LABOR STANDARDS FINALS REVIEWER

By: Saki De Leon

Show shine boys (NO) Industrial Partner Test: 1. Contributes money, property, or industry for the business 2. Receives a share in the profits as a matter of course. 3. Actively participated in the management, administration and adoption of policies. Independent Contractor: 1. Distinct and independent business 2. Undertakes to perform the job/work/service on its OWN ACCOUNT and under its OWN RESPONSIBILITY 3. Has OWN MANNER and METHODOLOGY in the performance 4. FREE FROM CONTROL and direction of the principal 5. Only results are controlled Labor-Only Contracting: 1. Worker supplier does not have substantial CAPITAL or INVESTMENT in the form of a. Tools, equipment, machineries b. Work premises 2. Workers provided by worker supplier perform activities DIRECTLY RELATED to the PRINCIPAL BUSINESS of the employer.1 DEPENDENT and INTEGRAL STEPS for the principals business Aspects of the ESSENTIAL OPERATIONS of the principals business Note: Otherwise, it is JOB-ONLY contracting. Effect of labor-only contracting: a. Contractor is considered merely as an AGENT OF THE EMPLOYER b. Employer shall be COMPREHENSIVELY RESPONSIBLE to the workers as if he directly employed them. Purpose: to prevent a circumvention of labor laws. Permissible Job Contracting (Subcontracting), definition 1. There is an arrangement between principal and contractor/subcontractor 2. Performance or completion of a specific job/work/service 3. Within a definite or predetermined period 4. Regardless of whether such job/work/service is to be performed within or outside premises of the principal. Requisites for Legal Job-Contracting: 1. Contractor/subcontractor has DISTINCT and INDEPENDENT business 2. Runs the business under his OWN ACCOUNT/RESPONSIBILITY 3. Has his OWN METHODOLOGY, free from CONTROL of principal except for the results. 4. Substantial CAPITAL/INVESTMENT 5. Agreement between principal and subcontractor ASSURES contractual employees: a. Labor and occupational safety and health standards, b. Right to self-organization, c. Security of tenure, d. Social and welfare benefits.

CHAPTER I: LABOR STANDARDS

That branch of Labor Law that establishes the minimum terms and conditions of employment than an employer must provide to the workers. Considered written in every contract of employment, making them void without it. Presupposes employer-employee relationship at all times Purposes: 1. To alleviate the plight of workers regarding costs of living 2. To afford protection to workers against injustices 3. To ensure redress for violation of basic employee rights 4. To impose sanctions Four-Fold Test for Employer-Employee Relation 1. SELECTION and engagement of employees 2. Payment of WAGES 3. Power to DISMISS 4. Power to CONTROL employees conduct/RESTRICT methodology of work; except: a. Rules and guidelines that merely promote the result, and not the means Notes: Jeepney Operators-J.Drivers (YES) In a boundary system, it is that of an employer-employee relationship, not loan. This is not a chattel because owner doesnt lose complete control of the jeeps. They still exercise supervision and control. The owner holds the certificate of public convenience Jeepney drivers perform activities which are NECESSARY and DESIREABLE in the usual business of the operator/owner Gold Club Owners-Caddies (NONE) Matters of conduct, dress, language, etc. covered by the clubs general regulations DOES NOT so circumscribe the actions or judgement of the caddies concerned. They work for the club to which they attach themselves ON SUFFERENCE, without having to observe any working hours, free to leave anytime they please, to stay away for as long as they like. Training Hospital-Physician (NONE) It is only a continuation of their medical course. They are not required or mandated under any law to further undergo a residence training program. Educational Institution-Working Scholars (NONE) This is only in exchange for the privilege to study free of charge. Provided the students are given real opportunity, including such facilities as may be reasonable, necessary to finish their chosen courses under such arrangement. Handicraft workers on pakyaw system (YES) Musicians hired for background music of movies (YES) Tailors, pressers, and stitchers (YES) Insurance company vis-a-vis commission agents (NO) Company and collecting agents on commission basis (NO) Softdrinks and independent contractors/retailers (NO)

Atty. Abad: The deciding factor should be the LACK OF CONTROL of the principal in reference to the conduct of the workers (Control Test), not the CHARACTER OF THE ACTIVITIES being desirable to the principal.

Other considerations for Job-contracting: 1. Independence of the business 2. Nature and extent of the work 3. Skill required 4. Term and duration of the relationship 5. The right to assign the performance of specified pieces of work 6. The control and supervision of the workers 7. Power of employer with respect to the hiring, firing, and payment of workers of the contractor 8. Control of the premises 9. Duty to supply premises, tools, appliances, materials, and labor 10. Mode, manner and terms of payment LIMITED Responsibilities of Principal/Indirect Employee in Legitimate Job-Contracting: 1. Solidarily liability for MONEY CLAIMS of the contractors employees

Note: when employee defaults in a loan, employer guarantor cannot refuse payment of employees wages or benefits. This is also applicable when employee violated their memorandum of agreement, or failed to render an accounting of his employers property. Laborer/Blue Collars WAGES cannot be garnished/attached. White collars SALARIES can. Living Wage- one which is as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of national economic and social development program (Art. 124, Labor Code). Except: a. Persons in the personal service of another b. Homeworkers engaged in needlework c. Workers in cottage industries duly registered in accordance with law who work from their homes d. Workers in registered cooperatives (recommended by BCD and approved by Secretary of Labor) e. Farm Tenancy or leasehold. Equal Pay for Equal Work Principle requisites: 1. Substantial and equal qualifications, skills, effort and responsibility 2. Similar conditions Management Prerogative* in all PHASES OF EMPLOYMENT: 1. Hiring, transfer and lay-offs 2. Work assignments and working methods 3. Time, place and manner of work 4. Supervision and working regulations 5. Discipline, dismissal, and recall of work *must be in done in good faith and not oppressive to rights of workers. It is also limited by: law, CBAs, and general principles of fair play and justice.

