- The subject clause creates a sub-layer of discrimination among OFWs whose contract periods are
BOOK I for more than one year: those who are illegally dismissed with less than one year left in their contracts
Ø What is the Operative Fact Doctrine?
- As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is inoperative as if it has not been passed at all. The general
rule is supported by Article 7 of the Civil Code, which provides: Art. 7. Laws are repealed only by
subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or
practice to the contrary.
- The doctrine of operative fact serves as an exception to the aforementioned general rule. In Planters
Products, Inc. v. Fertiphil Corporation, we held: ‘The doctrine of operative fact, as an exception to the
general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional
law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an
operative fact and may have consequences which cannot always be ignored. The past cannot always be
erased by a new judicial declaration.
- The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on
those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a
municipality in reliance upon a law creating it (Yap vs. Thenamaris Ship’s Management and Intermare
Maritime Agencies, Inc.)
Ø How is that related to Labor Laws?
- It was cited in the cases of Serrano vs. Gallant, and Yap vs. Theramaris
Ø In the case of Yap v. Thenamaris, how was the Operative Fact Doctrine applied?
- It was not applied in the case of Yap vs. Thenamaris as it did not fall under the exception (stated
in Number 1) because “to rule otherwise would be iniquitous to petitioner and other OFWs, and would, in
effect, send a wrong signal that principals/employers and recruitment/manning agencies may violate an
OFW’s security of tenure which an employment contract embodies and actually profit from such violation
based on an unconstitutional provision of law.”
What are the similarities between the Gallant case & Thenamaris case?
- The Thenamaris case reiterated the ruling under the Gallant case as regards the issue of the
constitutionality of Section 10 (par 5) of RA 8042
What is the issue in the case of Gallant Maritime?
- Whether Section 10 (par 5) of RA 8042 - “In case of termination of overseas employment without
just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries
for the unexpired portion of his employment contract or for three (3) months for every year of the
unexpired term, whichever is less.” is unconstitutional.
What is the ruling in the case of Gallant?
- The subject clause in R.A. 8042 is unconstitutional for being violative of the Equal Protection Clause
enshrined in the Bill of Rights under Sec.1, Art. III, 1987 Const.
Explain why it defeats equal protection.
shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally
dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and
their monetary benefits limited to their salaries for three months only.
What are the facts of the Gallant case?
- Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd.
(respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract of
Employment with the following terms and conditions:
1. Duration of contract 12 months
2. Position Chief Officer
3. Basic monthly salary US$1,400.00
4. Hours of work 48.0 hours per week
5. Overtime US$700.00 per month
6. Vacation leave with pay 7.00 days per month
- On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded
employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the
assurance and representation of respondents that he would be made Chief Officer by the end of April
1998. Respondents did not deliver on their promise to make petitioner Chief Officer. Hence, petitioner
refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998.
- Petitioner’s employment contract was for a period of 12 months or from March 19, 1998 up to March
19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and
seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23)
days.
- Petitioner filed with the Labor Arbiter (LA) a Complaint against respondents for constructive dismissal
and for payment of his money claims in the total amount of US$26,442.73.
- The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and
awarding him monetary benefits, to wit:
- WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of
the complainant (petitioner) by the respondents in the above-entitled case was illegal and the
respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine
Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT
THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00), representing the
complainant’s salary for three (3) months of the unexpired portion of the aforesaid contract of
employment.
The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of
merit.
In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary
period of three months only — rather than the entire unexpired portion of nine months and 23 days of
petitioner’s employment contract – applying the subject clause. However, the LA applied the salary rate
of US$2,590.00, consisting of petitioner’s “[b]asic salary, US$1,400.00/month + US$700.00/month, fixed
overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month.”
Respondents appealed to the National Labor Relations Commission (NLRC) to question the finding of
the LA that petitioner was illegally dismissed.
- The NLRC modified the LA Decision and corrected the LA’s computation of the lump-sum salary
awarded to petitioner by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because
R.A. No. 8042 “does not provide for the award of overtime pay, which should be proven to have been
actually performed, and for vacation leave pay.
Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of
the subject clause. The NLRC denied the motion. Petitioner filed a Petition for Certiorari with the CA,
reiterating the constitutional challenge against the subject clause. After initially dismissing the petition on
a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution which
granted the petition for certiorari,filed by petitioner.
The CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted
the constitutional issue raised by petitioner. His Motion for Reconsideration having been denied by the
CA, petitioner brings his cause to this Court on the following grounds:
- The Court of Appeals and the labor tribunals have decided the case in a way not in accord with
applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back
wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3)
months. Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the
Court of Appeals gravely erred in law in excluding from petitioner’s award the overtime pay and vacation
pay provided in his contract since under the contract they form part of his salary.
The Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional
question raised therein.
Ø Facts of Yap v. Thenamaris. He was entitled to how much?
- Claudio S. Yap was employed as electrician of the vessel, M/T SEASCOUT by Intermare Maritime
Agencies, Inc. in behalf of its principal, Vulture Shipping Limited. The contract of employment entered
into by Yap and Capt. Francisco B. Adviento, the General Manager of Intermare, was for a duration of 12
months. On 23 August 2001, Yap boarded M/T SEASCOUT and commenced his job as electrician.
However, on or about 8 November 2001, the vessel was sold. The Philippine Overseas Employment
Administration (POEA) was informed about the sale on 6 December 2001 in a letter signed by Capt.
Adviento. Yap, along with the other crew members, was informed by the Master of their vessel that the
same was sold and will be scrapped.
- Yap received his seniority bonus, vacation bonus, extra bonus along with the scrapping bonus.
However, with respect to the payment of his wage, he refused to accept the payment of one-month basic
wage. He insisted that he was entitled to the payment of the unexpired portion of his contract since he
was illegally dismissed from employment. He alleged that he opted for immediate transfer but none was
made. He then filed a complaint for Illegal Dismissal with Damages and Attorney’s Fees before the Labor
Arbiter.
- The LA rendered a decision in favor of petitioner, finding the latter to have been constructively and
illegally dismissed by respondents. The NLRC affirmed the decision but held that instead of an award of
salaries corresponding to nine months, petitioner was only entitled to salaries for three months as
provided under Section 10 of R.A. No. 8042. Petitioner however questions the award of wages and assails
Sec. 10 of R.A. 8042 as unconstitutional;
- The petitioner is awarded his salaries for the entire unexpired portion of his employment contract
consisting of nine months computed at the rate of US$1,430.00 per month
Ø If you were that migrant worker, and you feel that your contract was terminated without valid
cause, do you have a cause of action?
- Yes, I have a cause of action. I shall likewise be entitled to the full reimbursement of my placement
fee and the deductions made with interest at twelve percent per annum, plus his salaries for the unexpired
portion of my employment x x x an OFW who is illegally dismissed from work is now entitled to monetary
benefits equal to his basic salary multiplied by the entire unexpired portion of his employment contract
(Serrano vs. Gallant Maritime Services, Inc.)
Ø Where would you file your claim?
- The Labor Arbiter (NLRC). The Labor Arbiter has the original and exclusive jurisdiction over
money claims arising out of an employer-employee relationship by virtue of any law or contract involving
Filipino workers for overseas deployment including claims to actual, moral, and other forms of damages;
cases are to be decided within ninety (90) calendar days after filing the complaint.
Ø Can you file with the POEA?
- It depends on the cause of action. The POEA has quasi-judicial power over certain labor cases
and retains original and exclusive jurisdiction to hear, and decide:
1. All cases which are administrative in character, involving or arising out of violations of rules and
regulations relating to licensing and registration of recruitment and employment agencies;
2. Disciplinary action cases and other special cases, which are administrative in character involving
employers, principals, contracting partners and Filipino Migrant workers (Rule X, Sec. 6, IRR of R.A. No.
8042 as amended by R.A. No. 10022)
Ø With respect to migrant workers, what jurisdiction does the POEA have?
- The POEA, on the other hand, retains original and exclusive jurisdiction to hear, and decide:
1. all cases which are administrative in character, involving or arising out of violations of rules and
regulations relating to licensing and registration of recruitment and employment agencies;
2. Disciplinary action cases and other special cases, which are administrative in character involving
employers, principals, contracting partners and Filipino Migrant workers (Rule X, Sec. 6, IRR of R.A. No.
8042 as amended by R.A. No. 10022
MIGRANT WORKER’S ACT
Ø Who is considered an OFW?
- [An] “Overseas Filipino worker" refers to a person who is to be engaged, is engaged or has been
engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel
navigating the foreign seas other than a government ship used for military or non-commercial purposes
or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker.
(R.A. No. 8042 as amended by R.A. 10022, Sec. 2)
Ø What is the previous definition of OFW?
- Migrant Workers or Overseas Filipino Workers – a person who is to be engaged, is engaged, or
has been engaged in a remunerated activity in a state which he or she is not a legal resident. A person
to be engaged in a remunerated activity” refers to an applicant worker who has been promised or assured
employment overseas and acting on such promise or assurance sustains damage and/or injury. (R.A.
No. 8042)
Ø What is the difference between the two?
- The previous definition of OFW is encompassing and broader in scope; the older definition did not
specifically include the distinction between land-based and sea-based workers (?)
Ø What are the two types of OFWs? Ø What is repatriation?

