‘SEDFREY Mt. CANDELARIA Dear LILY K. GRUBA i Associate Doan for Continuing Legal Education and Bar Review Director GIOVANNI F. VALLENTE Associate Dean for Student Affairs ATTY. JORGE ALFONSO MELO ATTY. JESS RAYMUND M. LOPEZ Bar Review Executive Committee LEILA S. LM Bar Review Secretariat ANGELO GARCIA RACHEL GUTIERREZ ANSO ALVANIZ ‘ABI CONTINUADO. ‘CAMILLE SAPRU EZRA CAPUCION KAREN OREO. MAICA JINGCO KYCIA CUE JOEL CONCEPCION HORTENSE VARELA FIELLE IGNACIO oo IRISBELENG LABOR LAW Voluntnare MARIA AVANCERA PAULINE ONGTENCO ‘Design Comes i J ENTRAL wos _govemments, on the time-honored Principle of Salus popull est suprema lox. (Calalang v. Wiliams, 70 Phil 726, 1940). ‘G& What are the rights of employees ‘under the 4987 Constitution? A: The tights to 2 Tho tights granted to employees are 2 To organize: 2. Te conduct collective bergaining ot To humane working conditions; 3. Tea lliving wage; and - To participate’ in policy and Processes affecting their rights and benefits 5 may be provided by taw (Article Xill, sa. 3. par. 2) : What are the fabor provisions in the Constitution? A: There are 6 main provisions regarding labor, t. The State shalt atford full Protection to labor, focal and activities, to security of tenure, humane conditions of work, and to 2 ving wage. Workers shall also private sectors, to form unions, associations, or sociaties for ‘purposes not contrary to faw shail notbe abridged. (Artioia 1H, sec. 8) Q: is the due process clause under the Constitution applicable to iabor cases? : No. The due process clause is 3 limitation on the exercise by the government of ts powers and does not . a Page 1 of 472016 LABOR LAW PREWEEX REVIEWER apply to the'exercise of preregatives of mrivatel entities, suc as the termination of employrnent under the Labor Code. (Serrano v. NLRC, GR No. 117040, Constitutional due process protects the individual fom the goverment and assures hin of his rights in criminal, chil ‘or adrninistrative proceedings: while statutory. due process found in the Labor Code ‘and implementing Rules protects ‘empleyees from being unjustly terminated just cause after notice and ‘Q: 1s employment a property right? A: Yes. The sight of 3 person to his labor is deemed to be his property within the meaning of the. consfitufonat guarantee When a person has no Lon ot tease of thot, wh ion ar means . worker shoukt therefore be protected and insulated against any arbitrary deprivation ‘of is job. {Phiips Semiconductors v. Fadriquela, GR. 141717, 2004). & What iz the difference between tabor ‘standards and labor relations? egregious, cannot violate the a protection guarantee. {Yrasuegu ¥. Pi GR. No, 168085, 2008). Gs What is the principte™ of co determination? A; The principle of co-datemminstion sefers to the right of workers to participste in the policy and decision making and benefits, without intruding into matters pertaining to managernent prerogative. {PAL v. NLRC, GR. No, 85985, 1993). @ Does a closed-shop agreement " violate the constitutional right to self- organization? A: No. The Supreme Coust has nuled that @ closed-shop agreement in a CBA is ‘atid, and is not a restriction of the right of freedom of association guaranteed by the ‘Constitution. (Villar v, inciong, GR. No. L- 50283.84, 1983}. OPER the status: rights; dues: as well as the institutional mechanisms that govem the individual and collective interactions between employees, and their ropreceriaites’ Dee be bea - eniployers and employees i the goat of Aabor law. . AND PLACEMENT: Q: What differentiates license from authority? A: A Ticense is a document Issued by the Department of Labor and Employment {COLE} authorizing @ person or entity to Sperate 3 private employment agency, while an authority is a document issued the DOLE authorizing @ person or location t engage ir ocrubant and placement activities. as 3 pri recrultment entity. (People v. Gasacaa, 474 SCRA 812, 2005}. a a TT a ee@ What are the types of ategat recruitment under the Labor Code? A There are four (4) types of iegal Prohibted practices enumerated under Article 34 of the Labor Coda. (Rolo: v: People, 581 SCRA. 24, . Q: What are the elements of ilegal recruitment in targe scate? individually of a8 a group. (People v. Rea, 698 SCRA 191, 2013). Q@ When is legal recruitment considered economic sabotage? ‘economic sabotage in two (2) instances, 1. committed by 2 syndicate: where 3 or more persons conspire with ‘one another in carrying out ar unlawful or egal transaction of scheme 2 committed fn targe scale: whore committed against 3 of more if 2618 LABOR LAW PRE-WEEK REVIEWER Persons individually or as 2 group, People. Duque, GR Ne 100285, 1992} commits an act that constitutes Megat recruitment? A: The corporation also incurs criminal liability tor the act of its employee or ageat- sot the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent of recruitment agency. (Sunace international Management Services, inc. v. National Labor Relations Commission, 489 SCRA 146, 2006), & What kind of Wability does the foreign employer and recruitment agency share? Ac They are joint and solidary liability. This fe imposed by law against cecratment agencies and foreign employers as a > Page 3 of 47 co a - eae aan2015 LABOR LAW PRE.WEEK REVIEWER immediate and sufficient peyment of what is due him, This isin ine with the policy of ‘the State to protect and alleviate the plight of the working cles. (PF! Manpower Precamonta Ie 4 MAC. 2H See 45%, 1997, Q: What is. the effect of the pre- termination of the contract of » migrant worker? : A He is only entitled to fut reimbursement of the placement fee: with