CHAPTER II: WAGES

A. WAGES
Wages, definition 1. REMUNERATION or EARNINGS, however designated 2. Capable of being expressed in TERMS OF MONEY 3. Whether fixed or ascertained on A TIME/TASK/PIECE or COMMISSION basis (or other method of calculation) 4. PAYABLE by an employer to an employee 5. Under a written or unwritten CONTRACT OF EMPLOYMENT 6. For WORK done/to be done, SERVICE rendered/to be rendered Wages also include all benefits covered by CBA: 1. Severance pay 2. Educational allowance 3. Accrued vacation leave earned but not enjoyed 4. Workmens compensation awards 5. Unpaid salaries for services rendered Basic salary computation does not include: 1. Sick, vacation and maternity leaves 2. Night differentials 3. Regular holiday pay 4. Premiums for work done on rest days and special holidays Facilities- includes articles or services for the benefit of the employee or his family. Requisites to deduct facilities from wages: 1. Proof of customary furnishing by the trade 2. Voluntary acceptance IN WRITING by the employee 3. Fair and reasonable value of the facilities *Acceptance of deduction of WAGES by employees to point below minimum wage illegal, but deduction of certain FACILITIES allowed. *Food or snacks or other convenience provided by the employers are deemed as SUPPLEMENTS (not facilities) if they are granted for the convenience of the employer. - Criterion in making distinction is the purpose, not kind.

B. MINIMUM WAGE RATES

Regional Tripartite Wages and Productivity Boards(RTWPB) prescribe wage rates DOLE shall regulate fair and reasonable payment of wages by results (including pakyao/piecework) through time and motion studies or through consultation with stakeholders. Based on not more than 8-hour work days. Sub-minimum wages allowed by authority of DOLE for enterprises and institutions purposely created to provide jobs in depressed areas. RA 6727 Wage Rationalization Act fixes statutory minimum wages applicable to sectors: 1. Non-agricultural 2. Agricultural plantation and non-plantation 3. Cottage/handicraft 4. Retail/service Exclusions: 1. Househelpers, family drivers, those in personal service of another 2. Those in retail/service establishments regularly employing NOT MORE THAN 10 3. Those from distressed establishments and determined by RTWPB a. Though distressed, employer cannot exempt himself from paying workers. Payment of minimum wage is not dependent on the employers ability to pay. 4. Those of registered barangay Micro Business Enterprises

Note:

Employers are not obliged to apply wage orders across the board. Wage orders only apply to those stated thereto. Provisions of the CBA should be read in harmony with the wage orders.

Voluntary Employer Practice to be Non-Withdrawable: 1. Practiced over a long period of Time 2. Consistency and deliberateness Wage Distortion: 1. Existing HIERARCHY OF POSITIONS with corresponding salary rates. 2. Significant CHANGE IN THE SALARY RATE of lower pay class without a concomitant increase in the salary rate of a higher one. 3. Causes NO DISTINCTION between the two levels 4. The existence of the distortion in the SAME REGION or country.

Labor claims for companies under RECEIVERSHIP will suspend this right to enable the management committee or rehabilitation receiver to effectively exercise its powers to rescue the business. Attorneys Fees in Labor Cases: 10% only in cases of unlawful withholding of wages. CBA negotiation fees charged as Union Fees In quantum meriut: a. Amount and character of the services rendered b. The labor, time and trouble involved c. The nature and importance of the activity in which the services were rendered d. Responsibility imposed e. Results secured Note: Non-lawyers cannot collect attorneys fees, BUT they can collect UNION SERVICE FEES, if they represent themselves, the Union, or its members.

C. PAYMENT OF WAGES
FORM of Payment: LEGAL TENDER, even when expressly requested by the employee. Allowable only when: a. Customary b. Necessary because of special circumstances c. CBA stipulation d. DOLE approved, provided: i. Bank is 1km away from workplace (if more, provide shuttle) ii. No pecuniary benefit for the employer/agents iii. Reasonable time during banking hours iv. Written consent of employees TIME of Payment: Once every TWO WEEKS/TWICE A MONTH at intervals not exceeding 16 DAYS. Exceptions: force majeure/beyond employers control. PLACE of Payment: PLACE OF UNDERTAKING, except if DOLE provides otherwise: a. Deterioration of peace b. Natural calamity or emergency c. Free transportation from employer d. Others as long as time spent by employees is compensable hours worked e. Not in a bar, night club, drinking establishment, massage clinic, dance hall, etc. RECEIPT of Payment: Directly to WORKERS to whom they are due, except: a. Force majeure/special circumstances- person authorized in writing b. Worker dies- heirs without needing intestate proceedings. Corollary right of employer in paying wages: to expect from the workers ADEQUATE WORK, DILIGENCE, GOOD CONDUCT. NO WORK NO PAY Unless, labourer was able, willing, and ready to work but was illegally locked out, suspended or dismissed or otherwise ILLEGALY PREVENTED from working. Off days not paid days Worker preference in case of bankruptcy: Though preferred, this preference of credit does not create a charge upon any particular property of the debtor.

D. PROHIBITIONS REGARDING WAGES

Non-interference in disposal of wages Employer cannot force, oblige, and compel employees to purchase anything from anyone. Wage Deduction- generally illegal, except: 1. Automatic reduction of employers insurance of employee with latters consent 2. Union dues where right to check-off regocnized by employer or authorized in writing by employee 3. Other instances DOLE allows employer Requiring work-related deposits allowed only when customary, necessary, or desirable as determined by DOLE. Worker should be responsible for loss/damage Employee given due process Fair and reasonable deduction Does not exceed 20% of wages in a WEEK. Withholding of wages/kickbacks is illegal when done through force, stealth, intimidation, threat, or any others means without workers consent. Deductions to ensure employment illegal as against public policy. Withholding wages because employee filed case/complaint illegal Law silent about debts owed by employee to employer, but try to apply GR (20%) Stock subscriptions cannot be deducted automatically Allowable Deductions without Need of Employees Consent: 1. Taxes 2. SSS contributions 3. Philhealth 4. Pag-IBIG 5. Agency and Union service fees 6. Debts due to the employer by employee (NCC 1706)

