Title II WAGES Chapter I PRELIMINARY MATTERS Article 97. Definitions. As used in this Title: "Person" means an individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons. "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations. "Employee" includes any individual employed by an employer. "Agriculture" includes farming in all its branches and, among other things, includes cultivation and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer on a farm as an incident to or in conjunction with such farming operations, but does not include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other farm products. "Employ" includes to suffer or permit to work. "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. "Fair and reasonable value" shall not include any profit to the employer, or to any person affiliated with the employer. Article 98. Application of Title. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law.
Wages remunerations or earnings payable by an employer to an employee for work done or to be done or for services rendered or to be rendered. - The remuneration should arise from a relationship of employer- employee. - If not product of employer-employee relationship, not considered wages o Principal-agent o Attorney-client o Doctor-patient
Salary and wages WAGES SALARY - Compensation for manual labor, skilled or unskilled, paid at stated times and measured by the day, week, month or season - Higher grade of employment, or a superior grade of services and implies a position of office - Considerable pay for lower and less responsible character of employment - Suggestive of a higher and more important service
Importance of distinction: - To determine whether or not the compensation of the employee could be subject of garnishment or attachment. - WAGES exempted Art. 1708 of the Civil code exempts the laborers wage from execution or attachment except for debts incurred for food, shelter, clothing and medical attendance. - SALARIES not exempt, hence, could be subject of garnishment or attachment.
Commission considered WAGES if paid because of an employer-employee relationship.
Bonus- an amount granted and paid to an employee for his industry and loyalty which contributed to the success of the employers business and made possible the realization of profits. - An act of generosity granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of profits. LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 2 - GR: bonus is not a demandable and enforceable obligation. - Bonus can be demanded as A MATTER OF RIGHT: o the grant thereof is the result of an agreement or contract o if it is made part of the wages: given in a fixed amount without any condition, regardless of whether or not profits are realized if it has ripened into a practice by virtue of its long and regular concession (should be done consistently, voluntarily and deliberately).
Facilities items of expense, necessary for the laborers and his familys existence and subsistence. - Ex. Rice ration, housing, recreation facilities, medical treatment to dependents, school facilities, cost of water, light, fuel, etc. - Considered part of wages.
The cost of facilities furnished by the employer may be deducted or charged against an employee under the following conditions: 1. the facilities must be customarily furnished by the trade - customarily founded on long-established and constant practice connoting regularity. 2. the provision of deductible facilities must be voluntarily accepted in writing by the employee 3. the facilities must be charged at fair and reasonable value. Supplements extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages.
Criterion to determine if benefit is a supplement or facility: - PURPOSE o If the purpose is primarily for the benefit of the employer, then it is NOT considered as facility.
Article 100. Prohibition against elimination or diminution of benefits. Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.
Can an employer withdraw benefits granted? - Benefits granted voluntarily, regularly and unconditionally after the promulgation of the Labor Code still cannot be reduced or withdrawn under the principle of non-diminution of benefits. - Benefits which become part of the term and conditions of employment - Must be accorded through a long period of time.
If the grant is due to mistake, the benefit can then be withdrawn. The mistake may be a mistake of fact (i.e. belief that employees are entitled to the benefit when they are not so entitled) or mistake of law (i.e. erroneous construction or application of doubtful or difficult question of law.
Article 99. Regional minimum wages. The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. (As amended by Section 3, Republic Act No. 6727, June 9, 1989).
- Minimum wage prescribed by the Regional Tripartite Wages and Productivity Boards - Congress may still legislate on the minimum wage.
Failure to pay minimum wage: 1. Criminal Liability failure or refusal to pay the prescribed wage increase is penalized with the penalty of fine of not less that P25knor more than 100k or imprisonment of not less than 2 years nor more than 4 years or both at the discretion of the court. The benefits provided for under the Probation Law are not available. 2. Double Indemnity in addition to the criminal liability, the employer who fails or refuses to pay the prescribed wage increase Is liable to pay an amount double the unpaid benefits owing to the employee.
Wage Distortion a situation where an increase in the prescribed wage rates results in the elimination or sever contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. Elements of wage distortion: 1. an existing hierarchy of positions with corresponding salary rates 2. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. 3. The elimination or severe contraction of the distinction between the two levels 4. the existence of the distortion in the same region of the country.
