LABOR Arts 1-97

Art.4. CONSTRUCTION IN FAVOR OF LABOR

1. 2. 3. 4. All doubts in the implementation and interpretation of the provisions shall be resolved in favor of Labor But management also has its own rights which are entitled to respect, in the interest of fair play: Right to Recovery of Investment Right to Prescribe Reasonable Rules Right to Select Employees Right to Transfer or Discharge Employees

The govt may in the pursuit of the national interest or when public welfare requires, may terminate or impose a ban on the deployment of migrant workers

Art. 5. APPLICABILITY
To all workers, WON agricultural or non-agri Applies to govt. corporations, but not govt agencies Labor Code applies WON there is an employment relationship between the disputants, depending on the kind of issue involved.

Liability of the principal/employer and the recruitment/placement agency for all claims Shall be joint and several. Such liabilities shall continue during the entire period of the employment contract and shall not be affected by any substitution or amendment made locally or in a foreign country of said contract Migrant worker- a person who is to be, or is, or has been engaged in a remunerated activity in a state of which he is not a legal resident. Seafarers are contractual employees Where the workers employment contract is terminated before its agreed termination date Aand the termination is not shown to be based on valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. A worker who is illegally dismissed is entitled to full reimbursement of his placement fee with interest at 12% per annum, plus his salary for the unexpired portion of his employment contract or for 3 months for every year of the unexpired term, whichever is less The option of 3 months for every year is available only if the employment is for at least one year. If it is shorter than that, the salary to be recovered has to be that for the unexpired portion. This (RA 8042) applies to all overseas contracts dismissed on or after its effectivity, July 15, 1995 though the employment commenced before that date. The determining point of applicability is the date of unjust dismissal of the employee. Filipino seamen-Wages and Benefits They should receive the same without regard to the nationality of the vessels on which they serve. Coz Filipinos working overseas share the same risks and burdens WON their employers be Filipinos or foreigner. The standard contract of employemnt for Filipino seamen allows the payment of death benefit pension, gratuity to the worker If the contract of a Filipino seaman provides that his compensation benefit shall be computed on the basis of whichever is greater between Phil. Law or the law of the registry of the vessel, it is correct to resolve the award based on the law of registry of the vessel providing greater benefit. Where the laws of the host country are more favorable and beneficial to the workers, then the laws of the host country shall form part of the overseas employment contract. Payment of wages equivalent in Philippine currency is allowable, esp if the ficing of the award in dollars was based on parties employment contract.

Chapter 2- EMANCIPATION OF TENANTS

R.A. 3844 abolished and outlawed share tenancy and put in its stead the agri leasehold system. The landowner cannot use the enactment of the Agrarian Reform Code as basis to set back the tenurial rights of the tenant. Lands not covered are those obtained through Homestead Patent, Residential Subdivisions, Livestock, Poultry and Swine Raising Lands

BOOK ONE. PRE-EMPLOYMENT

Art. 13. DEFINITIONS
The number of persons is not an essential ingredient of the act of recruitment and placement of workers The presumption is that the person is engaged in recruitment and placement whenever he is dealing with two or more persons to whom, in consideration of a fee, an offer or promise of employment is made in the course of contracting, transporting, utilizing, hiring or procuring of workers To prove that the accused was engaged in recruitment activities, it must be shown that he gave the complainant the distinct impression that he had the power or ability to send the complainant abroad, so that the latter was convinced to part with her money in order to be employed. If such act or representation is not proven, there is no recruitment activity.

Art. 16. PRIVATE RECRUITMENT

No person or entity other than the public employment offices, and except as provided (private recruitment offices, shipping or manning agents, POEA, construction contractors, members of diplomatic corps), shall engage in the recruitment and placement of workers

Art. 17. OVERSEAS EMPLOYMENT DEVT. BOARD

Art. 18. BAN ON DIRECT HIRING

Direct hiring of Filipino workers made by a foreign employer is not allowed except that

done by members of the diplomatic corps and others. Also excepted are name hirees or those individual workers who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency The hiring though has to be processed thru POEA

Art. 28. CAPITALIZATION

All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization

Art. 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY

No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity. As a rule, licensees or holders of authority may undertake recruitment and placement activity only at their authorized official addresses. In case of provincial recruitment, written authority must be obtained from the POEA. Recruitment of workers for overseas employment cannot be lawfully undertaken on a house-to-house basis, in residences or secluded places.

Art. 20. NATL.SEAMEN BOARD

Immutability of seamans standard contract The possible terms of employment must be secured for contract seamen workers and secure compliance An agreement that diminishes the employees pay and benefits as contained in a POEAapproved contract is void, unless such subsequent agreement is approved by POEA. Laches doctrine does not apply. Laches is a doctrine in equity while prescription is based on law. Our courts are courts of law, not courts of equity. Thus, laches cannot be invoked to resist the enforcement of an existing legal right Minimum employment conditions Freedom to stipulate other terms and conditions not provided under the min reqs, provided the whole employment package should be more beneficial to the worker than the minimum, provided that the same shall not be contrary to law, public policy and morals.