CHAPTER III: WORKING CONDITIONS AND REST PERIODS

A. HOURS OF WORK
Coverage: EVERYONE, except: 1. Government employees 2. Managerial employees- compensation determined not by the hour, but skill a. Management of establishment b. Customarily and regularly direct at least 2 employees work c. Authority to hire/fire, or to make recommendations 3. Managerial Staffa. Work directly related to management policies of employer b. Exercise discretion and independent judgement c. Assists owner or managerial employee d. Execute highly specialized or technical work (under supervision) e. Execute special assignments and tasks f. Do not devote more than 20% work week of the work listed above g. (Supervisors and foremen included) 4. Field personnel a. Perform work away from the place of business of the employer b. Actual working hours cannot be reasonably determined 5. Family members of employers who are dependent on him for support 6. Domestic helpers and persons in personal service of another a. In employers home usually necessary and desirable for the maintenance and enjoyment. b. Minister to personal comfort, convenience, or safety of employer 7. Workers paid by results (pakiyao, takay, piece-work) WORKDAY= 8 hours/day+6days/week (48-hour work week), except 1. Health personnel in cities/m.cities with at least 1M population or in hospitals with at least 100 bed capacity = 8hrs/day+5days/week. a. Resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants, and all other hospital/clinic personnel. HOURS WORKED 1. All time when employee is required to be on duty or to be at workplace. 2. All time when employee is suffered or permitted to work. a. b. c. Rest periods less than an hour during working hours is compensable. Rest periods must allow employee to do whatever he wants by leaving the premises or staying. Meal period= not less than 60 minutes, except: i. work is non-manual work in nature/non-strenuous ii. when establishment 16 hours up iii. impending emergencies or urgent work iv. prevent serious loss of perishable goods Coffee breaks from 5 to 20 minutes compensable

Overtime pay CANNOT BE WAIVED, either expressly/impliedly or by stipulation, except: i. BUILT-IN overtime pay (approved by Bureau of Employment Services) due to certain benefits and privileges at least equal to overtime pay. ii. COMPRESSED WORK WEEK on voluntary basis subject to: a. Express and voluntary agreement of majority of employees b. Chemical firms with OSHS recommendation c. Notify DOLE d. Not >12hrs. A day, and 48hrs a week e. Meal periods intact and leave/rest/holidays maintained f. No diminution of benefits Undertime not offset by overtime Ratio for overtime: he puts more effort, delay in going home, no time for relaxation, miss important engagements. Must first be approved by the manager/employer if Sunday/holiday Proved through presentation of payrolls, daily time records, and similar documents (except for OFWs) EMERGENCY AND COMPULSARY OVERTIME WORK can be required when: 1. WARTIME or any other LOCAL EMERGENCY has been declared by Congress of the President. 2. When necessary to PREVENT LOSS OF LIFE or PROPERTY due to imminent danger to public safety, or actual impending emergency/calamity. 3. Urgent work to be performed on MACHINES, INSTALLATIONS, or EQUIPMENT in order to avoid serious loss or damage to employer. 4. To prevent loss or damage to PERISHABLE GOODS 5. To prevent SERIOUS OBSTRUCTION or PREJUDICE to the business or operations. Note: computation of additional compensation should be based only on the REGULAR WAGE of an employee, without deductions on facilities (Fringe benefits). a. Whether or not the additional pay for EXTRA WORK DONE or service rendered b. Whether or not the same in intended to be PERMANENT or REGULAR, not CONTINGENT and TEMPORARY. Waiting Time is Time worked when: (Absolute Employer Control) 1. Waiting is an integral part of his work 2. Employee is required or engaged by the employer to wait. 3. On call as long as in the workplace, not the home. Idle Time is not compensable when: 1. Work is broken 2. Work not continuous Work Interruption due to Brownouts: 1. <20mins=compensable, w/n productive 2. >20mins=not compensable IF a. Employees can leave work b. Employees can use their time for their own interest Notes: If employer extends workday because of brownout, no overtime pay. Only actual overtime service rendered is compensable in a vessel. Commuting time NOT COMPENSABLE unless such time can be made productive under employer SUPERVISION/CONTROL. Travel Time Compensable, when: 1. Within regular days and administrative work week/hours

d.

Night shift differential= not less than 10% of his regular wage for every hour between 10pm to 6am. Based on public policy, therefore CANNOT BE WAIVED! OVERTIME WORK, must be in excess of the initial 8 hour prescribed a. 25% more of his regular wage per hour. b. 30% more of holiday pay if done in holiday or rest day.

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Outside regular days/administrative work week/hours IF ordered/approved and: a. Involved work while travelling (loaded truck) b. Incident to travel that involves the performance of work while travelling (unloaded truck) c. Under arduous and unusual conditions (severe weather/roadless route) d. Unscheduled but obligatory events (court hearings)

Overtime Regular Holiday pay and Rest day= 130%[200%(Minimum wage)] 130% 8 E.O. 203, as amended by RA 9177, Regular Holidays are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. New Years Day January 1 Maundy Thursday Good Friday Araw ng Kagitingan April 9 Labor Day May 1 Independence Day June 12 National Heroes Day Last Sunday of August Eidl Fitr* Bonifacio Day November 30 Christmas Day December 25 Rizal Day December 30

B.WEEKLY REST PERIODS

24 CONSECUTIVE HOURS after a 6 normal work days. It is a management prerogative subject to CBA or employee preference if for religious reasons (made known 7 days before effectivity), otherwise he is entitled only to 2 rest days a month if cannot be compromised. To afford the worker a chance to get much needed rest, to replenish his worn-out energies, to acquire a new vitality, to enable him to effectively do his duties. Failure to do compulsory work on rest days does not justify outright dismissal! Compulsory Work on Rest Days allowed, when: 1. Actual or impending emergencies to prevent loss of life/property 2. Urgent work to be performed 3. Abnormal pressure of work due to special circumstances 4. Prevent loss or damage to perishable goods 5. Nature of work requires continuous operation 6. Others circumstances Scheduled Rest Day Work*= No Regular Rest day*= Special Holiday Work*= +30% of his regular wage +30% for work on Sundays and holidays. +30% of the regular wage, 50% if holiday is rest day.