Ex. Clerk 3 P 465 ; Clerk 2 P 460 ; Clerk 1 P 456 W.O. imposes a P10 increase for Clerk 1 therefore it will be P466, then there is wage distortion W.O. imposes a P2 increase for Clerk 1, making the minimum wage P458, there still is wage distortion because of severe contraction.
LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 3 How to correct a wage distortion situation: Distinguish whether establishment is organized or unorganized.
Unionized: 1. the employer and the union shall negotiate to correct the distortions. 2. if the negotiations fail, the matter will be brought to the grievance machinery under their collective bargaining agreement. 3. if the grievance machinery fails to settle dispute, the matter shall be threshed out through voluntary arbitration.
Non-Unionized: 1. the employers and the workers shall negotiate to correct such distortions 2. if the negotiations fail, the matter shall be brought to the National Conciliation and Mediation Board for conciliation 3. if conciliation fails, the dispute shall be referred to the appropriate branch of the National Labor Relations for compulsory arbitration.
There is no legal requirement that the historical gap that existed before the implementation of the wage order be resorted to in precisely the same form or amount Re-establishment of a significant gap or differential between regular employees and non-regular employees by operation of the collective bargaining agreement is sufficient to correct the wage distortion.
Chapter III PAYMENT OF WAGES Article 102. Forms of payment. No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement. Legal tender that currency which has been made suitable by law for the purpose of tender of payment of debts. - Wages should be paid in legal tender. If not paid in legal tender, it is as if it was not paid. - Managers checks or ordinary checks are not legal tender
Payment of wages by check or money order are allowed under any of the following cases: 1. when such manner of payment is customary on the date of the effectivity of the Labor Code, 2. when so stipulated in a CBA 3. when there is a bank or other facility for encashment within a radius of one kilometre from the workplace, provided that the employer or any of his agents does not receive any pecuniary benefit directly or indirectly from the arrangement and provided further, that the employees are given reasonable time during banking hours to withdraw their wages from the bank on company time, and provided finally that the employee consents to such an arrangement, in the absence of a collective agreement on the matter
Article 103. Time of payment. Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; That final settlement is made upon completion of the work. Frequency of payment: GR: once every two weeks or twice a month at intervals not exceeding 16 days. EX: in case of wages pertaining to a task which cannot be finished in two weeks, payment thereof shall be made at intervals not exceeding 16 days in proportion to the amount of work completed.
Circumstances that may justify delayed payment: 1. force majeure 2. circumstances beyond the employers control.
LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 4 Force majeure events which arise from legitimate or illegitimate acts of person other than the employer, such as, war, robbery, arson, etc.
Circumstances beyond control fortuitous events independent of human intervention, such as floods, typhoons, earthquakes and other natural calamities Immediately after cessation of the force majeure or fortuitous event, the employer should pay the wages.
Article 104. Place of payment. Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages.
- The employer is prohibited from paying wages in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places where games are played with stakes of money.
Article 105. Direct payment of wages. Wages shall be paid directly to the workers to whom they are due, except: In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority given by the worker for the purpose; or Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid. GR: Wages should be paid directly to the workers to whom they are due. EX: The employer may pay the wages or any part of it to another person: 1. Where the employer is authorized in writing by the employee to pay his wages to a member of the family 2. Where payment to another person of any part of the employees wage is authorized by existing law, including payment for insurance premium of the employee and union dues where the right to check-off has been recognized by the employer in accordance with a collective bargaining agreement or authorized in writing by the individual employees concerned 3. in case of death of the employee 4. in case of force majeure rendering direct payment impossible, provided that the employee executes a written authority for the delivery of his wages to another person.
If a specific job was contracted by a group, payment of wages may be coursed through the leader of the group, without violating the law on direct payment of wages.
Payment of wages of an employee who has died - The heirs should simply submit to the employer an affidavit attesting to their relationship with the deceased and the fact that they are his heirs, to the exclusion of all other persons. - If any of the heirs is a minor, the natural guardian or next of kin shall execute the affidavit in his behalf. - Upon presentation of the affidavit, the employer shall make payment to the heirs as representative of the Secretary of Labor and Employment.
Article 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employers business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989)
This article only applies in case of bankruptcy or judicial liquidation of the employer - Before the workers preference may be invoked, there must be a judicial declaration of bankruptcy or judicial liquidation of the employers business. - If only being rehabilitated, the article will not apply because assets are not up for distribution.