interest at 12% per anuris bus His salaries for the unexpired portiot of Rix’ _ employment contract or for three {3} months for every year of the unexpired farm, whichover tess (RA 10022,.s6c.. While RA 19022, which amended the Migrant Workers “Act revived the “3 months for every year mule, previously deciared unconstitubonal by the Suprema Court, the docttine in Serrano v. Gatlont (GR 187614, 2009) sit stands. A subsequent jaw canngt revive an unconstitutional taw especially @. the. formulation is the same. (Atty. Marion Manuel. @& Gan foreign employers hire a Filipina Worker directly? A”: Under Anicie 18 of the Labor Code, “No employer may hike @ Filipina worker for overseas employment except through the. Boatds and entiies authorized by the Secretary of Labor.” The reason for the ‘ban ig that “e Filipino worker hired dicectly by a foreign employer without government intervention, may not be assured of the best possible terms and conditions of ‘employment. (Alcantara, Philippine Labor aad Social Legisistion Annotated, Vol. 1, P69) See also: Sec. 1. Rule 1, Book Hi, POEA Rules and Regulations Governing ‘Overseas Employment Gr What percentage of the authorized ‘viting capital stock of 2 corporation is tequired to be owned and controlied by Fifpine citizens before being allowed to engage in recruitment and placement sctivitien? A; 75%. This is mandatory and cannot be lessened, except by Congress in a subsequent faw or amendment. (Labor Code, art 27). @: Would a travel agency be allowed to engage in recruitment and placement activities if it was created not for profit but rather to help Filipinos? activities. It dkd not distinguish between those for profit and those which do not derive profit. (Labor Gode, art. 28) G@: What are -the- pre-employment- grounds for disciplinary action by the POEA against overseas workers? ‘At the -pro-emplayment: stage,:.these: are ising: false. information: or: ocuments fora job application: 2. unjustified refusal to depart for the overseas ese ‘assignment he was ghen. (Sea H(A}, Rule Hl, POEA Rules and Regulations}. Q: What are the grounds during ‘employment for disciplinary action by the POEA against averseas workers? the employment stage, these are ~ ‘Commission of & criminal onense punishable by Phifippine or hast country faws; Unjustiisble breach of POEA contracts: Embezzlement of company funds; Embezzlement of money oF property cf fellow workers entrusted for delivery to Telatives ia tha Phitippines: ACAL 1 TA po 40ta7 ~ a gins2035 LAGOR LAW PREWEEK REVIEWER, Violation o* the reigious or sacred sopported by documentary practices afte Host country, profs whkh were not . Brunkenness and disorder considered in the course of Desartn and sbandboren of inspection. . &. Gimited to the Secretary) order B. Immoral activites such as stoppage of work due tonon- Poon compliance with the law oF RR 9, egal gambling that poses grave and imminent 1h, Geging trouble atthe worksite danger to the beatin and safety Liaivcek-avern * of workers in the workplace (@ 42. Inking oF joining 3 strike or work hearing within 24 hours shall Saas | Se ‘+ In case the violation is attributable to ihe ‘employer, he shak pay the employees’ salaries s powers. + See-alsa:. 2043+ Files. an Labor Laws: Campiiance: System: Dept. Order No. 131-13 Employment or his duly authorized representatives (Labor Code, art. 128). 1. Access: te employer's s a an inferior court tesue 3 TRO seconds and premives ot ary Sd the enforcement orders of the fine of me day or net Secretary in fine with his regulatory whenever work is being and visitorial powers? undertaken therein, and 2. the right to copy therefrom, A: “No inferior court or entity shall issue 3. 10 question any employee Ainccany or permanent injunction OF and investigate matters which restraining order or otherwise assurne may be (1) necessary to jurisdiction over any case involving the determine violations or @ enforcement orders issued: in which may aid inthe accordance with this Article.” {Labor enfercerment of labor laws oF Code, art. 128 (G)} 4. toissue compliance orders to G& Who has the power to issue rules give effect to the labor and regulations ia restricting and standards regulating the recruitment and 5. issue writs of execution, placement activities of ait agencies? except in cases where the employer {1} contests the A; The Secretary of Labor. Findings and (2) raises issues ad Ca Page 5 of 47Q: For which offenses is °OEA authorized” to conduct the necessary” proceadings” for the suspension or cancelation of license or authority of any agency or entity? A: {a} The imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee or bond in excess of what ic prescribed by the Administration. {2} Any other violation of perticent _ Provisions of the Labor Code and ‘ther relevant tows, cules and regulations. G What is the Administrator ~uvat -Stpowered to order? ‘A The Administrator was also given the power to order the dismissal of the case or the suspension of the ficense or authority of the respondent agency or contractor or tecommendé to the Minister (now Secretary) the cancellation thereof. @ What is the regulatory power of the DOLE Secretary with regand-..to- recruitment and placement activities of agencies? A: DOLE Secretary shail have the power ‘ter restrict and reguiate the recruitment and placement activites of all agencies within the coverage of this Tile and is hereby ‘authorized to issue ores snd promulgate niles and regulations to carry otjecties and inploment ihe previsors of the Title on Recruitment and Placement of Workers. (Labor Cade, art. 36). Q: What is the visitorial