1. Sea-Based or Seamen - those employed in a vessel engaged in maritime navigation; - To send back an individual to one's country of origin.
2. Land Based - contract workers other than a seaman including workers engaged in offshore activities
whose occupation require that majority of his working or gainful hours are spent on land Ø Circumstances for forced repatriation?

Ø You are a legitimate OFW, what are your benefits under the law? 1. Mandatory Repatriation of Underage Migrant Workers
- Upon discovery or upon being informed of the presence of the migrant workers whose actually ages
1. Compulsory Insurance policy: fall below the minimum age requirement for overseas deployment (SEC. 16, RA 8042)
A. Accidental death
B. Permanent total disablement Ø Effect if OFW turns out to be a minor
C. Repatriation cost of the worker when his/her employment is terminated w/o any valid cause
D. Subsistence allowance benefit - Upon discovery or being informed of the presence of minor migrant workers:
E. Money claims arising from employer’s liability
F. Compassionate visit 1. The responsible officers in the foreign service shall without delay repatriate said workers and advise
G. Medical evacuation the DFA through the fastest means of communication available of such discovery and other relevant
H. Medical Repatriation (Sec. 23, RA 10022) information;

2. Loan Guarantee Fund
a. Pre-Departure Loans- Loans granted to departing migrant workers covered by new contracts to
satisfy their pre-departure requirement
b. Family Assistance Loans
3. Loans granted to currently employed migrant workers or their eligible dependents/families in the
Philippines to tide them over during emergency situations (Rule XV, RA 10022)
4. Legal Assistance Fund
- To provide legal services to migrant workers and overseas Filipinos in distress
Ø Under the law, when is a compassionate visit allowed?
- When a migrant worker is hospitalized and has been confined for at least 7 consecutive days, he
shall be entitled to a compassionate visit by 1 family member or a requested individual. (Sec. 23(g), RA
10022)
Ø Who will shoulder the expenses?
- The insurance company will shoulder the transportation cost of the family member or requested
individual to the major airport closest to the place of hospitalization of the worker. It is, however, the
responsibility of the family member or requested individual to meet all visa and travel document
requirements
2. The license of a recruitment/manning agency which recruited or deployed the minor migrant worker
shall be automatically revoked and shall be imposed a fine (Php 500,000.00 -1,000,000.00);
3. All fees pertinent to the processing of papers or documents in the recruitment or deployment shall
be refunded in full by the responsible recruitment/manning agency, without need of notice, to the
underage migrant worker or to his parents or guardian.
4. The refund shall be independent of and in addition to the indemnification for the damages sustained
by the underage migrant worker (SEC.16, RA 8042)
5. Refund shall be paid within 30 days from the date of the mandatory repatriation.
Ø Can the OFW resist or refuse repatriation?
- Yes. The Philippine government cannot compel any OFW, even if it invokes its inherent police
power. It is the individual’s basic right to choose for himself and there is no Constitution nor statute that
can override his fundamental freedom of choice. It is his own life and livelihood that are at stake. And he
cannot be deprived of these without due process of law.
Ø Joint and solidary liability of employer and agency
- The liability of the principal/employer and the recruitment/placement agency for any and all money
claims shall be joint and several.

Ø Will that not be covered by compulsory insurance? - This provision shall be incorporated in the contract for overseas employment and shall be a condition
- It is covered by the insurance company; it shall pay for the transportation cost of the family member precedent for its approval. The performance bond filed by the recruitment/placement agency shall be
or requested individual. answerable for all money claims or damages that may be awarded to the workers. If the
recruitment/placement agency is a juridical being, the corporate officers and directors and partners as
Ø What benefits are included in the compulsory insurance? the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for
1. Accidental death the aforesaid claims and damages. (SEC. 10, RA 8042)
2. Permanent total disablement
3. Repatriation cost of the worker when his/her employment is terminated without any valid cause Ø You are the affected employee and you want to file a case, will our courts or agencies acquire
4. Subsistence allowance benefit (for migrant worker involved in a case or litigation for the jurisdiction over the foreign company? How?
protection of his/her rights in the receiving country)
5. Money claims arising from employer's liability which may be awarded or given to the worker in - Yes, by serving the summons to the local recruitment agency who is the agent of the foreign
a judgment or settlement of his or her case in the NLRC company. Under the doctrine of imputed knowledge, the knowledge of the agent is attributed to the
6. Compassionate visit principal. Thus, by serving the summons to the agent of the foreign company, our courts or agencies will
7. Medical evacuation acquire jurisdiction over the foreign company.
8. Medical repatriation.
Ø Is there any provision in the law which covers this particular situation?
- Within the common law of agency, doctrines of imputation govern when a principal is treated as - Labor laws are designed to meet the daily needs of the workers while social legislation involves
knowing what it’s agents know. Imputation is relevant to a principal's legal relations with third parties long range of benefits. Labor laws are social legislation but not all social legislations are labor laws.
when a principal's knowledge (or lack of knowledge) of a fact is material to determining the principal's
rights and duties vis a vis a third party. Ø Are there constitutional provisions related to labor laws?