This has to be correlated to the Civil Code provisions on concurrence of credits a. special preferred credits (Art. 2241 and 2242) constitute liens or encumbrances on the specific property to which they relate b. ordinary preferred credits (Art. 2244) they create rights in favour of certain creditors to have cash and other assets of the insolvent applied in a certain sequence or order of priority LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 5 c. common credits (Art. 2245) enjoy no preference, no lien on specific property Money claims of workers Not all monetary claims of workers fall under the category of special preferred credits. - Only those in Art. 2241 (6) and Art 2242 (3) are special preferred credits. All other monetary claims are considered as ordinary preferred credits. - Art. 2241(6) Claims for laborers wages, on the goods manufactured or the work done - Art. 2242 (3) Claims of labourers, masons, mechanics and other workmen, as well as architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works. - Mortgage is a special preferred credit therefore, it takes precedence over monetary claims of workers, unless the workers claim fall within the ambit of a specially preferred credit, in which case, both claims will have to be treated on an equal basis and satisfied concurrently and proportionately after the tax liens shall have been satisfied.
Ex. A company constructed a building, hired contractor, hired laborers. To finance, it obtained a loan in BPI and to secure the loan, it mortgaged the building. The company used the building as headquarters with regular workers. The company was unable to pay the mortgage. 1. pay first the contractor, laborers and mortgage SPC with respect to the building 2. wages of workers in the building OPC
If there is franchise tax, pay it first then the contractor, labourers, and mortgage then employees. - Taxes enjoy first preference among the SPC.
If no taxes, mortgage then claim. - Mortgage first satisfied because it constitutes a lien on the specific property.
Chapter IV PROHIBITIONS REGARDING WAGES
ARTICLE 112. Non-interference in disposal of wages. - No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person.
ARTICLE 113. Wage deduction. - No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; (b) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and (c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.
ARTICLE 114. Deposits for loss or damage. - No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations.
Prohibitions on employers 1. Prohibition against Interference in the Use of Wages 2. Wage Deduction, except those authorized by law and in writing. 3. Requirement to pay deposits to pay for damaged tools, materials or equipment supplied by employer
Lawful deductions 1. Insurance premiums advanced by the employer in behalf of an employee whom the employer insured with the employees consent 2. Union dues, where the right to check-off has been recognized by the employer or authorized in writing by the individual employees concerned 3. Agency fees assessed by the collective bargaining agent against non- union members who accept the benefits under the collective bargaining agreement. 4. Special assessments or extraordinary fees levied by a collective bargaining agent against its members, provided that: a. The special assessment is authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose b. The minutes of the meeting, including te list of all members present, the votes cast, and the purpose of the special LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 6 assessment are recorded by the union secretary and attested to by the union president and c. An individual written check-off authorization stating the amount, purpose and beneficiary of the deduction is duly executed by the employees concerned 5. Fair and reasonable value of facilities furnished by the employer and voluntarily accepted by the employee. 6. Obligations of an employee to a third person, provided that the employee executes a written authorization and the employer agrees to make the deduction without any pecuniary benefit, directly or indirectly. 7. Cost of lost or damaged tools, materials or equipment supplied by the employer to the employee in trades, occupations or business where the practice of making deductions is recognized. 8. Due and demandable debt of an employee to his employer 9. Deductions made in compliance with writs ofexecution or attachment against the employees for debts incurred for food, shelter, clothing and medical attendance 10. Income tax 11. SSS 12. Employees share in the premium contributions to the National Health Insurance Program 13. Employees contribution to the Home Development Mutual Fund.
Deposits for Loss or Damage - An employer can require to make deposits to answer for loss or damage to tools, materials or equipment supplied by the employer under the following situations: o When the employer is engaged in such trades, occupations or business where the practice of making deductions requiring deposits is a recognized one o When necessary or desirable as determined by the Secretary of labor in appropriate rules and regulations. - Taxi companies cannot require its drivers to deposit to answer for any deficiency in their boundary.
Conditions for Effecting Deductions From Deposits: a. that the employee concerned is clearly shown to be responsible for the loss or damage b. that the employee is given reasonable opportunity to show cause why deduction should not be made c. that the amount of such deductions is fair and reasonable and shall not exceed the actual loss or damage d. the deduction from the wages of the employee does not exceed 20% of the employees wages in a week
Contracting
ARTICLE 106. Contractor or subcontractor. - Whenever an employer enters into a contract with another person for the performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shall be paid in accordance with the provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.