power of the Secretary of Labor? A: The Secretary of Labor or his duly authorized representatives may, ot any time, inspect the premises, books of accounts and records of any person ot entity covered by this Title, require i 10 submit reports regularly on presctibed forms, and sét_on violation “of any provisions of the Tita on Recruitment and 2515 LABOR LAW PREWEEK REVIEWER Placement of Workers (Labor Cade, art. a @: What is the jurisdiction of the Q: Does the Secretary of DOLE have the tight ta Issue search warrants and warrants of arrests? A: The Secretary of DOLE does not haves ‘the power fo issue search warrants and warrants of arrest. (Salazar ¥. Achacoso, @: Canam overseas: worker: sefuser ta remit his earings and instead deposit. the same in his country of work in onder fo avait of higher interest rates? fed to the detriment of the country’s balance of payments end economic. development progeans. Failure ta comoly would result in the imposition of effective sanctions, Q: What are the portions of earnings which workers are mandated to, remit to the Philippines in foreign exchange? Aw 3) Seamen or mariners: 70% of basic salary, b} Workers of Filipino contractors and construction campanics: 70% of basic salary: > Page 6 of 47 Pee2015 LABOR LAW PRE WEEK REVIEWER ‘employment contracts do not provide for free boart and lodging feciities: 80% of basic stacy; 50% of basic salary, 9) Ail other workers not felling under the alorementioned categories: 50% of basic satary. 1, LABOR STANDARDS A. HOURS OF WORK ‘: Who are covered by the provisions ‘on hours of work? A All employees in all establishments and undertakings, whether for profit or not. (kabor Code, ert. 82) @: Who are excluded from the provisions on nours of work? A: There are seven (7) classifications of employees excluded from the provisions: ‘Governmental employees ‘Managerial employees Field personnel Members of the family of the employer who are dependent oa hhim for support Domestic helpers Persons in the personat service of another Workers who ere paid by resuit {Labor Code, art. 82) ‘O: For purposes of the exclusion, what is meant by the term “manageriat employees”? AL Manageriat employees aré those whose primary duly consists of the management of the establishment in pene oe ie" Page 7 of 47 . ne Te ere - whkt they are employed" or of 3 department or subdivision thercot and to ‘other officers or members of the managerial staff. (Labor Code, art. 82) ‘This definition is only for purposes of the exemption and is diferent fom the Q@: What sre the duties and responsibilities of manageriat staff? A: These help determine whether aa employee is part of the managerial staff, excluded from the coverage of the provisions on houts Df work (Penaranda v. Baganaga Comp., GR. 189577, 2006). ‘Q: Who are field personnel? A: Field personne! are non-agricuturat employees who reguiarly perform their duties away trom the principal place of business ot branch office and whose actual hours of work in the field cannot be determined with reasonable certainty. (Labor Code, art, 82)7015 LABOR LAW PRE-WEER REVIEWER presence at the place of work oF b. I the interval is too brief to be ullized effectively and gpinfuly in the employee's ‘wn interest, ‘Q: What are the exceptions to the What are the cormat hours of work? Ac Nonmat work hours shail not exceed 8 hours a day. (Labor Code, ort. 83) Anyting beyond & hows & considered G: When is waiting time considered as. working time? ‘normal hours of work? A Woiting time spent by an employee A: The exceptions are ~ shall be considered as working fime if: 1. Compressed Work Week 1 Wating is an Integral part of his 2, Heath personne! 2:-TNe ahpiopee is. rquked or G: What is 2 Compressed Work Woek engeged by ths employes fo wait, (owy7 G: What are some guiding principles in A: A compressed work wask schema is determining number of hours worked? ‘one wherein the normal § day workweek {8 compressed to 5 days, which may resul A: There are several principles which must in mora than an 8-hour workday. No ‘be taken into consideration: gvertine pay would be paid for the 4. Alt hours are hours worked which the employee is required fo give Rig employer, regardless of whether or not such hours are . Spent in productive labor of involve Bhysical or mentat exertion. 2. An-emplayes. need not. leave.the.’ ©: What are the benofits of 2 CWW?™- A The CWW scheme would lessen ‘transportation costs, give the worker an extra-day. of:resk..and. Jessen: meahand*. snack expenses, G: What-standanis-must-be met for-a--- stops valict compressed work week? completely, and may ieave the A According to the Department Advisory ‘WW schemes workpiece. 3. the work performed was Opinion No, 32-2004, necessary or it benefited the = must ‘counted, it being sufficient that he working, may rest employer, of the employee could not abandon his work at the end of his normal working hours because he had no replacement, sll time spent for such work shall be considered as hours workad if the work was with the knowledge of his employer or supervisor. 4. The time during which an employee is inactive by reason of interruptions in his work beyond fis controf shall be considered working time if either of these conditions is present: & The imminence of the resumption of wark requires the employee's La 1. Resul from an express and voluntary agreement of the majority of the covered emplayees. in firms using substances and ~ processes that prolonged exposure to which may pose hazards to the employee's health or safety, there must be certification that work beyond B ‘hours #8 within the threshold licits to exposure. 