Ø Is there a need to serve summons abroad in order to acquire jurisdiction over the foreign 1. Art. II - Declaration of Principles and State Policies
employer? Sections: 9, 10, 11,13,14,18,20
2. Art. III - Bill of Rights
- No. Under the Doctrine of Imputed Knowledge, the knowledge of the agent is attributed to the Sections: 1, 4, 7, 8 10, 16, 18
principal. Therefore, it is enough that the summons be served to the local recruitment agency who is the 3. Art. XII - National Economy and Patrimony
agent of the foreign employer to acquire jurisdiction over the latter. Section 12
4. Art. XIII - Social Justice and Human Rights
Ø Will the agency still have the right to reimbursement from the foreign employer? How will the Sections: 1, 2, 3, 13, 14
agency do that? 5. Art. XVI – General Provisions
Section 8
- Yes, agency has the right to reimbursement. In the contract of agency, one of the obligations of the
Principal (foreign employer) is to reimburse the agent (agency) should the agency have advance a sum Ø How about RPC provisions?
necessary in the contract of agency. Thus, the principal-employer shall reimburse
1. Art. 272. Slavery
Ø Doctrine of Imputed Knowledge 2. Art. 273. Exploitaion of child labor
3. Art. 274. Services rendered under compulsion in payment of debt
- Doctrine of imputed knowledge attributes the knowledge of the agent to the principal. 4. Art. 278. Exploitation of minors
5. Art. 291. Revealing secrets with abuse of office
Ø Was this applied in the case of Sunace? Why? 6. Art. 292. Revelation of industrial secrets
Facts of Sunace case 7. Art. 289. Formation, maintenance & prohibition of combination of capital or labor through
violence or threats
- No. The theory of imputed knowledge ascribes the knowledge of the agent, Sunace, to the principal
(employer) not the other way around. The knowledge of the principal-foreign employer cannot, therefore, Ø Do we apply the Labor Code in the absence of an employer – employee relationship? Why?
be imputed to its agent, Sunace.
- Yes. Labor code may apply even if parties are not employers and employees of each other. The
- There being no substantial proof that Sunace knew of and consented to be bound under the 2-year employment relationship is not a pre-condition to the applicability of the Code. Labor Code applies with
employment contract extension, it cannot be said to be privy thereto. Furthermore, there was an implied or without employment relationship between disputants, depending on the kind of issue involved. For
revocation of its agency relationship with its foreign principal when, after the termination of the original instance, illegal recruitment or misuse of POEA license.
employment contract, the foreign principal directly negotiated with Divinaand entered into a new and
separate employment contract. Ø You are an employee of the Manila City Hall as a janitor. Mayor Estrada dismisses you, after
having worked there for 10 years, for not watching his movies. You want to file a complaint. Where
Ø Meralco v. NLRC would you file?
What was the particular Labor Code provision implemented?
Is said provision not derogatory against a certain class? - As a civil service employee, it shall be filed with the Civil Service Commission— as the central
personnel agency of the Government, has jurisdiction over disputes involving the removal and separation
- Art. 4 of the LC, implementation and application in favor of labor. Generally, an employer can of all employees of government branches, subdivisions, instrumentalities and agencies, including GOCCs
dismiss and employee for just and authorized causes. However, this is subject to regulation by the state, with original charters. Government employees are governed by the Civil Service Law, rules and
in the exercise of its paramount police power. In carrying out and interpreting the labor code’s provisions regulations, not by the labor code.
and its IRRs, the workingman’s welfare shall be the primordial and paramount consideration. This
interpretation gives meaning and substance to the liberal and compassionate spirit of the law as provided Ø Instead of the Manila City Hall, you were an employee of San Beda. Where would you file?
for in Art. 4 of Labor Code.
- As an employee of San Beda, it shall be filed with the DOLE because employee-employer exists
- Thus, notwithstanding the existence of a valid cause for dismissal, such as breach of trust by an between the janitor and San Beda.
employee, nevertheless, dismissal should not be imposed, as it is too severe a penalty if the latter has
been employed for a considerable length of time in the service of his employer.

- No, it does not mean that every labor dispute will be automatically decided in favor of labor,
management has also its own rights entitled to respect and enforcement in the interest of simple fair play. Ø You were now an employee of Food Terminal, Inc. Where would you file?

Ø What is the purpose of Labor laws and other social legislation?

- The Food Terminal, Inc. is a GOCC without original charter. The case should be filed with DOLE.
DOLE and not the Civil Service Commission has jurisdiction over the dispute arising from employment
with FTI. The terms and conditions of such employment are governed by the Labor Code and not by the
Civil Service Rules and Regulations.
Ø Management Rights and Prerogatives
- An employer can regulate, generally without restraint, according to its own discretion and judgment,
every aspect of its business. This privilege is inherent in the right of employers to control and manage
their enterprise effectively
- Employers have the freedom and prerogative according to their discretion and best judgment, to
regulate and control all aspects of employment. Such aspects include hiring, work assignments, working
methods, time, place, and manner of work, tools to be used, processes to be followed, supervision of
workers, working regulations, transfer of employees, work supervision, lay-off workers and discipine,
dismissal and recall of workers (PAL vs NLRC)
- Management retaines the prerogative whenever exigencies of the service so require to change the
working hourse of its employees (Sime Darby vs NLRC)
Ø Limitations on Management Rights
- The exercise of management prerogative is not absolute. It is subject to limitations imposed by law
or CBA, employment contract, employer policy or practice and general principles of fair play and justice.
3. Has existing labor and social laws protecting rights of migrant workers
4. Takes positive and concrete measures in furtherance of the guarantees in RA 8042 “Migrant Workers
Act of 1995”
Ø Minimum conditions and standards in Overseas Employment?
- Guaranteed wages for regular work hours and overtime pay, as appropriate, which will not be lower
than the prescribed minimum wage in the host country, not lower than the appropriate minimum wage
standard set forth in a bilateral agreement or international convention duly ratified by the host country
and the Philippines, or not lower than the minimum wage in the Philippines, whichever is the highest
- Free transportation to and from the worksite
- Free food and accommodation
- Just/authorized causes for termination of the workers taking into consideration the customs,
traditions, norms, mores, practices, company policies and labor laws and social legislations of the host
country
- Other provisions
a. Prevailing conditions/realities in the market
1. Existing labor and social laws of the host country
2. Relevant bilteral and multilateral agreements or arrangements with the hose country
3. Relevant agreements, conventions, delegations or resolutions
Ø If you are an OFW, if your employment contract was unjustly terminated, what are your reliefs?