*Applicable to non-Muslims too. Divisors when Holiday pay is included in Monthly pay: (Producers Bank vs. NLRC) 1. 6-day working schedule: 314 = holiday pay already included 2. 5-day working schedule: 261 = holiday pay already included
Note: Employees uniformly paid by the month, IRRESPECTIVE of the number of working days therein, shall be presumed to be paid fo all the days in the month whether worked or not.

Notes: Holiday pay is a demandable statutory benefit. Holidays that fall on the same day should both be paid because worker is entitled to 11 regular holidays total. Teachers paid by the hour not entitled to regular holiday pay because those are also no class days, preventing them from working even on holidays. But they are entitled to Special Holiday pay or due to cancellation or extension of classes (rallies, flood, typhoon, etc).

*if CBA provides for HIGHER, that will be followed.

C.HOLIDAYS
Holiday Pay= 100% of employees basic wage (plus ECOLA) even if employee did not report for work, provided that on the work day immediately preceding the holiday: a. Employee is present b. Employee is on leave of absence with pay. Purpose: Constitutional imperative for protection of labor To prevent dimunition of monthly income (though forced to rest, he still earns) To allow worker to participate in national celebrations Scope: All employees, except: 1. Government/GovCorp employees 2. Retail and service establishments regularly employing <10 3. Domestic helpers and those in personal service of another 4. Managerial employees 5. Field Personnel Monthly pay Formula: (Minimum wage)(365)/12 Regular Holiday pay= 200%(Minimum wage) Regular Holiday pay and Rest Day= 130%[200%(Minimum wage)] Overtime Regular Holiday pay (hourly)= 200%(Minimum wage) 130% 8

D. SERVICE INCENTIVE LEAVES

Service Incentive Leave- 5 leaves with pay AFTER at least 1 YEAR (12 months), whether continuous or broken, of service (including authorized absences and paid regular holidays), except; When the working days in the establishment or under the contract is less than 12 months, in which case said period shall be considered 1 year. Purpose: motivation for employee to stay longer Start: Dec. 16, 1975 Effect if unused: commutable to money equivalent at the end of the year, or the accrued benefits after resignation/separation. Scope: 1. 2. 3. 4. 5. 6. All employees, except: Government/GovCorp employees Establishments regularly employing <10 Domestic helpers and those in personal service of another Managerial employees Field Personnel, contract/commission basis Those already enjoying the benefit a. Vacation leave of at least 5 days (though waiveable) Companies cannot unilaterally withdraw privilege of commutation or conversion to cash of these benefits without violating the right to non-diminution of benefits.

7.

Those enjoying vacation leave with pay for at least 5 days

j.

Family member assuming head role because of death, abandonment, disappearance, or prolonged absence of parents for at least 1 year.

Actually paying employees above minimum wage is not equivalent to this. Other Leaves: 1. Vacation Leave 2. Sick Leave 3. Maternity Leave (RA7322) 100% of her present basic salary, allowances, and other benefits or the cash equivalent for 60 DAYS (78 for caesarean), subject to the following: Notified employer of pregnancy and due date, transmitted to SSS. Payment advanced by employer in 2 equal instalments within 30 days from filing of maternity leave application. Bar to recovery of sickness benefits of this Act (60 days compensable) for the same childbirth/abortion/miscarriage. Only for 4 deliveries. SSS 100% reimbursement after shown proof In violation of remittance of proof to SSS, employer is liable. Requisites: a. Female employee b. Currently employed c. She paid at least 3 monthly MATERNITY CONTRIBUTIONS... d. Within the 12-month period before the semester of childbirth/abortion/miscarriage 4. Paternity Leave (RA 8187)= 7 days leave with FULL PAY of BASIC SALARY 4 deliveries maximum NOT CONVERTIBLE TO CASH if not availed of. Application within a reasonable amount of time based on CBA or company rules/regulations. Application not required for miscarriage. May be availed of before, during, after the delivery. Requisites: a. Male employee at the TIME OF DELIVERY b. COHABITING with his SPOUSE at the time of birth/miscarriage c. Birth or miscarriage (no mention of abortion...)\ 5. Parental Leave (Solo Parents Welfare Act) Leave benefits granted to a solo parent to enable him/her to perform parental duties where physical presence is required. NOT CONVERTIBLE TO CASH, unless agreed upon. Terminated after change of status. Solo Parent any unmarried mother or father who has preferred to keep and rear his/her child/children instead of having other care for them or give them up to a welfare institution. Solo parenthood due to: a. Rape or other crimes against chastity b. Death of spouse c. Spouse is detained or serving sentence for at least 1 year d. Physical/mental incapacity of spouse (certified by public medical practitioner) e. Legal/De Facto separation for at least 1 year + child custody f. Declaration of nullity or annulment + child custody g. Abandonment of spouse for at least 1 year h. Unmarried father/mother with children to support i. DSWD licensed foster parent, or legal guardian

Child a person, under 18 (or over 18 but cannot support self because of mental incapacity/physically challnged), unmarried/unemployed/ LIVING WITH and DEPENDENT on the solo parent for support. Protection of childrens rights in the cognizance of the fact that a solo parent who is deprived of a course of livelihood would be more economically vulnerable and less able to support a child. Requisites: a. At least 1 year of service (whether continuous or broken) b. Notification of employer of the availments c. Solo parent identification card obtained from DSWD Comprehensive package of social development and welfare services include: Training on livelihood skill and job placement Counselling services Educational benefits Housing benefits Medical assistance Relevant provisions: 7 working days leave privilege Flexible work schedule Prohibition against discrimination on account of her status Law and jurisprudence are silent on what a discriminatory act is. 6. Leave for victims of Violence against Women and their Children (RA 6262) Purpose: so woman could attend to medical/legal matters. Benefit: 10 extendable days full pay (salary and mandatory allowances) Requisites: a. An act or series of acts b. Committed by any person c. against a woman who is wife, former wife, or any woman with whom the person has or had a sexual or dating relationship, or with whom he has had a common child (legitimate or illegitimate) d. within or without the family abode e. Likely to or resulting to physical, sexual, psychological harm/suffering, or economic abuse f. Including threat of such acts, battery, assault, coercion, harassment or arbitrary depravation of liberty. g. Certification from Punong Barangay, Barangay Kagawad, Prosecutor, or Clerk of Court that an action is pending regarding the abuse. Military Leave (PD 183) Requisites: a. Private, commercial, industrial, agricultural employee b. Firm with annual gross volume of business > 250,000.00 c. Firm with at least 20 employees d. Employee called to undergo refresher training, mobilization, assembly test, or annual active duty training in the AFP Firm is reimbursed through income tax return deductions No loss of seniority if he indicates to resume his work not later than 1 MONTH FROM RELIEF from duty.

