1. Recruitment of Local and Migrant Workers
4. The number of offenders is not material in illegal Employment
b. Illegal Recruitment
recruitment in large scale.
may be, both of which are authorized to (a) Any recruitment activities, including the
use the same exclusively to promote their prohibited practices enumerated under Article 34 of
DIRECT HIRING
objectives. this Code, to be undertaken by non-licensees or
“Direct Hiring” refers to the non-holders of authority, shall be deemed illegal
process of directly hiring workers by and punishable under Article 39 of this Code. The
employers for overseas employment as Article 26. Travel agencies prohibited to recruit. Department of Labor and Employment or any law
authorized by the DOLE Secretary and Travel agencies and sales agencies of airline enforcement officer may initiate complaints under
processed by the POEA, including: companies are prohibited from engaging in the this Article.
business of recruitment and placement of workers
1. Those hired by international (b) Illegal recruitment when committed by a
for overseas employment whether for profit or not.
organizations syndicate or in large scale shall be considered an
Article 27. Citizenship requirement. Only Filipino offense involving economic sabotage and shall be
2. Those hired by members of the penalized in accordance with Article 39 hereof.
citizens or corporations, partnerships or entities at
diplomatic corps.
least seventy-five percent (75%) of the authorized
Illegal recruitment is deemed committed by a
3.Name hires or workers who are and voting capital stock of which is owned and
syndicate if carried out by a group of three (3) or
able to secure overseas employment controlled by Filipino citizens shall be permitted to
more persons conspiring and/or confederating with
opportunity with an employer without the participate in the recruitment and placement of
one another in carrying out any unlawful or illegal
assistance or participation of any agency. workers, locally or overseas.
transaction, enterprise or scheme defined under
(d) If the offender is a corporation, Article 36. Regulatory power. The Secretary of the first paragraph hereof. Illegal recruitment is
partnership, association or entity, the Labor shall have the power to restrict and regulate deemed committed in large scale if committed
penalty shall be imposed upon the officer the recruitment and placement activities of all against three (3) or more persons individually or as
or officers of the corporation, partnership, agencies within the coverage of this Title and is a group.
association or entity responsible for hereby authorized to issue orders and promulgate
(c) The Secretary of Labor and Employment or his
violation; and if such officer is an alien, he rules and regulations to carry out the objectives and
duly authorized representatives shall have the
shall, in addition to the penalties herein implement the provisions of this Title.
power to cause the arrest and detention of such
prescribed, be deported without further non-licensee or non-holder of authority if after
Article 37. Visitorial Power. The Secretary of Labor
proceedings; investigation it is determined that his activities
or his duly authorized representatives may, at any
(e) In every case, conviction shall cause and time, inspect the premises, books of accounts and constitute a danger to national security and public
carry the automatic revocation of the records of any person or entity covered by this Title, order or will lead to further exploitation of job-
license or authority and all the permits and require it to submit reports regularly on prescribed seekers. The Secretary shall order the search of the
privileges granted to such person or entity forms, and act on violation of any provisions of this office or premises and seizure of documents,
under this Title, and the forfeiture of the Title. paraphernalia, properties and other implements
cash and surety bonds in favor of the used in illegal recruitment activities and the closure
Article 38. Illegal recruitment. of companies, establishments and entities found to
Overseas Employment Development Board
or the National Seamen Board, as the case be engaged in the recruitment of workers for
overseas employment, without having been penalized under Article 39 of Labor Code, and Employment to engage in the recruitment and
licensed or authorized to do so. may committed only by non-licensees or placement of workers for overseas employment.
non-holders of authority.
a. Requisites. 3. PRIVATE RECRUITMENT ENTITY.
8. “Authority” refers to a document issued by
In order for an activity to be considered as A “private recruitment entity” refers to any
the Secretary of Labor and Employment
“recruitment” and “placement” as described in person or association engaged in the recruitment
authorizing the officers, personnel, agents
Article 13 [b] of the Labor Code, the following and placement of workers without charging,
or representatives of a licensed
elements must concur: directly or indirectly, any fee from the workers or
recruitment/manning agency to conduct
employers.
1. A person or entity is engaged in any activity recruitment and placement activities in a
of canvassing, enlisting, contracting, place stated in the license or in a specified 4. DISTINCTIONS BETWEEN A PRIVATE
transporting, utilizing, hiring or procuring place. EMPLOYMENT AGENCY AND A PRIVATE
workers, including referrals, contract RECRUITMENT ENTITY.
9. 2. PRIVATE EMPLOYMENT AGENCY
services, promising or advertising for
A private employment agency technically
employment; 10. A “private fee-changing
may be distinguished from a private recruitment
employment agency” is a person or entity
2. The recruitment and placement may or may entity as follows:
engaged in recruitment and placement of
not be for profit.
workers for a fee which is charged, directly 1. A private employment agency has a right duly
3. b. Presumption of engaging in recruitment or indirectly, from workers or employees or recognized in law to charge a fee, directly or
and placement. both. indirectly, from the workers or employers or from
both; while a private recruitment entity does not
4. Any person or entity which, in any manner, TOPIC UNDER THE SYLLABUS: RECRUITMENT AND
charge any fee either directly or indirectly from the
offers or promises for a fee, employment to PLACEMENT
workers or employers to which they would be
two (2) or more persons is deemed
1. Recruitment of Local and Migrant Workers deployed;
engaged in recruitment and placement.
b. Illegal Recruitment – (a) License vs. 2. The former is authorized to recruit only for
5. CONCEPT OF ILLEGAL RECRUITMENT.
Authority overseas placement or deployment; while the latter
6. The term “illegal recruitment” is is allowed to recruit for both local and overseas
1. DISTINCTION BETWEEN A “LICENSE” AND
defined as any recruitment activities, deployment.
AN “AUTHORITY.”
including the prohibited practices
3. The former derives its authority to recruit and
enumerated under Article 34 of the Labor “License” refers to the document issued by
place workers from a document denominated as a
Code, to be undertaken by non-licensees or the Secretary of Labor and Employment authorizing
“license”; while the latter sources its authority from
non-holders of authority. a person, partnership or corporation to operate a
a document called “authority.”
private recruitment/manning agency.
7. Based on the paragraph [a] of
But under the Omnibus Rules and