Ø Juco v. NLRC 1. Full reimbursment of placement fee with 12% interest per annum
Who had jurisdiction over the case of Juco? 2. Salaries for unexpired portion irrespective of the stipulated term
3. Damages
- NLRC has jurisdiction over NHA (National Housing Corp) because it is a GOCC without an original
charter Ø You had a 2-year contract with your employer. After only 6 months, your contract is terminated
for no reason. You come back to the Philippines. Where do you file?
Ø What do you understand by an original charter?
- Labor Arbiters of NLRC
- Grant of authority or rights stating that the granter formally recognizes the prerogative of the recipient
to exercise the rights it specified Ø What would be the nature of your complaint?
- Having an original charter means it is chartered by a special law (as distinguished from corporations
organized under Corp Code which are goverened by Labor Code) - Money claims and damages

Ø National Housing Authority – does it have an original charter? Ø What are the reliefs?
- NHA is a GOCC without an original charter. It is governed by Labor Code
1. Full reimbursement of placement fee with 12% interest per annum
Ø What is the general distinction between one who has an original charter and one that does not 2. Salaries for unexpired portion
have one? 3. Damages
- With orig charter-Under CSC
- Without orig charter-Under Labor Code (NLRC) Ø Can you file your complaint before a regular court?

Ø Where to file actions? - YES. Criminal action arising from illegal recruitment can be filed with the RTC of the province or
city where the offense was committed or where the offended party actually resides at the time of the
1. POEA-administrative and disciplinary action cases commission on the offense.
2. Labor Arbiter of NLRC-deployment
3. Sec of DOLE-exclusive and original jurisditiction to act on appeals or petition for review of
disciplinary action cases decided by POEA Ø What damages may you claim?

Ø In deploying workers abroad, what are the factors to be considered?
1. Receiving country is a signatory/ratifier of multilateral conventions, declarations, or resolutions
relating to the protection of migrant workers
2. Concluded a bilateral agreement with the government protecting the rights of OFWs
- Moral damages are awarded in termination cases where the employee’s dismissal was attended
by bad faith, malice or fraud, or where it constitutes an act oppressive to labor, or where it was done in a
manner contrary to morals, good customs or public policy.
Ø Can the employee file for reinstatement?

- YES. It presupposes that the previous position from which the employee has been removed is still
in existence or there is an unfilled position of a nature, more or less, similar to the one previously occupied
by said employee.
Ø If it is unjustified?
Money claims of OFWs arising from employer – employee relationship or employment contract
belongs to the exclusive and original jurisdiction of the Labor Arbiter of the NLRC.
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to
the dignity of the Republic of the Philippines (harmful jobs)
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized
representatives; (obstruct inspection)
(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures and such other matters or information as may be
required by the Secretary of Labor. (failure to comply with rules and regulation)

The reliefs available are: (i) To substitute or alter employment contracts approved and verified by the Department of Labor from
1. Reimbursement for placement fees at 12% per annum the time of actual signing thereof by the parties up to and including the periods of expiration of the same
2. As provided for by Serrano and Thenamaris, the payment of the unexpired portion of contract without the approval of the Secretary of Labor; (alteration of contracts)
3. Damages (actual, moral, exemplary and liquidated damages)
(j) To become an officer or member of the Board of any corporation engaged in travel agency or to be
OFWs cannot be reinstated because they do not become regular employees; they are contractual engaged directly or indirectly in the management of a travel agency; and (travel agency officers recruiting)
employees.
(k) To withhold or deny travel documents from applicant workers before departure for monetary or
financial considerations other than those authorized under this Code and its implementing rules and
Ø What do you understand by recruitment? regulations. (withholding travel documents)

- It is an act of canvassing, enlisting, transporting, contracting, hiring, utilizing, or procuring workers, Ø What do you mean by pirating?
and includes contract services, referrals, advertising or promising for employment, locally or abroad,
whether for profit or not, Provided, that any person or entity which, in any manner, offers or promises for - To induce or attempt to induce a worker already employed to quit his employment in order to offer
a fee employment to two or more persons. him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions
of employment.
Ø When does recruitment become illegal?
Ø Who are authorized under law to engage in recruitment services?
- When there is any act of canvassing, enlisting, transporting, contracting, hiring, utilizing, or procuring
workers, and includes contract services, referrals, advertising or promising for employment abroad, 1. Public employment offices
locally or abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority, 2. Private recruitment entities
contemplated under Article 13(f) of PD 442, Provided that any such non-licensee on non-holder who, in 3. Private employment agencies
any manner offers or promises for a fee employment abroad to two or more persons. 4. POEA
5. Construction contractors if authorized to operate by the DOLE and the construction industry
Ø What are the prohibited acts considered as Illegal Recruitment under Article 34 of the Labor authority
Code? 6. Members of the diplomatic corps (but hiring must also go through POEA)
7. Other persons or entities as may be authorized by the DOLE secretary
ART. 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or holder of 8. Named hires
authority: 9. Shipping or manning agents or representatives
(a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of
allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than
that actually received by him as a loan or advance; (illegal exaction)

(b) To furnish or publish any false notice or information or document in relation to recruitment or
employment; (false information)

(c) To give any false notice, testimony, information or document or commit any act of misrepresentation
for the purpose of securing a license or authority under this Code. (false statement) Ø PEA v. PRE