The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.
There is labor-only contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
ARTICLE 107. Indirect employer. - The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.
Contracting or Subcontracting - when an employer engages the services of a contractor to perform a certain work, taks, or job on his own account under his own responsibility free from the control and direction of his employer in all matters except as to the result of the work. LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 7
Requisites of Valid Contracting or Subcontracting: 1. the contractor or subcontractor must have a distinct and independent business and must undertake to perform the job, work or service on his own account, under his own responsibility, according to his own manner and method, free from control and direction of the principal in all matters connected with the performance of the work, except as to the results thereof 2. the contractor or subcontractor must have substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of his business.
If the employer engages a contractor but the employer controls the means and result then it is as if the principal is the employer and not the contractor. - This is labor-only contracting.
Legal Effects of Legitimate Contracting or Subcontracting: - No employer-employee relationship between the employer and the employees of the contractor. - BUT if the contractor fails to pay the wages of his employees in accordance with the Labor Code, the employer becomes jointly and severally liable with his contractor for wages to the extent of the work performed under the contract. o Only for unpaid wages.
Contracting and Subcontracting is illegal in these situations: 1. Labor-only contracting 2. Contracting out with a cabo 3. Contracting out work through an in-house agency 4. Contracting out work that is directly related to the business or operation of the principal by reason of a strike or lockout, whether actual or imminent 5. Contracting out work when not done in good faith and not justified by the exigencies of the business and the same results in the termination of regular employees, reduction of work hours, or reduction or splitting of the bargaining unit 6. Contracting out work being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self organization
Can the government be held solidarily liable? - From the definition of employer under Art. 97(b) of the Labor code, the NLRC can validly exercise jurisdiction over a claim for non-payment or underpayment of wages by the contractors employees against Government or GOCCs with special charters. As defined in Art. 97(b) of the labor code, the term employershall include the Government and all its branches, subdivision and instrumentalities, all GOCCs and institutions.
Labor-only contracting - an arrangement whereby the contractor who does not have substantial capital or investment in the form of tools, equipment, machineries and work premises, merely recruits, supplies or places workers only, to a principal employer to perform a job, work or activity that is directly related to the main business of the principal employer.
Elements of Labor-Only Contracting: 1. the contractor supplies workers only to a principal employer 2. the workers perform activities that are directly related to the main business of the principal 3. the contractor does not have a substantial capital or investment to actually perform the job, work, or service under its own account or responsibility.
Legal effects of labor-only contracting: - The law establishes an employer-employee relationship between the principal employer and the employees of the contractor. - The contractor is considered as a mere agent of the principal employer, and therefore, both the principal employer and the contractor are solidarily liable for all rightful claims of the employees.
Article 128. Visitorial and enforcement power. The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employers records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 8 this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994) The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non- compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be nece ssary in aid of his visitorial and enforcement powers under this Code. The Visitorial Power - The visitorial power conferred by Art 128 (a) of the Labor Code empowers the Secretary or Labor and Employment or his duly authorized representatives, including Labor Standards and Welfare Officers, to: o Inspect the records and premises of an employer o Copy pertinent records or documents o Question any employee o Investigate any fact, condition or matter for the purpose of determining whether an employer is complying with labor standards - This includes violations of health and safety regulations - The visitorial power can be exercised at any time of the day or night, whenever work is being undertaken therein.
If the Department of Labor finds violations of labor standards, it may issue: o Compliance orders o Writs of execution
- The visitorial and enforcement powers are exercisable over establishments, not over individual employees. o Because what is sought to be achieved by this exercise is the observance of, and or compliance by, such establishment with labor standards laws and regulations. - Visitorial and enforcement power is not restricted by the amount involved unlike the adjudicatory power conferred by Art. 129 of the labor code which limits the jurisdictional amount to P5,000. - If DOLE discovers that employees are underpaid or not paid overtime, even without complaint from employees, the Secretary of Labor can order employer to pay the violated labor standard.
Article 129. Recovery of wages, simple money claims and other benefits. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 9 recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989) Article 129 of the Labor Code confers upon the Regional Director of DOLE the authority to hear and decide claims for unpaid wages and other monetary claims and benefits filed by an employee or person employed in domestic or household service whose employment has been terminated and does not seek reinstatement anymore.