article 38, illegal recruitment as defined Such “entity” may be a partnership or
Regulations Implementing the Migrant Workers and
therein, in relation Article 13 [b] and 34 and corporation duly licensed by the Secretary of Labor
Overseas Filipinos act of 1995, as amended by R.A. (b) An "apprentice" is a worker who is covered by a Article 78. Definition. Handicapped workers are
No. 10022 (March 08, 2010), these two terms have written apprenticeship agreement with an those whose earning capacity is impaired by age or
now a common definition as follows: individual employer or any of the entities physical or mental deficiency or injury.
recognized under this Chapter.
“Private Recruitment/Employment Agency” refers
to a person, partnership or corporation duly (c) An "apprenticeable occupation" means any
Article 79. When employable. Handicapped workers
licensed by the Secretary of Labor and Employment trade, form of employment or occupation which
may be employed when their employment is
to engage for a fee which is charged, directly or requires more than three (3) months of practical
necessary to prevent curtailment of employment
indirectly, from the workers who renewed their training on the job supplemented by related
opportunities and when it does not create unfair
employment contracts with the same principal. theoretical instruction.
competition in labor costs or impair or lower
(d) "Apprenticeship agreement" is an employment working standards.
contract wherein the employer binds himself to
Article 40. Employment permit of non-resident Article 80. Employment agreement. Any employer
train the apprentice and the apprentice in turn
aliens. Any alien seeking admission to the who employs handicapped workers shall enter into
accepts the terms of training.
Philippines for employment purposes and any an employment agreement with them, which
domestic or foreign employer who desires to Article 59. Qualifications of apprentice. To qualify as agreement shall include:
engage an alien for employment in the Philippines an apprentice, a person shall:
(a) The names and addresses of the handicapped
shall obtain an employment permit from the
(a) Be at least fourteen (14) years of age; workers to be employed;
Department of Labor.
(b) Possess vocational aptitude and capacity for (b) The rate to be paid the handicapped workers
Article 57. Statement of objectives. This Title aims:
appropriate tests; and which shall not be less than seventy five (75%)
(1) To help meet the demand of the economy for percent of the applicable legal minimum wage;
(c) Possess the ability to comprehend and follow
trained manpower;
oral and written instructions. (c) The duration of employment period; and
(2)To establish a national apprenticeship program
(d) Trade and industry associations may recommend (d) The work to be performed by handicapped
through the participation of employers, workers
to the Secretary of Labor appropriate educational workers.
and government and non-government agencies;
requirements for different occupations.
and (e) The employment agreement shall be subject to
Article 60. Employment of apprentices. Only inspection by the Secretary of Labor or his duly
(3) To establish apprenticeship standards for the
employers in the highly technical industries may authorized representative.
protection of apprentices.
employ apprentices and only in apprenticeable
Article 83. Normal hours of work. The normal hours
Article 58. Definition of Terms. As used in this Title: occupations approved by the Secretary of Labor and
of work of any employee shall not exceed eight (8)
Employment. (As amended by Section 1, Executive
(a) "Apprenticeship" means practical training on the hours a day.
Order No. 111, December 24, 1986)
job supplemented by related theoretical
4. NORMAL HOURS OF WORK.
instruction.
The total number of working hours of a precedence, Memorandum Circular No. 81 was his goods or services or when there is lack of raw
worker or employee shall not exceed eight (8)hours issued by the Office of the President on December materials.
daily. This eight (8) hour period is called the normal 14, 2004 which implemented the Staggered
f. Flexible work schedule under R.A. No. 8972.
hours of work. Any work in excess of eight (8) hours
Working Time in the Executive Department in
is considered overtime work. Under Republic Act. No. 8972, otherwise known as
relation to the other branches of government and
“The Solo Parents’ Welfare Act of 2000,” solo
4.1. EXCEPTIONS: the private sector in Metro Manila during the
parents are allowed to work on a flexible schedule,
Christmas Season from December 15, 2004 to
a. Reduction of 8-hour working day by employer. thus:
The employer, in the lawful working time per day January 6, 2005. According to this issuance, the
“Sec. 6. Flexible Work Schedule. – The
provided that no corresponding “Staggered Working Time” is meant to improve the
employer shall provide for a flexible working
delivery of goods and services.
reduction is made on the employee’s wage or salary schedule for solo parents: Provided, that the same
equivalent to an eight-hour work day. In instances d. Work in different shifts. shall not affect individual and company
where the number of hours required by the nature productivity: Provided, further, That any employer
In establishments where work is in different, work
of work is less than eight hours, such number of
done by the employee beyond his eight-hour shift is g. Flexible work arrangements during economic
hours should be regarded as the employee’s full
considered overtime work which should be difficulties and national emergencies.
working day.
compensated accordingly. For example, if there are
DOLE Secretary Marianito D. Roque issued
b. Broken hours. three (3) eight-hour shifts in a “work day,” say, the
Department Advisory No. 2, Series of 2009, on
first shift is from 6:00 a.m. to 2:00 p.m.; second
The normal eight (8) hours mandated by law do not January 29, 2009 enunciating the Guidelines on the
always mean continuous and uninterrupted shift from 2:00 p.m. to 10:00 p.m.; and the third Adoption of Flexible Work Arrangements.
shift from 10:00 p.m. to 6:00 a.m. of the following
eight (8) hours of work. As may be required peculiar The following are the flexible work
day, the employee whose regular eight-hour work is
circumstances of employment, it may mean broken arrangements which may be considered, among
in the first shift (6:00 a.m. to 2:00 p.m.), once
hours of say, four hours in morning and four hours others:
required to work in the second or third shift, should
in the evening or a variation thereof, provided the
be given additional compensation for such work 1. “Compressed Workweek” refers to one where
total eight (8) hours is accomplished within one
beyond his regular working hours which legally is the normal workweek is reduced to less than six (6)
“work day” as this term is understood in law [infra].
considered overtime work. days but the total number of work-hours of 48
Hence, the 4-hour work done in the evening as in
hours per week shall remain. The normal workday is
the example above, should not be considered e. Reduction of workdays on account of losses.
increased to more than eight hours but not exceed
overtime work since the eight-hour period has not
Workdays may be reduced in situations where the twelve hours, without corresponding overtime
yet been exceeded.
reduction in the number of regular working days is premium. The concept can be adjusted accordingly
c. Staggered working time. resorted to by the employer to prevent serious depending on the normal workweek of the