7.

CHAPTER IV: 13TH MONTH PAY CHAPTER V: WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES
A. EMPLOYMENT OF WOMEN
Relevant Constitutional Provisions: Article II, 14 Role of women in nation-building; commands State to ensure equality Article XIII, 3 Full protection to labor Promote full employment Equality of employment opportunities Security of tenure Article XIII, 14 Opportunities for women to reach full potential Labor Code Provisions: Articles 130-138

FAMILY PLANNING Services/Incentives Who: Establishments required to maintain clinic/infirmary Employers who habitually employ more than 200 (implementing rules) What: Provide free family planning services To Who: Their employees How: Application or use of contraceptive pills and intra-uterine devices. Further: DOLE shall develop and prescribe INCENTIVE BONUS SCHEMES Why: To encourage family planning among female workers Where: In any establishment/enterprise DISCRIMINATION of Women Unlawful to discriminate, with respect to terms and conditions of work, SOLELY on account of her sex. Prohibited acts: Payment of lesser compensation for equal work Favoring a male employee with respect to PROMOTION, TRAINING OPPORTUNITIES, STUDY AND SCHOLARSHIP GRANTS SOLEY on account of her sex. Stipulations against Marriage, Employer cannot require woman: a. Not get married as condition of employment b. Deemed resigned or separated upon marriage c. Dismiss, discharge, discriminate or otherwise prejudice MERELY by reason of marriage Other Prohibited Acts: Deny women of the benefits of this Chapter Discharging any woman to prevent benefits of this Chapter Discharge woman due to her pregnancy, or while on leave because of pregnancy Discharge/refuse admission of woman out of fear of becoming pregnant again Special Women Classification for purposes of Labor and Social Legislation, requisites: 1. Working women 2. With or without compensation 3. Nightclub, cocktail lounge, massage clinic, bar or similar establishments 4. Effective control of the employer 5. Substantial period of time as determined by SecLab Note: These standards should not prevent employers from agreeing to more favourable terms in CBAs, and should not diminish what CBAs already say prior to effectivity of these rules.

Sex-plus discriminationjob requirements, which establish employer preference, or conditions relating to marital status when imposed only on one sex. Nightwork Prohibition: 1. Industrial undertaking 2. Commercial or non-industrial undertaking 3. Agricultural 10pm-6am 12mn-6am Night-time, except if consecutive 9hr-rest period

Exceptions: a. Actual/impeding emergencies to prevent loss of life/property, or for public safety b. Urgent work to be performed on machineries/equipment/installation to avoid serious loss c. Serious loss on perishable goods d. Woman hols responsible position of managerial/technical nature/health or welfare services e. Work requires manual skill and dexterity of women workers f. Immediate members of the family g. Other analogous cases FACILITIES for Women (Sec. of Labor standards) 1. Seats proper for women (used even during work w/o detriment to efficiency) 2. Separate toilet rooms and lavatories (or at least a dressing room) 3. Nursery 4. Appropriate min. age and other retirement/termination standards in special occupations. MATERNITY LEAVE Benefits Requisites: 1. At least 6months out of 12months aggregate service 2. Medical certificate required by employer 2 weeks before delivery date 3. Maternity leave of at least 2 weeks before expected delivery date a. Failure to avail of all or part of this will be credited to POSTDELIVERY leave 4. Maternity leave of at least 4 weeks after normal delivery/abortion 5. Full pay based on her regular or average weekly wages. 6. Extension without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, miscarriage, which renders woman unfit for work. a. But if she has unused leave credits, such extended leave will be charged. 7. Applicable only to first 4 deliveries

B. EMPLOYMENT OF MINORS
Superseded by 12, Art.VIII of RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) as amended by RA 7658. Later on by RA 9231 to include 15, 16, 17yrs old. Child- person below 18 years of age. MINIMUM AGE for Employment: 18YRS OLD, EXCEPT: 1. Below 15yrs old= Works directly under sole responsibility of his parent/guardian, and no school disruption. Not more than 20hrs/wk, 4hrs/day. Between 6am to 8pm only. 2. Between15-18yrs old= but limited hours, determined by SecLab. Not more than 40hrs/wk, 8hrs/day. 6am to 10pm only. 3. Below 18= not hazardous or deleterious in nature.

Employment in Public Entertainment Cinema, theather, radio, television, other forms of media, allowed. Requisites: 1. Employment contract concluded by childs parents/guardian 2. Express agreement of child concerned 3. Approval of DOLE by issuing work permit to employer 4. Employer responsibilities: Employer ensures protection, safety, health, morals, and normal development Employer prevent childs exploitation or discrimination in system of remuneration, and duration/arrangement of working time. Employer implement/formulate continuing program for training/skills acquisition of child. Prohibited Worst Forms of Child Labor 1. All forms of SLAVERY (Anti-Trafficking in Persons Act of 2003) 2. Prostitution, production of pornography, pornographic performances 3. Illegal activities (e.g. distribution of dangerous drugs) 4. Hazardous and harmful to health, safety, or morals: a. Derogatory to dignity b. Physical, emotional, sexual abuse c. Highly stressful psychologically and prejudicial to morals d. Underground, underwater, dangerous heights e. Dangerous machinery f. Physical danger (balancing, physical strength or contortion, heavy loads) g. Hazardous environment/working conditions, elements, substances h. Particularly difficult conditions i. Exposure to biological agents j. Explosives and pyrotechnics Prohibited Advertisements: Alcoholic beverages Intoxicating drinks Tobacco and its by-products Gambling Violence or pornography