3. Employer must natily DOLE, through the regionat office, af the CW scheme. This, must follow the CWW Report Form of DOLE. i a Page 8 of 472018 LABOR LAW PREWEEK REVIEWER and end wore at any hour. cavany day but. would not work for mote than 8 hours in @ day, nor more than 40 hours in one weak. ‘@ is there overtime work for hospital and elinic personnel? ‘A: Yes. Hospital and clinic personnet bbe scheduled to work for more than Gays of 40 hours in @ week, buf they must be paid for overtime work of at least 30% Of the hourly rate, per hour of overtime werk. Q: What Rappers if 2 brownout occurs? oo. A: Genesaily, brownouls are not Inchided. in hours worked. The exception is if a CBA, provides for it. @ What are the rules governing compensability during brownout? Ac} a worker's work is interrupted dus to brownout and — az ‘ brownaut doas not exceed. 20 minutes, i wit be treated as hours worked 2 brownou! exceeds 20 minutes and he employees can leave freely, won't be: 3. brownout exceeds 20 minutes and the employees can use the time however they want, it won't be compensable in gach case, the employer extend: the working hours of his employees outside the regular schedules, 19 A On calF time is the time when an employee is required to semain on call in the employer's premises or so close thereto that he cannot use the time atfectively or gainfully for his own purpose. ~~~ This is considered as part of hours: worked, ‘C:..Can the right.to,claim.avertime: pay. bewaived? At No: The-tight to clair overtime: pay-is- govemed by law and not merely by the: agreement of the parties, -Q: is there. an exception? A Yes. if the waiver is done in exchange for certain vatuable privileges whic compensate for such work, the waiver may be valid. if there is a stipulation regarding builtin overtime pay, duly approved by DOLE, then the non-payment of avertime is valid. ~ Q: What are the conditions to be entitled to OT pay? Actual rendition of OT work. ‘Submission of sufficient proof that said work was actually performed ‘OT work is with the knowledge and consent of the employer ! Ney Page 9 of a7,2015 LAGOR LAW PRE-WEEK REVIEWER Emergency Completion of wark started before the 8th hour and is necessary to prevent ‘serious obstruction or prejudice fo the business Urgent wore to be performed on Machines to avoid serious loss or “A On ordinary days, at least 25% of the. hourly rate, per hour of work in excess of ‘ight (6) hours. (Labor Code, art. 87). On scheduled rast days and holidays, at. Jeast 30% of the hourly rate, per hour of work in excess of eight (8} hours. The overtime pay may be increased by ‘stipulation beyond the minimum rate required by taw. (PNB v. PNB Assn, 115SCRA 507, 1982). '@ How do you compute for overtime pay? A First, determine the hourly rate, ie, Regular Wage Rate {8 hours = Hourly ‘Then, apply the appropriate overtime rate, ie, Houfy Rate x Overtime Rate x umber of hours of OT work = Overtime Pay. @: How much is an empfoyee eatitied to for night shift differential? A: 10% of the noutly cate, per héur of week between 10 p.m. and 6 am. a i> Page 10 af 47 . Fore B WAGES 1G: What makes up reguiar wage? AL Inchsdes the cash wage only, without deduction on account of facilities provided by the employer. @: What is the coverage of the Provisions on wages? A These coves the minimum wage rates prescribed by-law:-which shall be basic employees enjoy free of charge aside from the basic pay. : What are exchised from wages? A COLA profitshasing payments, premium payments, 13° month pay or ‘other monetary benefits which are not ‘conskiered a5 past of ar integrated into the regular salary of the worker, as weil as payments for leaves, nighti differential, regular hotay pay and premiums for holidays: are excluded: Q: Who are inchided ir the provisions: ~ for wages? Ae le on wanes apples to at When can it be said that there is a diminution of benefits? A There is diminution of benefits when it is shown that: 1. the grant or benefit is founded on a policy or has sipened into 3 praction aver a long period of time the practice is consistant and selberate the practice is not due to error in the construction or application of a doubtfil or difficult question of law me2015 LABOR LAW PRE-WEEK REVIEWER ee er LR, 4. diminution or discontinuance is (Supreme Stoel ¥. Nagkakeisang Meragegewe, GR Wo. 185504 4. Wher the deductions rre with the wetter authorization of the ‘employee for payment to 2 thied person and the employer agrees to ‘do 50, provided that the fatter does not feceiva benefit for the recompense the employer for the amount paid by fim as premium + {far the insurance: @: May an employer deduct froin an ‘transaction ‘employes’s wages without consent? 5. Deductions for value of meat and other facilities Ac An employer, by himself or through his 6. Deductions for premiums for SSS. representative, is prohibited fram making Phimeatth, employees’ ‘any deductions from the wages of his compensation and PAG-IBIG employees. The employer is not allowed 7. Withholding tax vdovmake unnecessary deductions without 8. Employee's debt to employes, 7 +s the: knowledge or authorization of the which is due and demandabie ‘e-einployees. 