losses due to causes beyond his control , such as company pursuant to the provisions of Department
Staggered working time is a valid scheme which
when there is a substantial slump in the demand for Advisory No. 02, Series of 2004, dated
may be resorted to by employers. As a matter of
December 2, 2004. time that they actually rendered work. Hence, in The second paragraph of Article 83 of the
the case of cost-of-living allowance (COLA), if the Labor Code enunciates the rule on hours of work of
2. “Reduction of Workdays” refers to one where the
worker rendered work for less than the prescribed hospital and clinic personnel. Its provision as well as
normal workdays per week are reduced but should
the corresponding provisions in the Rules to
not last for more than six (6) months. eight (8) hours, say for four (4) hours only, the
Implement the Labor Code, apply to:
employer may validly make proportionate payment
3. “Rotation of Workers” refers to one where the
of COLA, if it has granted a proportionate payment a. All hospitals and clinics, including those with a
employees are rotated or alternately provided work
in the worker’s basic wage. Following the principle bed capacity of less than one hundred (100) which
within the workweek.
of “no work, no pay, no allowance,” the workers are are situated in cities or municipalities
4. “Forced Leave” refers to one where the not entitled to said benefits for the four-hour
with a population of one (1) million or more; and
employees are requires to go on leave for several period that they did not render work. It is important
days or weeks utilizing there leave credits, if there to stress, however, that the employees should have b. All hospitals and clinics with a bed capacity of at
are any. entered into an agreement with the employer that least one hundred (100), irrespective of the size of
they will be employed as part-time workers. the population of the city or municipality where
5.”Broken-time schedule” refers to one where the
they may be situated.
work schedule is not continuous but the work-hours In view of the foregoing, on the issue of
within the day or week remain. whether the company should give the part-time b. Definition of terms.
employees concerned only fifty percent (50%) of
6. “Flexi-holidays schedule” refers to one where the the wages and other benefits that the employer The terms “hospital” and “clinic” shall mean a place
employees agree to avail of the holidays at some may pay the workers who will work for four (4) devoted primarily to the maintenance and
other days provided there is no diminution of hours a day, 6:00 to 10:00 in the evening, it was and operation of facilities for the diagnosis,
existing benefits as a result of such arrangement. opined in the Advisory Opinion on Conditions of treatment and care of individuals suffering from
Under these flexible work arrangements, Employment of Part-Time Workers issued by the illness, disease, injury or deformity, or in need of
the employees are encouraged to explore Bureau of Working Conditions of the Department of obstetrical or other medical and nursing care. Either
alternative schemes under any agreement and Labor and Employment, that compensation in term shall also be construed as in any institution,
company policy or practice in order to cushion and Proportion to the time they actually rendered work building, or place where there are installed beds or
mitigate the effect of the loss of income of the or equivalent to only four (4) hours a day must be cribs or diseases, injuries, deformities or abnormal
employees. given to part-time workers. This is, however, physical and mental states, maternity cases or
without prejudice to any individual or collective sanitarial care or infirmaries, nurseries, dispensaries
h. Part-time work.
agreement or company practice or policy that and such other
The rules implementing the different Wage provides higher basis of computation of wages. Q. 247 May the employer soften the meal period
Orders issued by the Regional Tripartite Wages and
4.2 HOURS OF WORK OF HOSPITAL AND CLINIC to less than one hour? Explain.
Productivity Boards (RTWPBs) in the various regions
in the country carry a uniform provision to the PERSONNEL. Ans. Yes, the employer may shorten the meal
effect that wages and allowances of part-time a. Coverage. period to not less than 20 minutes and such period
workers shall not be less than the compensable
being credited as compensable hours, in the 6. 3. In each case, the employer may extend credited as compensable hours worked of the
following cases; the working hours of his productive man- employee:
hours without being liable for overtime pay.
(1) Where the work is non-manual in nature or does a. Where the work is non-manual work in nature or
not involve strenuous physical exertion; 7. 4. Industrial enterprises with one or two does not involve strenuous physical exertion;
workshifts may adopt any of workshifts
(2) Where the establishment regularly operated not b. Where the establishment regularly operates for
prescribed for enterprises with three (3)
less than sixteen hours a day; not less than sixteen (16) hours a day;
workshifts to prevent serious loss or
(3) In case of actual or impending emergencies or damage to materials, machineries or c. In cases of actual or impending emergencies or
there is urgent work to be performed on the equipment that may result in case of power when there is urgent work to be performed on
machineries, equipment or installation to avoid interruptions. machineries, equipment or installations to avoid
serious loss which the employer would otherwise serious loss which the employer would otherwise
5. The days when work was not required and no
suffer; and suffer; and
work could be done because of shutdown due to
(4) Where the work is necessary to prevent serious electrical power interruptions, lack of raw materials d. Where the work is necessary to prevent serious
loss of perishable goods. and repair of machines, are not deemed hours loss of perishable goods.
worked.
6. WORK INTERRUPTION DUE TO BROWNOUTS. c. Shortening of meal time not less than 20
7. MEAL BREAKS (ARTICLE 85, LABOR CODE) minutes, when not compensable.
The following are the effects of work interruption
due to brownouts. a. General rule on meal period. The law allows a situation where the employees
themselves request for the shortening of meal
1. Brown-outs of short duration not exceeding As a general rule, every employer is required to
period not less than twenty (20) minutes (say, thirty
twenty (20) minutes shall be treated a give his employees, regardless of sex, not less
minutes, or from 12:00 to 12:30 p.m. instead of
worked of compensable hours whether
than one (1) hour (or 60 minutes) time-off for 12:00 to 1:00 p.m.) for the purpose of allowing
used productively by the employees or not.
regular meals. them to leave work earlier than the lapse of the
2. Brown-outs running for more than twenty eight (8) hours required by law (say, 4:30 p.m.
Being time-off, it is not compensable hours
(20) minutes may not be treated as hours instead of 5:00 p.m.). This shortened period,
worked. In this case, the employee is free to do
worked
anything he wants, except to work. If he is required, however, shall not be considered compensable
3. provided any of the following conditions are however, to work while eating, he should be working time provided the following conditions are
present: compensated therefor. complied with:

4. a. The employees can leave their b. Shortening of meal time to not less than 20 a. The employees voluntarily agree in writing
workplace or go elsewhere whether within minutes, when compensable. to a shortened meal period of thirty (30)
or without the work premises; or minutes and are willing to waive the
In the following cases, a meal period of not less
overtime pay for such shortened meal
5. b. The employees can use the time than twenty (20) minutes may be given by the
period;
effectively for their own interest. employer provided that such shorter meal period is
b. There should be no diminution in the time schedule from 30 minutes to one (1) some other day of the week shall not exempt the
benefits of the employees which they hour without pay. Since private respondent employer from paying the additional compensation
receive prior to the effectivity of the felt affected adversely by the change in the required in this Chapter.
shortened meal period; work schedule and discontinuance of the
30-minute paid “on call”
c. c. The work of the employees does not
Article 93. Compensation for rest day, Sunday or
involve strenuous physical exertion and i. lunch break, it filed on behalf of its
holiday work.
they are provided with adequate coffee members a complaint with the Labor
breaks in the morning and afternoon; arbiter for unfair labor practice, (a) Where an employee is made or permitted to
discrimination and evasion of liability. In work on his scheduled rest day, he shall be paid an
d. d. The value of the benefits derived by the
declaring the change in the work schedule additional compensation of at least thirty percent
employees from the proposed work
as valid, the Supreme Court held: (30%) of his regular wage. An employee shall be
arrangement is equal to or commensurate
entitled to such additional compensation for work
with the compensation due them for the j. “(The petitioner) rationalizes that
performed on Sunday only when it is his established
shortened meal period as well as the while the old work schedule included a 30-
rest day.
overtime pay for 30 minutes as determined minute paid lunch break, the employees
by the employees concerned; could be called upon to do jobs during that (b) When the nature of the work of the employee is
period as they were “on call” . such that he has no regular workdays and no
e. reduced, the same shall no longer be
regular rest days can be scheduled, he shall be paid
considered as meal time but merely as rest k. Even if dominated as lunch break, this
an additional compensation of at least thirty
period or coffee break and, therefore, period could very well be considered as
percent (30%) of his regular wage for work
becomes compensable working time. working time because factory employees
performed on Sundays and holidays.
were required to work if necessary and
f. e. Changing from 30-minute paid “on call”
were paid accordingly for working. With the (c) Work performed on any special holiday shall be
lunch break to 1 hour meal time without
new work schedule, the employees are now paid an additional compensation of at least thirty
pay, effect.
given a full one-hour undisturbed lunch percent (30%) of the regular wage of the employee.
g. The case of Sime Darby Pilipinas, Inc. v. break, the employees can freely and Where such holiday work falls on the employee’s
NLRC, [G.R. No. 119205, April 15, 1998, effectively use this hour not only for eating scheduled rest day, he shall be entitled to an
289 SCRA 86], but also for their rest and comfort which additional compensation of at least fifty per cent
are conducive to more efficiency and better (50%) of his regular wage.
h. is illustrative of this point. Prior to the performance in their
present controversy, all company factory (d) Where the collective bargaining agreement or
workers in the Marikina including members other applicable employment contract stipulates
of private respondent union worked from the payment of a higher premium pay than that
Article 88. Undertime not offset by overtime.
7:45 a.m. to 3:45 p.m. with a 30-minute prescribed under this Article, the employer shall
Undertime work on any particular day shall not be
paid “on call” lunch break. Petitioner, by pay such higher rate.
offset by overtime work on any other day.
way of memorandum, changed the meal
Permission given to the employee to go on leave on Article 94. Right to holiday pay.
(a) Every worker shall be paid his regular daily wage the Secretary of Labor and Employment or as which are directly related to the principal business
during regular holidays, except in retail and service stipulated in a collective bargaining agreement. of such employer. In such cases, the person or
establishments regularly employing less than ten intermediary shall be considered merely as an agent
Article 106. Contractor or subcontractor. Whenever
(10) workers; of the employer who shall be responsible to the
an employer enters into a contract with another
workers in the same manner and extent as if the
(b) The employer may require an employee to person for the performance of the former’s work,
latter were directly employed by him.
work on any holiday but such employee shall be the employees of the contractor and of the latter’s
paid a compensation equivalent to twice his regular subcontractor, if any, shall be paid in accordance Article 107. Indirect employer. The provisions of the
rate; and with the provisions of this Code. immediately preceding article shall likewise apply to
any person, partnership, association or corporation
(c) As used in this Article, "holiday" includes: New In the event that the contractor or subcontractor
which, not being an employer, contracts with an
Year’s Day, Maundy Thursday, Good Friday, the fails to pay the wages of his employees in
independent contractor for the performance of any
ninth of April, the first of May, the twelfth of June, accordance with this Code, the employer shall be
work, task, job or project.
the fourth of July, the thirtieth of November, the jointly and severally liable with his contractor or
twenty-fifth and thirtieth of December and the day subcontractor to such employees to the extent of Article 108. Posting of bond. An employer or
designated by law for holding a general election. the work performed under the contract, in the indirect employer may require the contractor or
same manner and extent that he is liable to subcontractor to furnish a bond equal to the cost of
Article 96. Service charges. All service charges
employees directly employed by him. labor under contract, on condition that the bond
collected by hotels, restaurants and similar
will answer for the wages due the employees
establishments shall be distributed at the rate of The Secretary of Labor and Employment may, by
should the contractor or subcontractor, as the case
eighty-five percent (85%) for all covered employees appropriate regulations, restrict or prohibit the
may be, fail to pay the same.
and fifteen percent (15%) for management. The contracting-out of labor to protect the rights of
share of the employees shall be equally distributed workers established under this Code. In so Article 109. Solidary liability. The provisions of