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer
him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions PEA PRE
of employment; (pirating)
Right to charge fee
(e) To influence or to attempt to influence any person or entity not to employ any worker who has not
applied for employment through his agency; (influencing not to employ)
 1. Overseas Employment Whether for Profit or Not (2016 POEA Rules and Regulation on the
It has the right duly recognized to charge a fee Does not charge any fee
Recruitment and Employment of Land-based Overseas Workers, Part II, Rule 1, Sec. 3)
directly or indirectly from the workers or the
a. Travel agencies and sales agencies of airline companies (Art. 26, LC)
employers or from both
b. Officers or members of the board of any corp. or members in a partnership engaged in the
business of a travel agency.
Persons who they are allowed to recruit c. Corporations and partnerships, when any of its members, of the board or partners, is also an
officer, member of the board or partner of a corporation of partnership engaged in the business of a travel
Authorized to recruit only for overseas Allowed to recruit for both local and overseas agency (interlocking officers)
placement or deployment deployment d. Persons, partnerships or corporations which have derogatory records, such as but not limited
to:
Source of Authority
i. Those convicted or against whom probably cause or prima facie finding of guilt is determined
License Authority by a competent authority, for illegal recruitment, or for other related crimes or offenses committed in the
course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude.
ii. Those agencies whose licenses have been previously cancelled or revoked by POE for
Ø People v. Panis
violation of RA 8042, PD 442 and RA 9208 as amended and their IRR as well as the LC IRRs.
Legal presumption in the case of People v. Panis
iii. Those agencies whose licenses have been cancelled, or those who, pursuant to the order of
the administrator, were included in the list of persons with derogatory record for violation of recruitment
- The number of persons dealt with is not an essential ingredient of the act of recruitment and
laws and regulations.
placement of workers. The words “shall be deemed” creates such presumption.
e. Officials or employees of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO,
Ø Requirements for the granting of the license to recruit
NBI, PNP, CAAP, international airport authorities and other government agencies directly involved in
overseas employment program and their relatives within the 4th degree of consanguinity or affinity; and
1. Citizenship requirement
f. Those individuals, partners, officers or directors of an Insurance company who make, propose or
a. Filipino citizens
provide an insurance contract under the compulsory insurance coverage for agency-hired OFW.
b. Corporations, partnerships, or entities at least 75% of the authorized and voting capital stock
of which is owned and controled by filipino citizens
2. Local Employment
2. Capitalization
- Under Department Order No. 141-14, Sec. 5
a. Local employment - minimum net worth requirement for sole proprietorship is 1 million
b. Overseas employment - minimum net worth requirement for sole proprietorship is 5 million
a. Those who are convicted of illegal recruitment, trafficking in persons, anti-child labor violation
or crimes involving moral turpitude
3. Those not otherwise disqualified by law or other governement regulations to engage in the
b. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other
recruitment and placement of workers for overseas employment
related cases exists particularly to owners or directors of agencies who have committed illegal recruitment
or other related cases.
4. In local employment, the owner, partner, or officer of the corporation must be of good moral character
c. Cooperatives whether registered or not under the Cooperative Act of the Philippines.
and not disqualified by law and must have an office space with a minimum floor area of 50 sq. meters
d. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage
in recruitment and placement.
Ø You are able to submit all the requirements; does that mean that you may now be given a
e. Sole proprietors, partnerships or corporations licensed to engaged in private recruitment and
license to engage in recruitment?
placement for local employment are prohibited from engaging in job contracting or sub-contracting
activities.
- No. See first if there is a disqualification.
Ø Are the prohibited acts exclusive?
Ø You are the evaluating officer. Citizenship and capitalization requirement is okay. Will you now
-The presumptions of illegal recruitment under Art. 34 of the Labor Code are not exclusive because Sec.
automatically approve the application?
6 of RA 8042 as amended by RA 10022 provides for additional prohibited acts.
- No, because they must first acquire a license, if they are a private employment agency or an
authority if they are a private recruitment entity.
Ø 10 additional prohibited acts
- Also, as provided by the IRR of the Labor Code, Book I, Rule II, Sec. 2, they must not otherwie be
(Page 17-18, 2017 Mem Aid)
disqualified by law or other ogvernment regulations to engage in the recruitment and placement of
workers for overseas employment.
1. Failure to deploy a contracted worker without a valid reason as determined by DOLE.
- In the same IRR, they must have an office space with a minimum floor area of 50sqm.
2. Failure to reimburse expenses incurred by the worker in connection with his documentation
and processing for purposes of deployment, in cases where the deployment does not actually take place
Ø What are the disqualification from recruitment?
without the worker’s fault
(Page 16-17 of the 2016 Labor Mem Aid)
3. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.
4. Granting a loan to an OFW with interest exceeding 8% per annum which will be used for
payment of legal and allowable placement fees and make the migrant worker issues, either personally or Ø Named hires
through a guarantor or accommodation party, postdated checks in relation to said loan. - They are those individual workers who are able to secure contracts for overseas employment on
5. Imposing a compulsory and exclusive arrangement whereby an OFW is required to undergo their own efforts and representation without assistance or participation of any agency. Their hiring still
Health examinations only from specifically designated medical clinics, institutions, entities, or persons, has to be processed through POEA.
EXCEPT in the case of a seafarer whose medical examination cost is shouldered by the
principal/shipowner. Ø Why are named hires exempted?
6. Refusing to condone or renegotiate a loan incurred by an OFW after the latter’s employment - Name hires are exempted because they are not directly hired by employers. Rather, they personally
contract has been prematurely terminated through no fault of his or her own. make an effort to find these jobs themselves and by doing so, they would not fall under the prohibition on
7. For a recruitment/manning agency or a foreign principal/employer to Pass on the overseas direct hiring as provided by our law.
Filipino worker or deduct from his or her salary the payment of the cost of insurance, fees premium or
other insurance related charges, as provided under the compulsory worker’s insurance coverage. Ø Types of Illegal Recruitment
8. Imposing a compulsory and exclusive arrangement whereby an overseas Filipino worker is (Page 19, 2017 MemAid)
required to avail of a loan only from specifically designated institutions, entities or persons.
9. For a suspended recruitment/manning agency to engage in any kind of recruitment activity 1. Simple Illegal Recruitment
including the processing of pending workers’ applications; 2. Large-Scale Illegal Recruitment/Illegal Recruitment involving Economic Sabotage
10. Imposing a compulsory and exclusive arrangement whereby an OFW is required to undergo training, 3. Illegal Recruitment by Syndicate
seminar, instruction or shcooling of any kind only from specifically designated institutions, entities, or
persons, EXCEPT for recommendatory trainings mandated by principals/shipowners where the latter Ø Distinctions between the two in terms of prescription and penalties
shoulder the cost of such trainings. 1. Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not
less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less
Ø What do you understand about direct hiring? than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).
(Page 15, Mem Aid. Page 55, 2016 Azucena) 2. The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00)
- Direct Hiring is when a foreign employer hires a Filipino Worker without the intervention of any nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes
agencies or entities as allowed by DOLE. It may also be defined as when Filipino workers are directly economic sabotage as defined therein.
hired by the employers for overseas employment.
Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less
Ø What is the policy on direct hiring? than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.
- Art. 18 of the Labor Code provides that no employer may hire Filipino workers for overseas
employment subject to certain exceptions.
SIMPLE ECONOMIC SABOTAGE
Ø Why is it not allowed?
(Page 15, Mem Aid) Prescriptive Period