Art. 32. FEES TO BE PAID BY WORKERS

Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment thru its efforts or has actually commenced employment, Such fee shall be always covered with the appropriate receipt clearly showing the amount paid.

Art. 21. FOREIGN SERVICE ROLE & PARTICIPATION

The primary responsibility to repatriate a worker Including his or her remains and personal effects, belongs to the principal or the agency that recruited or deployed the worker. He has to advance the plane fare and immediately repatriate the worker, as needed, without determining the cause of termination of employment. If the termination is due solely to the fault of the worker, the principal or agency may recover the cost of repatriation from the worker after return to the country. Or not OWWA. In no case shall an employment agency require any bond or cash deposit from the worker to guarantee performance under the contract of his repatriation.

Art. 34. PROHIBITED PRACTICES

Read codal Where a supplementary contract was entered into affording greater benefits to the employee than the previous one and although the same was not submitted for approval of the POEA, the contract is valid and enforceable.

Art. 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY

Grounds for imposition of administrative sanctions (also constitute illegal recruitment): 1. Engaging in acts of misrepresentation for the purpose of securing a license or renewal thereof 2. Engaging in the recruitment of plcament of workers in jobs harmful to public health or morality or to the dignity of RP 3. Charging of any fee before employment is obtained for an applicant worker 4. Charding of any fee in amount exceeding the allowable rate and obstructing inspections by DOLE A recruitment agency is solidarily liable for The unpaid salaries of a worker it recruited for employment with a foreign principal. Even if the recruitment agency and the principal had already severed their agency agreement at the time the worker was injured, the recruitment agency may be sued for violation of the employment contract, if no notice of the agency agreements termination was given to the employee. Read page 92

Chapter II- REGULATIONS OF RECRUITMENT & PLACEMENT ACTIVITIES

Art. 26. TRAVEL AGENCIES PROHIBIT TO RECRUIT
Travel agencies and sale agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment WON for profit. Also to any official or employee of DOLE, POEA, OWWA, DFA and other govt agencies directly involved with the implementation of RA 8042 or any of their relatives within the 4th civil degree.

Art. 38. ILLEGAL RECRUITMENT

Illegal recruitment shall mean any act of CETCHUP and CRAP, WON for profit, when undertaken by a non-licensee or non-holder of authority...Provided that the non-licensee or non-holder in any manner offers or promises for a fee employment abroad two or more persons shall be deemed so engaged. Even a licensee or holder of authority may be held guilty of illegal recruitment

alien for employment in the Phils shall obtain an employment permit from DOLE. The permit may be issued to a non-resident alien or to an applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired.

IR when committed by a syndicate or in large scale Shall be considered an offense involving economic sabotage. By a syndicate -if carried out by a group of 3 or more persons conspiring with each other. Inn large scale- if committed against 3 or more persons individually or as a group. IR in large scale and by a syndicate are separate categories. They need not coincide in the same case. Where only one complainant filed individual complaints, there is no IR in large scale. But 3 conspiring recruiters can be held guilty of IR by a syndicate. Where IR is proved, but the elements of largescale or syndicate are absent, the accused can be convicted only of simple IR IR cases shall prescribe in 5 years but IR involving economic sabotage, in 20 years (read 109-113) Persons liable for IR Principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. An employee who does not control, manage or direct the business may not be held liable for IR. Where it is shown that the employee was merely acting under the direction of his superiors and was unaware that his acts constituted a crime, he may not be held criminally liable for an act done for and in behalf of his employer. He is liable if it is shown that he actively and consciously participated in illegal recruitment Lack of receipts cant defeat a criminal prosecution for IR. As long as the witness can show through their respective testimonies that the accused is the one involved in IR Elements of Estafa: That the accused defrauded another by abuse of confidence or by means of deceit and; b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. Read pg 100

Foreigners may not be employed in certain nationalized biz The Anti-Dummy Law prohibits employment of aliens in entities that own or control a right, franchise, privilege, property or business whose excercise is reserved by law to Filipinos or corporations whose capital should be at least 60% Filipino owned. Authority to operate a public utility or to develop natural resources, as well as mass media enterprises can be granted only to Phil citizens Aliens may be employed in entities engaged in nationalized activities where the Sec. Of Justice specifically authorizes the employment of foreign tech personnel, or where the aliens are elected members of the board of directors of corporations in proportion to their allowable participation in the capital of such entities. (read cases)

Art. 41. PROHIBITION AGAINST TRANSFER OF PAYMENT

After the issuance of an employment permit, the alien shall not transfer to another job, or change his employer without prior approval of the Sec. Of Labor