among them. In case the service charge is prohibiting or restricting, he may make appropriate existing laws to the contrary notwithstanding, every
abolished, the share of the covered employees shall distinctions between labor-only contracting and job employer or indirect employer shall be held
be considered integrated in their wages. contracting as well as differentiations within these responsible with his contractor or subcontractor for
types of contracting and determine who among the any violation of any provision of this Code. For
Article 102. Forms of payment. No employer shall
parties involved shall be considered the employer purposes of determining the extent of their civil
pay the wages of an employee by means of
for purposes of this Code, to prevent any violation liability under this Chapter, they shall be considered
promissory notes, vouchers, coupons, tokens,
or circumvention of any provision of this Code. as direct employers.
tickets, chits, or any object other than legal tender,
even when expressly requested by the employee. There is "labor-only" contracting where the person Article 111. Attorney’s fees.
supplying workers to an employer does not have
Payment of wages by check or money order shall be (a) In cases of unlawful withholding of wages, the
substantial capital or investment in the form of
allowed when such manner of payment is culpable party may be assessed attorney’s fees
tools, equipment, machineries, work premises,
customary on the date of effectivity of this Code, or equivalent to ten percent of the amount of wages
among others, and the workers recruited and
is necessary because of special circumstances as recovered.
placed by such person are performing activities
specified in appropriate regulations to be issued by
(b) It shall be unlawful for any person to demand or … Any such sum not paid to the employee or (b) Favoring a male employee over a female
accept, in any judicial or administrative proceedings househelper because he cannot be located after employee with respect to promotion, training
for the recovery of wages, attorney’s fees which diligent and reasonable effort to locate him within a opportunities, study and scholarship grants solely
exceed ten percent of the amount of wages period of three (3) years, shall be held as a special on account of their sexes.
recovered. fund of the Department of Labor and Employment
Article 134. It shall be unlawful for an employer to
to be used exclusively for the amelioration and
require as a condition of employment or
benefit of workers.
continuation of employment that a woman
Article 129. Recovery of wages, simple money
Any decision or resolution of the Regional Director employee shall not get married, or to stipulate
claims and other benefits. Upon complaint of any
or hearing officer pursuant to this provision may be expressly or tacitly that upon getting married, a
interested party, the Regional Director of the
appealed on the same grounds provided in Article woman employee shall be deemed resigned or
Department of Labor and Employment or any of the
223 of this Code, within five (5) calendar days from separated, or to actually dismiss, discharge,
duly authorized hearing officers of the Department
receipt of a copy of said decision or resolution, to discriminate or otherwise prejudice a woman
is empowered, through summary proceeding and
the National Labor Relations Commission which employee merely by reason of her marriage.
after due notice, to hear and decide any matter
shall resolve the appeal within ten (10) calendar
involving the recovery of wages and other
days from the submission of the last pleading
monetary claims and benefits, including legal
required or allowed under its rules. Article 137. Minimum Employable Age
interest, owing to an employee or person employed
in domestic or household service or househelper The Secretary of Labor and Employment or his duly (a) No child below fifteen (15) years of age shall be
under this Code, arising from employer-employee authorized representative may supervise the employed, except when he works directly under the
relations:… … Provided, That such complaint does payment of unpaid wages and other monetary sole responsibility of his parents or guardian, and
not include a claim for reinstatement: Provided claims and benefits, including legal interest, found his employment does not in any way interfere with
further, That the aggregate money claims of each owing to any employee or househelper under this his schooling.
employee or househelper does not exceed Five Code. (As amended by Section 2, Republic Act No.
thousand pesos (P5,000.00). 6715, March 21, 1989) (b) Any person between fifteen (15) and eighteen
(18) years of age may be employed for such number
The Regional Director or hearing officer shall decide Article 133. Discrimination prohibited. It shall be of hours and such periods of the day as determined
or resolve the complaint within thirty (30) calendar unlawful for any employer to discriminate against by the Secretary of Labor and Employment in
days from the date of the filing of the same. Any any woman employee with respect to terms and appropriate regulations.
sum thus recovered on behalf of any employee or conditions of employment solely on account of her
househelper pursuant to this Article shall be held in sex. (c) The foregoing provisions shall in no case allow
a special deposit account by, and shall be paid on the employment of a person below eighteen (18)
The following are acts of discrimination: years of age in an undertaking which is hazardous
order of, the Secretary of Labor and Employment or
the Regional Director directly to the employee or or deleterious in nature as determined by the
(a) Payment of a lesser compensation, including
househelper concerned… Secretary of Labor and Employment.
wage, salary or other form of remuneration and
fringe benefits, to a female employee as against a Article 138. Prohibition against child discrimination.
male employee, for work of equal value; and No employer shall discriminate against any person
in respect to terms and conditions of employment The law is a landmark piece of labor and social c. cook;
on account of his age. legislation that recognizes for the first time d. gardener;
domestic workers as similar to those in the formal e. laundry person;
Article 151. Regulation of industrial homeworkers. sector. It strengthens respect, protection, and f. working children or domestic workers 15 years
promotion of the rights and welfare of domestic and above but below 18 years of age; or
The employment of industrial homeworkers and workers or kasambahay. g. any person who regularly performs domestic
field personnel shall be regulated by the
work in one household on an occupational basis
government through the appropriate regulations P (live-out arrangement).
issued by the Secretary of Labor and Employment
to ensure the general welfare and protection of A
2.Who are not covered?
homeworkers and field personnel and the R
industries employing them.
T The following are not covered by the Batas Kasambahay:

1.What is Republic Act No. 10361? I a. service providers;


b. family drivers;
I c. children under foster family arrangement; and
Republic Act No. 10361 is an Act Instituting Policies . d. any other person who performs work
for the Protection and Welfare of Domestic Workers, occasionally or sporadically and not on an
otherwise known as ‘Domestic Workers Act’ or ‘Batas occupational and regular basis.
Kasambahay.’
T
3.Who are children under foster family
2.When was it signed into law? H arrangement?
E
It was signed by President Benigno S. Aquino III on 18 Children under foster family arrangement are those
January 2013. who are living with a family or household of
L relative/s and are provided access to education and
given an allowance incidental to education, i.e.,
3.When did the law become enforceable?
A “baon,” transportation, school projects, and school
activities; provided, that the foster family and foster
W care arrangements are in compliance with the
The law became enforceable on 04 June 2013 or procedures and requirements as prescribed by
fifteen (15) days after the publication of its 1. Who are the kasambahay covered by Republic Act No. 10165 or Foster Care Act of 2012.
Implementing Rules and Regulations (IRR) on 19 May the law?
2013 in The Philippine Star and the Manila Times.
All kasambahay engaged in domestic work, whether 4.What are the examples of persons performing
4.What is the significance of the passage of the on a live-in or live-out arrangement, such as, but not work occasionally or sporadically and not on an
law? limited to, the following: occupational basis?