1. To assure the best possible terms and conditions of work to the employee. 5 years 20 years
2. To assure the foreign employer that he hires only qualified Filipino workers; and
3. To insure compliance with the labor Code provisions on the solidary liability of the private employment
and recruitment agencies with their foreign principal. Imprisonment

Ø Is it only for the protection of the Filipino worker? What about the employer? 12 years and 1 day to 20 years Life Imprisonment
- The employer is also protected

Ø In what way does the law protect the employer? Fine

- The employer is protected that it only hires those applicants already properly screened by the PhP 1 to 2 million PhP 2 to 5 million
agencies allowed by the DOLE to engage in recruitment. It prevents the hiring of applicants with
derogatory records and that the employer is given an additional remedy by holding the agency liable who
deployed the erring employee. Maximum penalty is imposed:
1. If the person illegally recruited is less than 18 yrs of age; or
Ø Who are exempted from the prohibition on direct hiring? 2. If committed by a non-licensee or non-holder of authority
(Page 15, 2016 Mem Aid)
Ø Do we also allow for foreigners to be employed in the Philippines?
1. Name Hires
2. Direct Hiring by members of the diplomatic corps - Yes, however, it is mandatory to obtain work permits prior to starting any kind of employment.
3. Direct Hiring by members of international organizations
4. Direct Hiring by other employers as may be allowed by DOLE
- Alien Employment Permit (AEP) is required for entry into the country for employment purposes and - If you are an agency-hired OFW, your agency applies for your insurance coverage in your behalf.
is issued after determination of the non-availability of a person in the Philippines who are competent, able An insurance proof of cover is one of the requirements of the Philippine Employment Overseas
and willing at the time of the application to perform the services for which the alien is desired. Administration (POEA) before an OFW or a migrant-worker can be issued an Overseas Employment
Certificate (OEC).
Ø Does this apply to all foreigners? Do they have to secure AEPs?
- Upon filing complete documentary requirements, the insurance company should pay the claimant
- No. Only non-resident aliens are required to secure AEP. Only an Alien Employment Registration within ten (10) days. The claimant can be the OFW, his/her beneficiary, or the OFW’s recruitment agency.
Certificate (AERC) is required for immigrants and resident aliens. They are not required to secure a
working permit. - Compulsory Insurance Coverage for Agency-Hired Workers covers the following:
1. Accidental Death Benefit;
Ø What are the limitations before the Secretary of Labor issues an AEP? 2. Natural Death Benefit;
3. Permanent Total Disablement Benefit;
1. Compliance by the applicant employer or the foreign national with the substantive and 4. Repatriation Cost Benefit;
documentary requirements; 5. Subsistence Allowance Benefit;
2. Determination of the SOLE that there is no available Filipino national who is competent, able 6. Money Claims Benefit;
and willing to do the job for the employer; and 7. Compassionate Visit Benefit;
3. Assessment of the SOLE that the employment of the foreign national will redound to the 8. Medical Evacuation Benefit; and
national benefit. (D.O. No. 12-01, Sec. 3) 9. Medical Repatriation Benefit.

Not all types of aliens are required to have an AEP. It is only required for non-resident aliens. Ø If the principal/employer breached the contract(premature termination of contract), can an OFW
Residents need AERC issued by the Bureau of Immigration. claim reinstatement?

Ø What is the original jurisdiction of the Labor Arbiter? - No. The OFW is only entitled to the following:
1. Reimbursement of placement fees;
- Article 217 of the Labor Code, as amended by Section 9 of Republic Act (R.A.) No. 6715 laid down 2. Salaries for the unexpired portion of the contract; and
the Jurisdiction of Labor Arbiters, to wit: 3. Depending on evidence, actual, moral and exemplary damages.