Requisites for Valid Exercise of the Adjudicatory Power 1. the claim is purely for recovery of unpaid wages and other monetary claims and benefits 2. the claim is filed by an employee, househelper or person employed in domestic or household service 3. The employee, househelper or person employed in domestic or household service has already been separated from service and does not seek reinstatement anymore 4. The aggregate money claims of each does not exceed P5,000.
- If the requisites are not complied with, the case will fall within the exclusive jurisdiction of the Arbitration Branch of the NLRC.
Adjudicatory Power (129) Enforcement Power (128) Basis The complaint filed by the Inspection result employee Subject Matter Pure money claims Not limited to money claims but extends to violations of occupational health and safety standards Workers Involved Applies only to those employees who have already been separated from service and do not seek reinstatement Applies only to employees who are still in service Amount Involved Limited to money claims not exceeding P5000 Not limited by the amount involved Appellate Body NLRC Secretary of Labor and Employement Period to Appeal Within 5 calendar days from receipt Within 10 calendar days from receipt
Thirteenth Month Pay - Extra remuneration given to employees in an amount equivalent to 1/12 of the basic salary earned by an employee within a calendar year - Must have rendered 1 month service - Only basic salary is considered
Employees entitled to 13 th month pay: 1. all rank and file employees, regardless of their designation or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least 1 month during a calendar year. 2. employees who are paid on piece work basis 3. Employees who are paid a fixed or guaranteed wage plus commission (13 th month pay computed on the basis of total earnings) 4. private school teachers, including faculty members of universities and colleges, provided they have rendered service for at least 1 month within the year. 5. Employees working in two or more private firms, whether on full-time or part-time basis. 6. Employees who resigned or whose services were terminated before the time for payment. (entitled to proportionate 13 th month pay)
Employers not entitled to 13 th month pay: 1. the Government and any of its political subdivisions, including GOCCs except those corporations operating essentially as private subsidiaries of the Government LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 10 2. Employers already paying their employees a 13 th month pay or more in a calendar year or its equivalent. 3. Employers of household helpers and persons in the personal service of another in relation to such workers 4. Employers who are paid purely on commission, boundary or task basis, and those who are paid a fixed amount for performing specific work, except where the workers are paid on piece-rate basis.
Working Conditions of Special Employees Article 40. Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the 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. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. Alien Employment permit valid for 1 year unless employment contract provides otherwise, which in no case shall exceed 5 years.
Persons exempted from Securing and Alien Employment Permit a. All members of the diplomatic services and foreign government officials accredited by and with reciprocity arrangement with the Philippine government b. Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines c. Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation d. All foreign nationals granted exemption by law e. Owners and representatives of foreign principals, whose companies are accredited by the POEA, who come to the Philippines for a limited period solely for the purpose of interviewing Filipino applicants for employment abroad. f. Foreign nationals who come to the Philippines to teach, present, and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that exemption is on a reciprocal basis g. Resident foreign nationals
Grounds to Suspend Alien Employment Permit (AEP): 1. the continued stay of the foreign national may result in damage to the interest of the industry or the country. 2. the employment of the foreign national is suspended by the employer or by order of the Court.
- Petitions for suspension of AEP shall be resolved within 30 days from receipt.
Grounds for Cancellation of Alien Employment Permit by the Regional Director 1. Non-compliance with any of the requirements or conditions of the AEP 2. Misrepresentation of facts in the application 3. Submission of falsified or tampered documents 4. Meritorious objection or information against the employment of the foreign national as determined by the Regional Director 5. Foreign national has a derogatory record 6. Employer terminated the employment of the foreign national.
Remedy and Relief Remedy means or procedure to redress particular violation of a right Relief compensation for such violation
Ex. Violation of Right (Unjust dismissal) - Remedy complaint for illegal dismissal - Relief reinstatement, backwages
Local employees reinstatement with back wages Overseas workers payment or reimbursement
LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 11 Remedies in case of Suspension, Cancellation or Revocation of Alien Employment Permit: - Motion For Reconsideration, o Filed within 7 days after receipt of order o Regional director shall resolve within 10 days - Appeal o If MR is filed after period of 7 days but not later than 10 days from receipt of the denial, it shall be treated as an appeal o Order of Suspension/Cancellation/Revocation may be appealed to the Secretary of Labor and Employment within 10 days from receipt. o Decision will be final and unappealable.