a. general househelp;
b. yaya; a. A janitress doing irregular laundry work for a
household during rest day; 9. How can an employer hire a kasambahay?
b. A construction worker doing casual gardening
a. Medical certificate or health certificate issued by
job for a household; or
An employer can hire directly or through private a local government health officer;
c. A hospital nurse or a student doing baby-sitting
employment agencies (PEA) registered with the b. Barangay and police clearance;
job.
DOLE regional offices. c. NBI clearance; and
d. Duly authenticated birth certificate or, if not
5. What is the employable age for a available, voter’s identification card, baptismal
10. Who pays the cost of hiring a kasambahay?
kasambahay? record, or passport showing the kasambahay’s
age.
The employer, whether the kasambahay is hired
Fifteen (15) years old and above.
directly or through PEA, shall shoulder the
6. Under what conditions may the employment of 14.Is there an instance when the pre-employment
expenses for hiring.
requirements are mandatory?
children fifteen (15) but below eighteen (18)
years of age be made?
The kasambahay shall not be charged of any cost of
Yes, when the employment of the kasambahay is
the recruitment, placement, or finder’s fee. facilitated through a PEA.
a. They shall not be allowed to work for more
than eight (8) hours a day, and in no case
11. Who shall pay the deployment expenses or 15.Who pays for the cost of the pre-employment
beyond forty (40) hours a week;
cost of transportation of the documents?
b. They shall not be allowed to work between
ten o’clock in the evening and six o’clock in the kasambahay?
morning of the following day; The prospective employer or PEA shall pay for the
c. They shall not be allowed to do hazardous cost.
work; and The employer, whether the kasambahay is directly
d. They shall not be denied access to education hired or through PEA, shall pay the expenses that
and training. are directly used for the transfer of the 16. Is it a requirement for a kasambahay to be
kasambahay from place of origin to the place of trained and certified by TESDA prior to
7. Who is the employer of a kasambahay? work. employment?
12.When can an employer be reimbursed of the
deployment expenses?
An employer is any person who engages and No. However, the kasambahay is encouraged to
controls the services of a kasambahay and is party undergo competency assessment and be certified by
to the employment contract. When the kasambahay unreasonably leaves the TESDA. Training is not a requirement for
employer within six (6) months from the time competency assessment.
he/she started work.
8. Under the law, who are included in the
employer’s household to be provided direct 17. Is a contract necessary before entering into
service by the kasambahay? 13.Are there pre-employment requirements? an employment for domestic work?