8 court against a wosker G: What deductions are atlewed under mde chowestantas whee the Acticie 1137 wages may be the subject of - -aftachment or execution but only A Article 413 provides for 3. allowable for debts incurred for food, deductions: clathing, shelter and medical 1. Jp cases where the worker ia assistance inowred with hic consent by the 10.When deduction fiom wages is ‘employer, and the deduction is to coxdefed by the court 41. Salary deductions trom a: member of = fegally established 2, Forunion dues, in cases where the. 0. <> Zight of the worker or his union te O:Whatirawage:distortion® » - A: A wage distortion isa situation where-- i ‘an increase in the prescribed wage rates 3. In cases where the employer is results in the elimination or severo contraction of intentional quantitative issued by the SOLE. differences in wage of salary rates between and among employee groups in & What are the other deductions an establishment as te effectively allowed? obfterate the distinctions embodied in such wage structure based on skits, A: The Labor Code and other fawe provide —_tength of service, of other logical bases of for other allowabie deductions: sifferentiation. 1. Deductions for foss or damage under Article 144 Q: What are the elements of a wage 2. Deductions made for an agency distortion? fee from non-union membess who A: The elements are: soept the benefits under the CBA negotiated by the recognized or certified ‘anion, This : oY Page 11 of 47, 1. An existing hierarchy of positions with corresponding salary rates; 2. A significant change in the salary fala of a lower pay class without & coricomitant increase in the salary rate of a higher one;@: How would one correct a wage distortion? A: The folowing are veld ways for correcting a wage distortion: 1. By voluntary arbitration after NLRC, 234 SCRA 311, 1994), G: Whatis a bonus? A: A bonus is an amount granted and paid to an employee for his industry and Joyeity which contributed to the success ot the employers business and made possible the realization of profits. ft is an act of genorosity for which the employes should bs grateful, @ is a bonus demandable and enforceable? A: From a jegal point of view, a bonus is not demandable. it becomes 5o when itis made part of the wage or salary or compensation. in that case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profits. Without ‘profit, na bonus. (Luzon Stevedoring v. CIR, GR L-17471, 1988). : Can an employee volunteer to work on his rest day? A: Yes. This must, however, be in writing, subject to payment of additional compensation. i) Page 12 of 47 SaaSA Regular rate + at feast 30% premium pay. Q: What are the instances when the Emergency Rest Day Work is valid? AC{CLEEFS) 1. Nature of the work must be ‘Gontinvousty for seven (7} days in 3 week os more: and 2. Urgent work 16 be perlormed to 3. Actual oF impending Emergencies of force mejewe of imminent Sanger to public safety; 4. Necesssry to aval, of Bevironmental conditions. G: What is the effect of RA. 9492, 5. fo prevent serious loss of implementing the scheme of “holiday Borishable goods, economics", on the date of the ~ 6. Abnormal pressure of work due to holidays ‘Special circumstances, 10 other ? Ordinary measures: & The new law does not change the names, meaning of significance and the historieat-itates: of the- regular and-speciat>-—~ BD. HOLIDAYS ‘holidays. What & does is only to create no- Mondays for some of those hotkeys. - @ What are the different rates of or Premium pay? @& Gan and an andar into an agreeoent reucing oF percentage provided for night differential pay, ‘overtime pay, and premium pay? A While asa generat rule, the parties may enter into any Kind of stipulation in a Unworked [100% except In ‘contract and the sare shail be considered etait and service as the law between them, however, it establishments mac! £2 emphasized wat a labor contract employing less, fs not an ordinary contract since it is than 10 workers impressed with public inferest. Thus, the Falling on | Worked [First 27+ 30% parties are prohibited to enter into any rest day hours | af 200% ‘stipulation which may result in the Excess + 30% reduction of any employee benefits. in of the instant case, the seduction by the hourly employer, even with the consent of the ate employee, of the legally mandated Unworked | 100% night ditfereatiat pay, overtime pay and Nay PTs S Page 13 of.‘(Republic 117460, 1997). F. SERVICE CHARGES ‘Q: What are the rules on distribution of service charges? Az 4. 85% distibuted equally among the ‘employees: 2.15% for the disposition by. once every 2 weeks oF twice @ month at intervals not exceeding 16 days. 3. Supervisors share in the 15%. Labor Code speaks of “management” and not “managerial employee.” G. 12 MONTH PAY AND OTHER BONUSES: @: Who are entitied fo claim 13" month ‘pay and other bonuses? 2015 LABOR LAW PRE-WEEK REVIEWER A: Alt employers are required to pay ail ~ their rank-and-file employees; 2 13th, month pay sot later than December 24 of every your. @: Who are excluded from the 13° ‘month pay and ather bonuses? A: The following are excluded: 1. Government and any of its politicat subdivisions, including GOCCs. except those corporations operating essentially as private subsidiaries of already "employees 13th month pay of more ink a calendar year of its equivalent at the time of issuance of PD 851 NOTE: “Its equivalent” ~ includes ~ Christmas bonus, mid-yéar bonus, cash bonuses and other amounting fo nol less than 4/12 of the basic satary but shall nat inciude cash and stock dividends, COLA and. all other allowances regularly enjoyed by the employee 3s well as nan-monetary * benefits, 32 Employers’ of househokd: helpers and persons: in: the: personal: service: of ‘another in relation to such workers 4. Emplayers of those whe are paid on coraimission, boundary, of task basis, and those who are paid a fixed amount for performance of a spacific work, irrespactive of the time consumed in ‘the performance thereof > EXCEPTION: where the workers are pal