Apprentices
Article 58. Definition of Terms. As used in this Title: "Apprenticeship" means practical training on the job supplemented by related theoretical instruction. An "apprentice" is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter. An "apprenticeable occupation" means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction. "Apprenticeship agreement" is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training. Article 59. Qualifications of apprentice. To qualify as an apprentice, a person shall: Be at least fourteen (14) years of age; Possess vocational aptitude and capacity for appropriate tests; and Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. Article 60. Employment of apprentices. Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. (As amended by Section 1, Executive Order No. 111, December 24, 1986) TESDA ACT of 1994 j) "Apprenticeship" training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer on an approved apprenticeable occupation;
k) "Apprentice" is a person undergoing training for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement;
l) "Apprenticeship Agreement" is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprencticeable occupation emphasizing the rights, duties and responsibilities of each party;
m) "Apprenticeable Occupation" is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the authority;
Requirements for Employment of Apprentices 1. the employer should be engaged in a business that is considered a highly technical industry 2. the job to which the apprentice will work on should be classified as an apprenticeable occupation. Physical defect is not a hindrance
Highly technical industry a trade, business, enterprise, industry or other activity which utilizes the application of advance technology.
Learners Article 73. Learners defined. Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 12 Article 74. When learners may be hired. Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards. Tesda Act of 1994 n) "Learners" refer to persons hired as trainees in semiskills and other industrial occupations which are nonapprenticeable. Learnersship programs must be approved by the Authority;
Conditions for Employment of Learners 1. the job is semi-skilled or non-apprenticeable and can be learned in a practical way within a period of not more than 3 months 2. There are no available experienced workers 3. The employment of learners is necessary to prevent curtailment of employment opportunities 4. Their employment does not create unfair competition in terms of labor costs or impair working standards
- Persons below 15 cannot be a learner - Persons below 18 can only be employed in non-hazardous occupations
Non-hazardous occupation refer to jobs that do not expose the learner to dangerous environmental elements or to dangerous work conditions.
Article 78. Definition. Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury.
Qualified individual with a disability: An individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires
*if engaged as apprentice, he is entitled to the applicable compensation for apprentices (at least 75% of the minimum wage)
*if not hired as an apprentice? Entitled to the terms and conditions of employment accorded to able-bodied employees similarly situated. In RA No 7277, the Magna Carta for Disabled Persons, Sec 5. Thereof expressly grants qualified disabled persons the right to enjoy the same compensation, benefits and other terms and conditions of employment that an able-bodied employee enjoys.
Section 32 prohibits discrimination against a disabled person in regard to hiring, promotion and other terms and conditions of employment.
Employment of minors Art. 139 has been superseded by RA 7610, as amended by RA Nos. 7658 and 9231.
Minimum Age for employment GR: only 15 years and up EX: 1. When the child works directly under the sole responsibility of his parents or legal guardian and only members of his family are employed therein, provided that: a. The employment of the child neither endangers his life, safety, health and morals, nor impairs his normal development; and b. His parent or legal guardian provides the said child with the prescribed primary and or secondary education 2. when the childs employment or participation in public and entertainment or information through cinema, theatre, radio or television is essential, provided that: a. the employment contract is concluded by the childs parents or guardian, with the express agreement of the child concerned, if possible, and with the approval of the Department of Labor and Employment and b. the following requirements in all instances are strictly complied with: i. the employer shall ensure the protection, health, safety, morals and normal development of the child, ii. the employer shall institute measures to prevent the childs exploitation or discrimination taking into account the system and level of remuneration and duration and arrangement of working time and iii. the employer shall formulate and implement subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. The above exceptional cases, the employer shall first secure a work permit from the DOLE before engaging such child, in order to ensure observance of the above requirements.
Hours of work of working Child and Night work prohibition LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 13 Child below 15 not more than 4 hours a day but not more than 20 hours a week; not allowed to work from 8:00 PM 6:00 AM Children 15 18 not more than 8 hours a day but not more than 40 hours a week; not allowed to work from 10:00 PM 6:00 AM
- No child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drink, tobacco and its by-products, gambling or any form of violence or pornography - No child shall be engaged in worst forms of child labor.
Worst forms of child labor : slavery, prostitution, pornography, illegal activities (i.e dangerous drugs), nature of work in which it is carried out in hazardous or likely to be harmful to health, safety and morals of children
Article 141. Coverage. This Chapter shall apply to all persons rendering services in households for compensation. "Domestic or household service" shall mean service in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family drivers. Article 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties. - Children of house helpers are not covered as house helper if they are not specifically engaged as house helpers. - Initial contract not more than 2 years - If the househelper fails to comply with the stipulater period without justifiable reason, he shall forfeit any unpaid salary due him not exceeding 15 days. On the other hand, if the employer fails to comply with the stipulated period without justifiable reason, he shall pay the househelper an indemnity equivalent to 15 days pay.