Immediate family members or other occupants of Yes. The employer and the kasambahay shall enter
the house who are directly and regularly provided Yes. Before entering into an employment contract,
into a contract of employment written in a language
services by the kasambahay. the employer has the option to require the following
or dialect understood by them.
from a kasambahay:
18.Is the contract required to be notarized? these may be provided gratuitously. 27. Is the kasambahay entitled to daily rest period?

No, it is not necessary. The Punong Barangay or 22.What is the extent of the basic medical Yes. He/she is entitled to a total daily rest period of
his/her designated officer may attest to the assistance which the employer should provide to at least 8 hours.
contract and serve as witness to its execution. his/her kasambahay?
19.What are the other rights and privileges of the
kasambahay? 28. Can the employer require the kasambahay to
work beyond 16 hours at any given workday in
First-aid medicines (e.g. paracetamol, mefenamic acid, return for an equivalent hourly rate?
a. Freedom from employer’s interference in wage antiseptic, etc.) in case of illnesses and injuries No. The eight-hour rest period must be observed.
disposal; sustained during service.
b. Standard of treatment; 23.In what form and when will the wage of a
c. Board, lodging, and medical attendance; 36. Is the kasambahay entitled to a weekly
kasambahay be paid?
d. Right to privacy; rest period?
e. Access to outside communication;
f. Access to education and training; In cash, at least once a month.
Yes. He/she is entitled to at least 24 consecutive
g. Right to be provided a copy of the employment hours of rest in a week.
contract; 24.Can the employer pay the kasambahay in any
h. Right to Certificate of Employment; form other than cash?
i. Right to form, join, or assist labor organization; 37.Can the employer shorten the 24-hour rest day
j. Right to terminate employment based on just period of the kasambahay?
cause; and
No. Payment of wages by means of promissory
k. Right to exercise religious beliefs and cultural No. However, the kasambahay and the employer
note, voucher, coupon, token, ticket, chit, or
practices. may agree to shorten the rest day, provided the
anything other than the cash wage is prohibited.
employer pays for the hours worked during the
shortened rest day.
20. What are the basic necessities of the kasambahay?
25. Is the employer obliged to issue pay slip upon
payment of the salary of the
a. At least three (3) adequate meals a day, taking kasambahay? 38.Who determines the weekly rest period of the
into consideration the kasambahay?
kasambahay’s religious beliefs and cultural
practices; Yes. The employer shall at all times provide the
kasambahay with a copy of the pay slip every pay
day containing the amount paid and all deductions The employer and the kasambahay determine the
b. Humane sleeping condition; and
schedule of the weekly rest period.
c. Appropriate rest and basic medical assistance. made, if any.

43.When will a kasambahay be entitled to the


21. Is the employer required to provide the 26.How long should the employer keep copies of
13th month pay?
kasambahay with shampoo, soap, toothpaste, the pay slips?
etc.?
Three (3) years from issuance. After one (1) month of service.
Though not part of the “basic necessities” required
to be provided by the employer to the kasambahay,
44.How is the 13th month pay computed and
when is it paid?

In computing the 13th month pay, the total basic


wage received in a given calendar year shall be
divided by 12. The amount derived shall be paid
not later than December 24.

45.When will a kasambahay be covered by SSS,


PhilHealth, and Pag-IBIG?

After one (1) month of service.

46.Is the employer liable under the SSS,


PhilHealth, and Pag-IBIG laws in case the
kasambahay refuses membership with those agencies?

Membership under the SSS, PhilHealth, and Pag-IBIG


is mandatory and non- negotiable.

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