on 2 piece rate fasis, in which case the employer | shall grant the ues 43th month pay 10 such workers. H. NIGHT WORK RA 1015t (An Act allowing the Employment of Night Workers) repeaies Article 130 and 131 of the Labor Code. ‘The pertinent matters are as follows.Whois aight worker? AL A night worker is any employed person whose work naquires performance of @ substantial number of hours of night work which exceeds a specified fit. Q: Whe are covered by the provisi on night work? mene A: Ail persons wha shall be employed or ermitied of suffered to work at night. & Who are excluded from the provisions on night work? jess than 7 consecutive hours, inchuding ‘the interval from midnight until Sam, to be determined by the SOLE after consulting the workers’ tapresantatives and employers. Q: What are night workers entitled 107 Ac Under RA. 10154, the. new. taw.on. night work, they are entitled to ~ 4. A health assessment, at their fequest, without charge, and to recaive advice on how to reduce health problems associated with their work. & Before taking up assignment as niightwasker, oF b. AL reguier intervals during such assignment, or c.f they experience heath problems during such an assignment which are not coused by factors other than the performance of nightwear. 2. Mandatory faciities 2. Suitable first ad facies , Arrangements where workers, when necessary, can’ be atvinediately taken to a place for appropriate treatment Lay 2018 LABOR LAW PRE-WEEK REVIEWER ©. Safe ang healtiiel working conditions. Resting quarters ‘Transportation fo and from work fo nearest point to sesidentce. f These are subject to guidefnes and exceptions by DOLE Q: What if someone is certified unfit for nightwork? A; They should be transferred, whenever practicable, to anottier job similar to their ‘Old one. if not practicable, these workers they should be granted the same benefits _as other workers unit for work, Af the unfitness is temporary, he enjoys the same protection against dismissal or notice 3s other workers prevented from work by reason of heath @: What if'a. woman is pregnant? po A: The, amendment by RA 4015¢ dictates that measures shall be taken ta 4. before or aller childbirth, for & period of af feast 16 weeks, which Shalt be divided between the tine: ‘before and after childbirth; 2. for additional periods ia respect of which a medical certificate is. produced stating that said additional periods are necessary for the health of tho mother or the i= @ during pregnancy: b. determined by DOLE after consultation with employer and labor representatives Q: When are pregnant women allowed to work at night? A: Only if a competent physician other than the-company physician shall certify their fitness to render aight work, and2645 LAGOR (Ai PREWEEK REWEWE! cee ee EEE specify the period of the preanancy that~ they can sstely work. A 4. MINOR WORKERS @: What are the conditions in order that a child below 15 years of age is allowed to work? A: The following conditions must be met: 4. Must be directly under the sole supervision of his parents or guardian {labor Code, art. 139} Candiét be made to work for more than 20 hotire week ‘Work shalt not be more than 4 hours perday Stevld nat work between pm and Work is not hazardous oF deleterious. fo the child's heath or morals (R.A 9231, Sec. 3} 2 a 4 5 4. EMPLOYMENT OF HOUSEHELPERS @: Whar are the rights of househelpers? A: (CO-THIN-E-LOVE) 4. Reasonable Gompensetion {minimum 2 amos) Gontract for household sesvice shalt NOT EXCEED 2 years ~ renewable from year to year - Termination only for just cause Just and Humane treatment indemnity for unjust termination of service ‘Not to be assigned to non-household work PN ore Euneral expenses must be paid by the employer if the houschelper has no ploce where the head of the family ves. Lodging, Food = and = Medicat aiiendance TO-Right not to be required: to work for more than 10 hrs. 2 day ~ if the househelper agrees to work Qvertime and there is additonal compensation, the same is permis 11. Right to 4 days Vacaton each month with pay ~ if the hefper does not ask for the vacation, the number of vacation days cannot be accumulated, hhe 13 only entitled only to iis monetary equivalent. 12. i under 18 years, an opportunity for at feast elementary Education — cost of which shall be pert of househelper's ‘orapensation K. EMPLOYMENT OF HOMEWORKERS Q: What are the mules on deductions? A: No. employee, contractor, or sub- ‘contractor shall make any deduction from the homeworker's eamings for the vate of materials which have been fost, earnings in a week. L. APPRENTICES AND LEARNERS Note: RA 7796 has transfered the authority over apprenticeship of the DOLE to the TESDA it emphasizes TESDA's approval of the apprenticeship program as 8 preveqisite for the firing of apprentices. (Century. Canning ‘Corporation v. CA, 539 SCRA 50%, 2007) ee Page 16 of 47 _ WS¢ GR. Na, 187320, 2017), @: How do you differentiate apprentices from learners? a 1. Practical Training. Both leamership ‘and apprenticeship involve practical {raining on-the-job. 2. Training: Agreement. Leamarship. is. 4, Theoratical instructions. Leamership may or may not be Supplemented by relates ineoretical instructions; while apprenticeship should always be supplemented by related theoretical instructions. 5. Ratio of theoretical fastructions and ‘onthejob training. For both feamership and apprenticeship. the normal ratio is one hundred (100) hours of theoretical instrictions for ‘every two thousand {2,000} hours of practical or on-the-job training. Theoretical struction time for ‘occupations zequiring fess than two thousand (2,000) hours for proficiency stondd be comptes on the besis of 6. Competeney-bssed system. Ustka feamership that it be implemented based on the TESOA-approved compatency-based system. 