Employer must also provide, free of charge, suitable and sanitary living quarters, adequate food, and medical assistance (subject to the rule of necessity) VACATION LEAVE: 4 days a month, but waived when not demanded at its opportune time. Not convertible to cash. Indemnity for Unjust Termination prior to Expiry of Contract: 1. Employer terminates: all earned wages, plus additional 15 days worth. 2. Helper leaves: forfeit any unpaid salary worth at least 15 days. Service Termination Notice: 5 days before intended termination Employment Certification: Employer must give, upon demand, a WRITTEN statement of the nature and duration of the service, and his/her efficiency and conduct. NOTES: Children of household help not considered household help if not required to work. Funeral expenses- Employer shall bear funeral expenses COMMENSURATE to the standards of life of the deceased. Not household help if working in the staff houses of a company. Assistant of monk who performs work essential and desirable to daily temple visitors considered a regular employee.

D. EMPLOYMENT OF HOMEWORKERS E. APPRENTICES

Purpose: To help meet the demand of economy for trained manpower To establish a national apprenticeship program To establish apprenticeship standards for apprentice protection Apprenticeship- practical training on the job supplemented by related theoretical instruction. Apprentice- is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized. Apprenticeable occupation- any trade, form of employment or occupation which requires more than 3 MONTHS of PRACTICAL TRAINING on the job supplemented by related theoretical instruction. Only employers in highly technical industries and occupations approved by DOLE are allowed. Qualifications: 1. At least 15yrs. Old. If between 15 to 18, non-hazardous work. 2. Vocational aptitude and capacity for appropriate tests 3. Physically fit for occupation 4. Ability to comprehend and follow oral and written instructions 5. Educational requirement per industry (standardized by DOLE) 6. Prior approval by DOLE Parameters: Not more than 6 month, but not less than 3months. At least 75% of minimum wage. Occupation must be approved by DOLE for apprenticeship Contract signed by employer and by the apprentice (if minor, by parent/guardian) Aptitude test from employer, but if not available by DOLE free of charge. There must be theoretical instruction with the ratio of 1hr instruction: 20hrs work. TERMINATION: 5 days written notice before termination with reasons. Issue CERTIFICATE OF COMPLETION after.

C. EMPLOYMENT OF HOUSEHELPERS
*Read in conjunction with Articles 1689 and 1699 of NCC Household Service. Domestic/Household Service: 1. Male/female 2. Service in the employers HOME 3. Usually NECESSARY or DESIRABLE for the maintenance and enjoyment thereof 4. Ministering to PERSONAL COMFORT and CONVENIENCE 5. For the MEMBERS of the employers household (including family drivers) Domestic Service Contract Duration: Not more than 2 years, but renewable. Opportunity for Education: Below 18 years of age, at least elementary education. Part of compensation, unless stipulation to contrary. Treatment: Just and humane manner. No Physical violence whatsoever. Minimum wage for Domestic Service: (Basic cash wage. No food, lodging, medical assistance) Metro Manila: 800pesos/month Chartered Cities and Municipalities: 650pesos/month Other Municipalities: 550pesos/month Provided that, employer will review contract every 3 years to make improvements Provided further, those receiving at least 1000pesos are entitled to SSS.

Apprenticeship Period: 1. Occupations which require at least 1 year for proficiency= 400hours or 2 months 2. Occupations which require <1 year, but >3monthsfor proficiency= 200 hours or 1 month Venue: 1. 2. 3. Within sponsoring firm, establishment or entity DOLE training center or other public training institutions a. National Manpower and Youth Council b. DepEd centers Training Centers for trade fundamentals, then subsequent actual work participation within the sponsoring firm for the final stage.

3. 4. 5.

Theft or malicious destruction of company property Poor efficiency on the job despite warnings Violence or gross misconduct

By the apprentice: 1. Substandard working conditions 2. Repeated violation of agreement by employer 3. Cruel or inhuman treatment 4. Personal problems which affect work 5. Bad health Duties of Apprenticeship Committee: 1. Liaison between the apprentice and employers 2. Mediate and settle first instance differences arising from the agreement. 3. Follow-up on the technical progress of the program 4. Recommend certificates of completion

Sources of Apprenticeship Programs: 1. Voluntary undertaking by employers 2. Compulsary training required by President of the Phils. For certain trads, occupations, jobs where there is a critical shortage (as determined by SecLab). 3. When private companies utilize foreign technicians, these private companies are required to train locally through setting up apprenticeship programs. Deduction of Training Costs (Benefit for the Company) of labor training expenses deducted from taxable income. Requisites: a. Such program is duly recognized by DOLE b. Deduction shall not exceed 10% of direct labor wage c. If wished to avail upon this incentive, employer should pay full minimum wage. NOTES: DOLE may authorize apprenticeship without compensation for school requirements. Medical exam for apprentice-applicant free c/o DOH, if not available, employer provides. Employers can require apprentices to work for more than 8 hours if regular workers are not available. Previous training may be credited. Formulation of Model Apprenticeship Standards, factors a. Affecting employment of apprentices under different occupational conditions. b. Theoretical and proficiency tests c. Areas and duration of work and study covered by OJT d. Qualifications of trainers and apprentices. Content of Apprenticeship Agreement: 1. Full names and addresses of parties 2. Birthdate of apprentice 3. Name of trade/occupation and timeframe 4. Number of hours required and the theoretical instructions 5. Schedule 6. Graduated scale of wages 7. Probationary period, and grounds for termination 8. A transfer clause acknowledging transfer in case of failure of employer Valid Grounds for Termination of Agreement: By the employer: 1. Wilful disobedience of company rules, or insubordination to lawful order 2. Poor physical condition affecting work

F. LEARNERS G. HANDICAPPED WORKERS

Who are Handicapped workers? Those whose earning capacity is impaired by AGE, PHYSICAL or MENTAL DEFECIENCY, or INJURY. EMPLOYABLE when: a. Employment necessary to prevent curtailment of employment opportunities b. Does not create unfair competition in labor costs c. Does not impair or lower working standards Employment Agreement Contents: 1. Names and addresses of the handicapped workers 2. Rate to be paid (not lower than 75%) 3. Duration of employment period 4. Work to be performed (subject to SecLab approval) READ IN RELATION TO MAGNA CARTA OF DISABLED PERSONS (RA 7277)! QUALIFIED DISABLED PERSONS must be granted the same terms and conditions of employment, and same compensation as of qualified able-bodied persons. They should become regular employees and enjoy the same benefits. Their disabilities should not render them unqualified or unfit for the tasks assigned to them, which are USUALLY NECESSARY or DESIRABLE in the usual business or trade of the employer. At least one cumulative year for them to become regular employees.