BOOK 2-HUMAN RESOURCES DEVT. TITLE 1- NATL. MANPOWER DEVT. PROGRAM CHAPTER 1- NATL POLICIES & ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION TITLE2- TRAINING AND EMPLOYMENT OF SPECIAL WORKERS CHAPTER 1- APPRENTICES

Apprenticeship means practical training on the job supplemented by related theoretical instruction Apprenticeable occupation means any form of employment or occupation which requires more than 3 months of training He must be 15 years or older

Art. 61. CONTENTS OF APPRENTICESHIP AGREEMENTS

The period of apprenticeship shall not exceed 6 months Such agreements providing for wage rates below the legal min wage (which shall in no case start below 75%) may be entered into only in accordance with apprenticeship programs duly approved by DOLE Prior approval of the DOLE is a condition sine qua non Before a valid apprenticeship program may be validly entered into. Absent this, agreement has no

TITLE II-EMPLOYMENT OF RESIDENT ALIENS

Art. 40. EMPLOYMENT PERMIT OF NONRESIDENT
Any alien seeking admission to the Phils for employment purposes and any domestic or foreign employer who desires to engage an

force and effect and he would be considered a regular employee

Art. 72. APPRENTICES WITHOUT COMPENSATION

Sec of Labor may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training prog curriculum or as a requisite for grad or board exams

Any agreement may provide that one party shall render services for and in behalf of another, No matter how necessary for the latters business, even without being hired as an employee or not. This is true in the case of an independent contractorship as well as in an agency agreement. Elements or Tests of Employment Relationship. No uniform test. Generally, the Right of Control Test: Where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end. This calls for the existence of the right to control the manner of doing work, not actual existence of the right. Independent Contractors can employ others to work and accomplish contemplated result without consent of contractee, while employee cannot substitute another in his place without consent of his employer. Also to be considered existing economic conditions Prevailing between the parties, like the inclusion of the employee in the payrolls. Elements of the Four-fold test 1. The selection and engagement of the employee 2. The payment of wages 3. The power of dismissal 4. The emmployers power to control the employee with respect to the means and methods by which the work is to be accomplished But it is the Control Test that is the most impt. Element Two-tiered Approached: The Economic Dependence Test 1. The putative employers power to control the employee with respect to the means & methods by which the work is to be accomplished. 2. The underlying econ realities of the activity or relationship This is appropriate where there is no written agreement or terms of reference to base the relationship on (Read Francisco vs NLRC) The proper standard of econ dependence is WON the worker is dependent on the alleged employer for his continued employment in that line of biz. Absence of Name in Payroll Does not disprove ones being an employee Mode of Compensation is not a Test of Employment Status It may be on the basis of time spent on the job or on the quality/quantity of work done. Pay determination is a different matter so its computation does not prove WON employee is a payee. Existence of Employment Relationship by Law, not by Contract

No employer-employee relationship bet students & schools. On the other hand, there is written agreement bet them where the student agree to work for the school in exchange for the privilege to study free of charge. If the student injures a third party, does the school become liable? Yes.

CHAPTER 2- LEARNERS CHAPTER 3- HANDICAPPED WORKERS

Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards

They may be hired as apprentices or learners if Ttheir handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.

Book 3- CONDITIONS OF EMPLOYMENT Title 1- WORKING CONDITIONS & REST PERIODS CHAPTER 1- HOURS OF WORK
Art. 82. Coverage
All establishments & undertakings WON for profit, but not to: Govt. employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results. Managerial employees refer to those whose primary duty consists of the management of the establishment in which they are employed of, and to other officers or members of the managerial staff. Field personnel are Nonagricultural employees who regularly perform their duties away from the principal place of business and whose actual hours of work in the field cannot be determined with reasonable certainty. Employer-employee relationship may cover core or non-core activities of the employers business. The worker is not necessarily an employee just because the work he is doing is directly related to the trade or biz of the alleged employer. Depending on the applicability of the tests of employment, an employer-employee relationship may exist regardless of the nature of the activities involved.

The kind of work is not the definitive test of WON the worker is an employee.

It cannot be negated simply by repudiating it in the management or employment contract. It cannot be held that worker is an independent contractor when the terms of agreement clearly show otherwise. So even when the parties call their contract as that of lease of services, the factual existence of an employer-employee will still prevail. (Read 167176)

Health personnel in govt service exempted from coverage of Arts 82 to 96 Thru a contract freely entered into, the workshift may exceed 8 hours, with corresponding overtime pay. Such arrangement is valid and binding.

Art. 84. HOURS OF WORK

This shall include: 1. All time during which an employee is required to be on duty or to be at a prescribed workplace 2. All time during which an employee is suffered or permitted to do work. Rest periods of short duration during working hours shall be counted as hours worked.