7. Duration of training. Leamership involves practical training on the job for a pesiod not exceeding three (3) ‘months; while apprenticeship requires proficiency, more, than.three (3) months but not over-six (6} months ‘of practical training on the job. 8. Qualifications. The iaw does not expressly mention any, qualifications for jeamers; while “the following ‘qualifications are required fo be met by apprentices under Article 59 of the Labor Code: 2. Be al least fourteen (14) years in apprenticeship, in jeamership, the taw, Article 74 of the Labor Code, expresity prescribes the pre-requisites before learners may ba ‘validly employed, to.vit: a. When no experienced workers: are available; b. The employment of leamers is neceseary to—_—prevent curtailment of employment pportunities; ¢ The employment does not create vnfait competion in femns of labor costs of impair ‘or ower working standards. 10.Limitation on the number of trainees. in jearnership, a participating enterprise is stowed to teke in leamers only up to a maximum of twenty percent (20%}" of ts total regular workforce. No similar cap iS imposed in the case of apprenticeship. a : : a Page 17 of 47M. HANDICAPPED WORKERS: : What are the rules on handicapped workers? % Handicapped workers may be. ermlayed wen: ‘opportunities 2. Does sot create untair competition in labor costs 3. Does not impair or tower working standards, No disabled person shalt be denied aorese te corertlies, for matte employee shall be subjett to sare tet and conditions of employment and the ‘same compensation, privileges, benefits, fringe benefits, incentives of allowances 8 & qualified able-bodied person, TERMINATION OF EMPLOYMENT Q: How do you determine the existence ‘of an emptoyer-employes relationship? A The tests are: 1. Fourfold tests to determine EER (2) Payment of wages {b) Hising e} Frio, {@} Control (over meant and resut) 2 Economic Relations Test {secondary test) ~~ (a) Payment of PAGIBIG Fund ‘canitibutions 4b) Payment remittsnce of contributions to the State insurance Fund {e) Deduction of withholding tox (d) Deduction remittance of SSS 2015 LABOR LAW FREWEEK REVIEWER Qs Does the DOLE Secretary have the power to decide whether or not an employer-employee relationship existe? A. No. The existence of an employer ‘employee relationship is a matter which is not easily determinable from an ordinary inspection. in the exercise of its visitorial ‘ang enforcement power, the DOLE has to make a determination of thie existence of ‘an’ employer-ermpioyee relationship. This - datermination is not co-extensive with the existence: employer- felatinship is stit primarily Jodged wath the NURC. This is the meaning of the clause “in cases where the relationship of -employer-employee stil exists” in At. 128 (b}. (Paople'’s Broadcasting v. Secretary of DOLE, G.R. No. 179652, 2003). @: How do you _ differentiate managerial, supervisory, and rank-and file employees: - : & - ‘+ Managesial-employee: — one-who- Is vested with powers or prerogatives 10 fay down and execute management Tey-off, recall, discharge, assign, of ‘Giscipine employees + Supervisory employee — one wha, in # the exercise of such authority is not merely routinary of clerical ia nature tout requires the use of independent judgment + Rank-and-file employee — one who is not covered by the definitions of managerial and supervisory ‘employees (Labor Code, art. 252 (rn}}_machinery, toots or | investment in the 2. Tho workers recruited end placed equipment drectly | form of machinery, by such person are pesforming oF intended tobe | tools or equipment activities which are directly related selated to the job 10, the:;principal business of the contracted: emplorer:{Sy v. Fairland, G.R 1898582017). caries an ‘haa no independent, jadependent business O: What are the effects of fabor-only business different eontracting?. from the employer's | . A: Worker supplied by agency (contractor) undertakes to | "performs activities becomes emplayae of the client compary. perform the job | directly related to Client company is liable to the worker as if under its own | the main business he/she had been directly employed. aecount and of the principat (P8Cam v. NLRC, GR. Ma. 66598, 1986). responsibity, FREE from the Furthermore, | agency:hired employee principal's contrat becomes ented to benefits under the NGEERexcspt | Prncipal Wesied as | CBA:cf cant. company. (Tabas, etal. when the contractor | direct employer of California Manufacturing: Company, Inc or subcontractor | the person recruited GR. No. 80880, 1995). falls to pay the atl instances : What te a bilateral ip. ta employees’ wages. | {contractor is a relationship. deemed agent of job contracting? the principal) UMITED Tebiity | Principal's fabinty A It refers to a job contracting oF (principal soldarily | extends to all rights, subcontracting arrangement whvers there Table with | duties and liatiities | is & contract for @ specific job, work or contractor oF under fabor service between the principat ond the subcontractor only | standard lows contractor, and a contract of employment when latter fails to | including the right i comply with} to. oon between the contractor and its workers. feavmerents 09 te + 3 parties involved in coatracting or unpaid wages and ‘other Subcontracting arrangements: jabor ~ who decides to Sangarts farm out the ob, wok or BERMISSILE PROHIBITED 2, See IO 8 contrat is tho capacity to independently