When can services be terminated? - For Just cause - anytime - No just cause, before stipulated period obliged to give 15 days pay by way of indemnity - No just cause, no stipulated period the employer can terminate the househelper by giving a notice 5 days before the intended date of termination
RA 10151
Night worker 10 pm 6 am
- Does not include those employed in agriculture, maritime fishing, inland navigation
Rights: - Health assessment free of charge before taking up assignment and when they experience health problems - Right to safe working environment LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 14 Republic Act No. 10151 Republic of the Philippines Congress of the Philippines Metro Manila Fifteenth Congress First Regular Session Begun and held in Metro Manila, on Monday, the twenty-sixth day of July, two thousand ten. REPUBLIC ACT NO. 10151 AN ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS, THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED FORTY-TWO, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Article 130 of the Labor Code is hereby repealed. SEC. 2. Article 131 of the Labor Code is hereby repealed. SEC. 3. The subsequent articles in Boot Three, Title III, Chapter I to Chapter IV of Presidential Decree No. 442 are hereby renumbered accordingly. SEC. 4. A new chapter is hereby inserted after Book Three, Title III of Presidential Decree No. 442, to read as follows: Chapter V Employment of Night Workers Art. 154. Coverage. This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five oclock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers representatives/labor organizations and employers. Night worker means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers representatives/labor organizations and employers. Art. 155. Health Assessment, At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a) Before taking up an assignment as a night worker; (b) At regular intervals during such an assignment; and (c) If they experience health problems during such an assignment which are not caused by factors other than the performance of night work. With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers consent and shall not be used to their detriment. Art. 156. Mandatory Facilities. Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where such workers, LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 15 where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE. Art. 157. Transfer. Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work. If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period. A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. Art. 158. Women Night Workers. Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: (a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth; (b) For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child: (1) During pregnancy; (2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers. During the periods referred to in this article: (i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities. (ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position. Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work. The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave. The provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws. Art. 159. Compensation. The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work. Art. 160. Social Services.Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work. LABOR LAW REVIEW SY 2012-2013 |Lecture 2 of Atty. Ungos |Cheska Bautista 16 Art. 161. Night Work Schedules. Before introducing work schedules requiring the services of night workers, the employer shall consult the workers representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly. SEC. 5. The subsequent articles starting from Book Four, Title I, Chapter I of Presidential Decree No. 442 are hereby renumbered accordingly. SEC. 6. Application. The measures referred to in this chapter shall be applied not later than six (G) months from the effectivity of this Act. SEC. 7. Guidelines. The DOLE shah promulgate appropriate regulations in addition to existing ones to ensure protection, safety and welfare of night workers. SEC. 8. Penalties. Any violation of this Act, and the rules and regulations issued pursuant hereof shall be punished with a fine of not less than Thirty thousand pesos (P30,000.00) nor more than Fifty thousand pesos (P50,000.00) or imprisonment of not less than six (6) months, or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership or association, or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association, or entity. SEC. 9. Separability Clause. If any portion of this Act is declared unconstitutional, the same shall not affect the validity and effectivity of the other provisions not affected thereby. SEC. 10. Repealing Clause. All laws, acts, decrees, executive orders, rules and regulations or other issuances or parts thereof, which are inconsistent with this Act, are hereby modified and repealed. SEC. 11 Effectivity Clause. This Act shall take effect after fifteen (15) days following its publication in two (2) national newspapers of general circulation. Approved, (Sgd.) FELICIANO BELMONTE JR. Speaker of the House of Representatives (Sgd.) JUAN PONCE ENRILE President of the Senate This Act which is a consolidation of Senate Bill No. 2701 and House Bill No. 4276 was finally passed by the Senate and the House of Representatives on May 30, 2011 and June 8, 2011, respectively. (Sgd.) MARILYN B. BARUA-YAP Secretary General House of Representatives (Sgd.) EMMA LIRIO-REYES Secretary of the senate Approved: June 21, 2011 (Sgd.) BENIGNO SIMEON C. AQUINO III President of the Philippines