Labor Union & Unregistered Association as Employer When Employment Relationship Absent; Job Contracting or Independent Contractorship An employee is not a contractor; a contractor is not an employee and does not enjoy an employees rights. A contractor is self-employed or an employer to others. And if a contractor hires other workers, the latter are his employees and not those of the contractee. The law validates this trilateral setup only if the contractor is himself a bona fide bizman or biz firm. If he is notso, the contractee or client may end up being the employer of those other workers. (Read examples in pg 178) Labor-Contracting is Prohibited His contract is not to accomplish a job or service but merely to supply the people to do the job. He does not really hire people but merely recruits and supplies people. He is an agent of the true employer, the enterprise to which the labor-only contractor sends the people So bet job contractor and hirees, e-e relationship exists; in labor-only contracting, e-e relationship is bet the workers and the enterprise to which they are supplied. General Right of Employer Over Conditions of Employment So as long as a companys prerogatives are excercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of the employees Where employment relationship exists, the ff are not covered by law on the conditions of employment: 1. Govt. employees 2. Managerial employees 3. Field personnel 4. The Employers family members who depend on him for support 5. The domestic helpers and persons in the personal service of another 6. Workers who are paid by results as determined under DOLE regulations

Waiting time Waiting time spent by an employee shall be considered as working time if waiting is considered an integral part of his work or if the employee is required or engaged by an employer to wait.

Working While Eating The employee must be completely relieved from duty for the purpose of eating regular meals. The meal time is not compensable if he is completely freed from duties during his meal period even though he remains in the workplace. But the he is not relieved if he is required to perform his duties WON active or inactive, while eating. Working While Sleeping Sleeping time may be considered working time if it is subject to serious interruption or takes place under conditions substantially less desirable than would likely to exist at employees home. BUT not working time when there is an opportunity for comparatively uninterrupted sleep under fairly desirable conditions, even though the employee is required to remain on or near employers premises and must hold himself in readiness for a call to action employment. On Call When work is not continuous, the time when the laborer can leave his work and rest completely shall not be counted in the computation. However, although laborers can rest completely and may not be actually at work, if they are required to be in their place of work before or after the regular working hours and within the call of their employers, the time they stay in the place of work should not be discounted from their working hours. An employee who is required to remain on call on the employers premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. If an employee is kept within reach thru a cellphone, is he at work beyond his regular work hours? NO.

Art. 83 NORMAL HOURS OF WORK

Only 8 hours a day. Shall not exced Health personnel, shall hold reg office hours for 8 hours a day, for 5 dyas a week, exclusive of time for meals, except where exegencies of the service require that personnel work for 6 days or 48 hours, in which they shall be entitled to additional compensation of 30% of their regular wage on the 6th day

WON time spent in travel is working time depends on the kind of travel involved 1. Travel from home to work Not worktime. But it is so when an employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or work site

installation to avoid serious loss which the employer would otherwise suffer 4. Where the work is necessary to prevent serious loss of perishable goods Shortened meal break upon employees request. So they can leave work earlier. Yes, But the shortened meal period is not compensable.

2. Travel that is all in the days work Must be counted as part of hours worked, regardless of contract, custom or practice

Art. 86. NIGHT SHIFT DIFFERENTIAL

Every employee shall be paid a NSD of not less than 10% of his regular wage for each hour of work performed between 10pm and 6am This is not waivable

3. Travel away from home Worktime only when it cuts across the employees workday. The employee is simply substituting travel for other duties. The time is hours worked not only on regular working days during normal working hours but also during the corresponding hours on nonworking days. BUT any work which an employee is required to perform while travelling must of course be counted as hours worked. Lectures, Meetings and Training Programs, Need not be Counted as Wtime if these criteria are met: 1. Attendance is outside of his working hours 2. Attendance is voluntary 3. He does not perform any productive work during such attendance Grievance Meeting. Time spent ishours worked. Regular Full-time Teachers are entitled to salary and ECILA during semestral breaks Work hours of seaman A worker is entitled to overtime pay only for work in actual service beyong 8 hours. He should receive overtime compensation only for the actual service in excess of eight hours that he could prove. Seamen are req to stay on board their vessels by the very nature of their duties and coz of this, in addition to their reg wages, they aregiven free living quarters to be on board. When an employee alleges that his employee works less than the normal hours of employment He bears the burden of proving his allegation

Art. 85. MEAL PERIODS

Not less than 60 mins. Meal time is not compensable except in cases where it is predominantly spent for the employers benefit or where it is less than 60 mins. Where work is continuous for several shifts, the meal time breaks should be counted as working time for purposes of overtime compensation.

Situations where break may be shortened to less than 60 mins, with full pay: 1. Where work is non-maanial or does not involve serious physical exertion 2. Where the establishment regularly operates not less than 16 hours a day 3. Where there is actual or impending emergencies, or there is urgent work to be performed on machines, equipment or