CHAPTER IV: TERMINATION OF EMPLOYMENT

Scope: all establishments and undertakings (profit/non-profit) including educational, medical, charitable, and religious institutions and organizations. Government and political subdivisions, and government controlled corporations not included. Rules imposed by management should be exercised in GOOD FAITH for the ADVANCEMENT of employers interest, and not for the purpose of DEAFEATING rights of employees. SECURITY OF TENURE For Regular Employees only: Where the employee had been engaged to perform activities which are USUALLY NECESSARY or DESIREABLE in the usual business or trade of the employer, and those of which the ff concur: a. Employment fixed for a SPECIFIC PROJECT or UNDERTAKING b. The completion or termination of which has been DETERMINED c. At the TIME OF THE ENGAGEMENT of the employee d. Or, when the work is SEASONAL in nature Casual Employees- those that dont fit the above description, except: Rendered at least 1 year of continuous or broken service with respect to the activity in which he is employed and his employment shall continue while such activity exists. Probationary Employment- must not exceed 6 months from date of commencement. May be terminated by a JUST CAUSE or if he fails to qualify. Qualification standards must be made known at the beginning of work. After 6 months, he becomes a regular employee if allowed to work.

GROUNDS FOR TERMINATION BY EMPLOYER A. JUST CAUSES

1. FAILURE TO QUALIFY for probationary employees (which does not require twin notice) 2. Serious MISCONDUCT or willful DISOBEDIENCE to the lawful orders of his employer in connection with work. (WORK-RELATED INSUBORDINATION) Requisites for Willful Disobedience: a. Conduct is WILLFUL and INTENTIONAL b. Characterized by WRONGFUL and PERVERSE attitude (case-to-case) c. Order must be REASONABLE, LAWFUL, and MADE KNOWN to the employee d. WORK RELATED Unless shown to be grossly oppressive or contrary to law, company policies are generally BINDING and VALID and must be complied with until finally revised or amended. It is impermissible to reverse this because to suspend enforcement of the rules until their legality shall have been decided would lead to chaos. SERIOUS Misconductimproper or wrong conduct. Transgression of some established and definite rule of action, a FORBIDDEN act, DERELICTION of duty, willful in character and implies WRONG INTENT and not mere ERROR in judgement. Examples: sexual harassment, fighting in company premises, uttering obscene, insulting, or offensive words against superior, misrepresentation, falsification of time records, immorality (work-related). Sleeping on the job is not always a valid ground. Must be heavily work-related. 3. Gross and habitual NEGLIGENCE of duties Want or absence or failure to exercise SLIGHT CARE of diligence, or the ENTIRE absence of care. THOUGHTLESS DISREGARD of consequences. It must not only be GROSS, but also HABITUAL. Single/isolated acts of negligence not enough to dismiss. Absenteeism may be gross and habitual negligence. 4. FRAUD or willful BREACH OF TRUST It must be WILLFUL and WORK-RELATED. The cause must be stated in the notice of dismissal, because it must be based on proven facts. Employee should hold a position of trust and confidence. Willful breach- intentionally, knowingly, purposely without justifiable excuse. Cannot be based on the employers whims, caprices, or suspicion, otherwise the employee would eternally remain at the mercy of the employer. Not a mere afterthought. Managerial employees have looser rules. It would unjust an inequitable to compel an employer to continue with employment of a person who occupies a managerial and sensitive position despite loss of trust and confidence. Cannot be mitigated by length of service. Return of misappropriated funds not mitigating. Requisites: a. Not be SIMULATED b. Not be used as a SUBTERFUGE/TRICKERY for causes which are improper, illegal, or unjustified; c. May not be ARBITRARILY asserted d. Must be GENUINE, not a mere afterthought 5. Commission of a CRIME or OFFENSE against the employer or any immediate family member or that of his representatives.

TERMINATION: SUBSTANTIVE DUE PROCESS

Shall not terminate except for a JUST CAUSE or when AUTHORIZED by the Labor Code and subject to the requirement of DUE PROCESS. Otherwise, Consequences ILLEGAL DISMISSAL are: 1. Reinstatement without loss of seniority rights, and other privileges, or separation pay. a. Strained relationship rule which prevents reinstatement only applicable to employees whose position require trust and confidence, or whose differences with employer are of such nature/degree as to preclude reinstatement. 2. Full backwages inclusive of allowances a. Employer also liable to pay backwages for the period the Labor Arbiter gives favourable decision to employee and during the appeal of the employer (Abad) because Labor Arbiters decision is immediately executory. 3. Other benefits or their monetary equivalent 4. All computed from the time his compensation was withheld - Considered not having left his office so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held. - Backwages to be awarded should not be diminished or reduced by the earnings derived by him elsewhere during the period of illegal dismissal.

6. ABANDONMENT Must be DELIBERATE and UNJUSTIFIED refusal to resume employment CLEAR ABSENCE of intention to return/clear intention to sever the EE relationship. Filing a complaint for illegal dismissal negates employers theory of abandonment if the complaint asks for reinstatement. But if employer offers back work, but employee doesnt, suit will still prosper because the employee already has a strained relationship which prevents him from working right away until the issue is settled. No abandonment. The order of immediate reinstatement pending appeal is an ANCILLARY relief to cushion him and his family against the impact of economic dislocation or abrupt loss of earnings. If the employee chooses not to report for work pending appeal, he forgoes such a temporary relief and is not paid his salary during the appeal period. If due to misunderstanding, each will bear his own loss. No abandonment after Labor Arbiters decision of immediate reinstatement if the case is appealed to NLRC/CA. 7. Other ANALOGOUS causes B.