undertake the patfarmance of the job, work or service 3. workers = who sr@ encaged by the contractor to i) Page 19 of 47 OPER? -accomplish the job, work. oF ‘senice @: What are the rules on probationary employment? A: General rule: Employment must not exceed § months. Exceptions: ‘a. Covered by an appwenticestia . agreement stipulating 2 longer period - b. Voluntary agreement of parti: {especially wher nature of vod: dequites a longer period) * fs s. The employer gives the employee @ second chance fo pass the standards set (Labor Code, -art-» 281; Marwasa Manufacturing v. Leagardo, G.R, No. 74246, 1989}. ‘Q: What are the rules on students who are allowed to work in their schools in exchange for a free education (is there an employer-employee relationship)? ‘A: There is no EER between the student and. the’. school. college: of. university. where the student work for the totter in" ‘exchange for the privilege to study free of charge. provided the student is given real ‘oppadunity, Including such faciities 28 may be reasonable, necessary 10 finish thei chosen courses under such erangement. (Sec. 14, Rule X Book I fenplomenting Rules of the Labor Code). Q: What is the successor-employer doctrine? A. The ule is that unless expressly assumed, febor contracts such a3 employment contracts and collecting dargaining agreements are rich enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates an action ia personam and does not create any reat right that should be respected by their parties. This conclision draws. its force from the right of an employer to select his employees and to decide when 2U1S LABOR LAW to engage thenr as protected ‘under our Constiution, and the same can anly be restricted by law through the exercise of the police power. AS a general rule, there is no law requiring '@ bone fide purchaser of assets of an ‘concer to absorb in its employ although the purchaser of the assets or enterprise is not legatly bound to absorb the employees of the seller of such assets or entergrise, the parties are Hable to the employees @ the transaction between the parties is colored with bad faith. ‘(Sundonmes Development Corp. ¥. NLRC, 180 SCRA 14, 1989}. « @: What economic components constitute backwages for a rank-and- “file employee? Are these components ‘equally applicable to a managerial employee? Ac An employee illegally dismissed is: entitled to full and reinstatement pursuant ta Article 279 of the Labor Code, as. amended. by RA. GEE: ty An employees whor is-~ unjustly dismissed: from work shalk be. entitled: to reinstatement without joss: of senionty rights and other privileges and te his full backwages, inclusive of from the time fis compensation withheld fram hirn up to the fime of his actual reinstatement. (Labor Code, art 279). 2. An unqualified award of backwages means that the employee is paid at the wage rate at the time of his dismissal. The base figure to be used in the computation of backwages due to the employee should inckule not just the basic salary, but also the regular allowances that he had been recetving such as the cy ving ‘allowances and the 13° month psy mandated under the taw. (Paramount Vinyk Product Corporation v. NLRC, et. ‘GR. 81200, 7998).147651, 1996). 4. A salary increase cannot be interpreted fo'mean an allowance or 2 ‘Saxiag, G.R, No. 164772, 2008). 5. Once there i @ finding of egal dismissal, the components consfituting the award of backwages is the same for managerial and other employees, » Alt. 278 of the Labor Code speaks of “employees”. Where the law does not distinguish, one must. not. also. 6. AS a general mule, the normal consequences of a finding that an employee has been illegally dismissed to the period from his Regal dismissal up ta his actual reinstatement. The two forms of relief ars, however, distinct ‘and separate from each other, Though the gront of reinstatement commoniy carries with it an award of Backwoges, the appropriateness oF non-availabtity ‘of one does not cary wih % the inappropriateness or non-availability of the other. In accordance with Moreno ¥. San Sebastien College (G.R 178289, 2008}, the Court may not onty mitigate, but also absolve entirely, the iabiity of the employer to pay Backwages where gacd faith is evident, Likewise, backwages may be Eliz 2016 LABOR LAW PRE-WEEK REVIEWER withheld from a dismissed employee where exceptional circumstances are availing. @ How do you differentiate project employee from casual employes? A; Project employee — employed for a specific ‘ot undertaking the completion or termination of which has been determined at the time of the engagement His work need not be incidental to the business of the erapioyer, and bis employment may exceed 1-yeat>~ without necessarily making him a-vegular- employee. Meme Casual employes — engaged to perform a {Jeb, work of servica which is incidental to. fhe business of the creployer, and the definite period of his is made known io him at the time of ‘his engagement, His continued employment afier the lapse of 1 year makes his a regular employes. in case of a project employes, his job is coterminous with a spsciic project or phase: thereot.detemined, at. the. time. ot. ‘engagement ofthe employee. itis further =~ required: that. a. termination report be: submitted. al-the nearest . employment. - 1997}. Q: What are confidential employees? A; Confidential employees are those who 4. assist or act in a confidential capacity 2 to persons whe formulate, determine, and —_ effectuate management policies in the field of labor selations. (Tunay Re Pogkakaisa v. Asia Brewery, GR. No. 162025, 2010). Page 21 of 47