4. DISEASE prohibited by law or danger to self/co-employees (1month pay to month/year of service) Requisites: a. Continued employment prohibited by law, or detrimental to his health/co-workers b. Certification by a competent PUBLIC health authority c. Cannot be cured within 6 months NOTES: The purpose must not be to circumvent the provisions of LC. A fraction of at least 6 months is considered a year (separation pay). Termination with Just Cause doesnt entitle employee to separation pay. TOTALITY OF INFRACTIONS DOCTRINE- employee has repeatedly incurred several suspensions or warnings on account of violations of company rules, the law warrants their dismissal as akin to habitual delinquency. CLOSED SHOP STIPULATIONS legal. But dismissals must still be with DUE PROCESS OF LAW. The Union cannot impeach arbitrarily, otherwise employer still guilty of unfair labor practice. When there is no Termination: 1. Bona fide suspension of the operation of business not exceeding 6 MONTHS 2. Fullfillment by the employee of a military of civic duty He must be reinstated after he expresses his desire to return within 1 month from resumption of operations or relief from military/civic service. Constructive Dismissal- quitting because continued employment is rendered impossible, unreasonably or unlikely, as an offer involving demotion in rank and diminution of pay. Also when there is an act of clear discrimination, insensibility, or disdain which makes it unbearable for employee to work. Also happens if employer does not reinstate employee after a 30day suspension. Temporary Lay-off- when employer does not recall employees for more than 6 months, otherwise it is a permanent retrenchment.

AUTHORIZED CAUSES (to prevent losses or closing or cessation of operation of the

establishment) 1. Installation of LABOR-SAVING DEVICES (1month pay or 1month/ year of service) 2. REDUNDANCY (1month pay or 1month/year of service) Exists where the services of an employee are in excess of what is REASONABLY DEMANDED by the ACTUAL REQUIREMENT of the enterprise. Superfluous and in excess due to overhiring, decreased volume of business, dropping a particular product, etc. Employer has NO LEGAL OBLIGATION to keep more employees in his payroll than what his business necessitates. It is a management prerogative to choose more efficient means, even hiring subcontractors. If its part of companys cost-saving/streamlining program, and there is absence of proof of abuse of discretion, malice or arbitrariness, its ok. Criteria in choosing who to lay-off should be fair and reasonable, not limited to less preferred status, efficiency, seniority. Positions mandated by law cannot be declared redundant. 3. RETRENCHMENT (1month pay or month/ year of service) Includes both COMPLETE CESSATION of all business operations, or PARTIAL CESSATION (e.g. closed department, etc). Requisites: a. SUBSTANTIAL losses b. Reasonably IMMINENT perceived objectively and in good faith c. Reasonably NECESSARY to PREVENT losses. Employer must have taken other measures. d. Losses must be PROVEN by sufficient and convincing evidence. e. Purpose must be to PRESERVE viability of the business. Only if based on SERIOUS business losses or financial reverses are there no obligations to give separation pay. Company relocating causing employees to resign is simulated resignation. Separation pay is required because resignation must be VOLUNTARY accompanies by the INTENTION of relinquishing the office. If government causes the closure, not the liking of the employer, no separation pay.

GROUNDS FOR TERMINATION BY EMPLOYEE

Voluntary Resignation- the act of an employee who finds himself in a situation in which he belies that personal reasons cannot be sacrificed in favour of the exigency of the service. Once accepted, cannot be withdrawn without consent of employer. No separation pay One month written notice to employee intended date of effectivity required, unless: 1. Serious INSULT to the honor and person of the employee 2. Inhuman and unbearable TREATMENT 3. Commission of a CRIME or OFFENSE against employee/family member 4. Other causes analogous

TERMINATION : PROCEDURAL DUE PROCESS (30 days)

Requisites: 1. 1st WRITTEN NOTICE served specifying grounds for termination and giving reasonable opportunity to explain employees side. 2. HEARING/CONFERENCE with the assistance of counsel if desired to respond, to present evidence, and to rebut evidence of employer. Ample Opportunity- connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his DEFENSE including LEGAL REPRESENTATION. SUMMARY PROCEEDINGS allowed. Formal hearing is discretionary on the Labor Arbiter. Dismissal can be decided on the basis of position papers. Quantum of proof required: Substantial Proof- evidence that a reasonable mind might accept as adequate to support a conclusion. 3. 2nd WRITTEN NOTICE OF TERMINATION indicating justification for termination. NOTES: Burden of proving twin notice on the employer. Strict rules on due process because it doesnt only affect the employees position, but also his means of livelihood and his dependents sustenance. Work is a property right. Violation of the Required Due Process: Wemphil Doctrine- If dismissal is based on just/authorized cause but without due process, employer should only be fined/sanctioned (3K) but employee shouldnt be reinstated because it would demoralize the rank and file and would be prejudicial to employer. Serrano Ruling- Due to apparent abuse by employers of Wemphil ruling, the fine is now increased to 10K. The remedy of the employee is still not reinstatement but FULL BACKWAGES from the time of his dismissal until the court decided that there was just cause. HIS DISMISSAL IS INEFFECTUAL until decided upon, though no reinstatement. Abagon Ruling- reverted back to Wemphil ruling. Dismissal is effectual but there is a 30K fine on the employer. NO BACKWAGES but separation pay is in order.

RETIREMENT FROM SERVICE

Intended for those who have no more plans of employment after retirement. Option of employer to retire employees is valid. Based either on the CBA or other applicable employment contract. In the absence of a better retirement plan, the following will apply: Optional Retirement Age: Compulsory Retirement Age: Minimum Required Years Service: Retirement Pay: 60 65 5 salary/year of service (6months=1yr) = 15 days + (1/12) 13th month pay + 5days service incentive = 22.5days x number of years of service For those paid in results: Use average daily salary (ADS) = derived from the actual working days in the last 12 months. Exemptions: Retail, service, agricultural establishments < 10 Employees