ART. 217. Jurisdiction of Labor Arbiters and the Commission-- (a) Except as otherwise provided under
this Code the Labor Arbiter shall have original and exclusive jurisdiction to hear and decide, within thirty BOOK II
(30) calendar days after the submission of the case by the parties for decision without extension, even in TESDA LAW
the absence of stenographic notes, the following cases involving all workers, whether agricultural or MAGNA CARTA FOR DISABLED PERSONS
nonagricultural:

1. Unfair labor practice cases;

2. Termination disputes; Ø Learners v. Apprentice
3. If accompanied with a claim for reinstatement, those cases that workers may file involving LEARNERS APPRENTICE
wages, rates of pay, hours of work and other terms and conditions of employment;
4. Claims for actual, moral, exemplary and other forms of damages arising from employer-
employee relations; Persons hired as trainees in semi-skilled and A practical training on the job supplemented
5. Cases arising from any violation of Article 264 of this Code including questions involving the other industrial occupations which are non- by related theoretical instruction, for a highly
legality of strikes and lockouts; and apprenticeable and which may be learned skilled or technical occupation for a period of
6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, through practical training on the job in a not less than 3 months but not more than 6
all other claims, arising from employer-employee relations, including those of persons in domestic or relatively short period of time which shall not months
household service,involving an amount exceeding five thousand pesos (₱5,000.00) regardless of exceed 3 months.
whether accompanied with a claim for reinstatement.
Requisites
Ø Illegal recruitment against only 2 persons? If against 2 victims?

- Where illegal recruitment is proved but the elements of large scale or syndicate are absent, the
accused can be convicted only of simple illegal recruitment. In illegal recruitment cases, the number of
persons victimized is determinative of the crime of Large-Scale Illegal Recruitment. Failure to prove that
at least 3 persons was illegally recruited makes the crime a case of simple illegal recruitment only.

Ø When does the insurer come into the picture?


1. Qualifications for apprenticeship are
met:
a. At least 15 years of age, provided that if
below 16 years, he shall not be eligible for
hazardous occupation
b. Physically fit for the occupation in which
he desires to be trained
2. Apprentice earns not less than 75% of
the prescribed minimum salary
3. Apprenticeship agreement duly
executed and signed
4. Apprenticeship program approved by
TESDA
5. Period of apprenticeship shall not
exceed 6 months
As to Occupation
Semi-skilled
- Accordingly, because the job is more easily learnable in learnership than in apprenticeship, the
1. No experienced workers are available
employer is committed to hire the learner-trainee as an employee after the training period. No such
2. The employment of learners being
commitment exists in apprenticeship.
necessary to prevent curtailment of
- Finally, employment of apprentices, as stated in Article 60, is legally allowed only in highly technical
employment opportunities
industries and only in apprenticeable occupations approved by DOLE. Learnership is allowed even for
3. The employment will neither create
non-technical jobs.
unfair competition in terms of labor costs not
impair or lower working standards
Ø Similarities between Learners and Apprentices
- Learnership and apprenticeship are similar because they both mean training periods for jobs
requiring skills that can be acquired through actual work experience. And because both a learner and an
apprentice are not as fully productive as regular workers, the learner and the apprentice may be paid
wages 25% lower than the applicable legal minimum wage.
Ø Are there instances where the employer is not required to pay the apprentice?
- Yes. Art. 72 of the Labor Code states that the Secretary of Labor and Employment may authorize
the hiring of apprentices without compensation whose training on the job is required by the school or
training program curriculum or as requisite for graduation or board examination.
Highly technical approved by TESDA
Ø Example of Activities/Application of apprenticeable occupations

As to theoretical instruction Marketing Apprentice:

Job Description:
Optional Mandatory - Strengthen the marketing team! Assist marketing team to plan, ideate, execute and manage all
marketing initiatives
- Hit targets! Help measure and analyze digital marketing reports. Candidate must evaluate the
As to competency-based system
performance and check if marketing goals/KPIs/ROI have been achieved
- Connect people! Improve audience engagement to all marketing platforms
Required Not required implementation based on - Be a team player! Collaborate internal and external teams in order to align with marketing goals
TESDA – approved system - Perform other duties as assigned by management

Insurance Operations Apprentice:

Training Period Job Description:

- This assignment will work alongside a number of different areas in Operations allowing you to
Shall not exceed 3 months Exceeds 3 months develop your skills and insurance experience.
- Tasks may include basic data entry and processing for new business, account services, claims and
Not an apprentice Conceptually, also a learner underwriting.
- The role also supports office procedure: simple document processing, completion of standard
forms/letters for mailing to client and correspondences through email or telephone.
Employer is committed to hire the learner No such commitment in apprenticeship
trainee as an employee after the training
period - Under RA7796, employers can only hire apprentices for apprenticeable occupations which must be
officially endorsed by a tripartite body and approved for apprenticeship by TESDA to protect apprentices
and prevent possible abuses by prospective employers.
- A Learner and Apprentice differ in the focus and the terms of training. A learner trains in a semi-
skilled job or in industrial occupations that require training for less than three months. An apprentice, on - Department Order No. 68-04 states that no enterprise shall be allowed to hire apprentices unless
the other hand, trains in a highly skilled job or in a job found only in a highly technical industry. Because its apprenticeship program is registered and approved by TESDA (Century Canning Corp v CA [GR No.
it is a highly skilled job, the training period exceeds three months. For a learner, the training period is 152894, August 17, 2007]
shorter because the job is more easily learned than that in apprenticeship. The job, in other words, is
“non-apprenticeable” because its practical skills can be learned in three (not six) months. A learner is not - It is mandated that apprenticeship agreements entered into by the employer and apprentice shall
an apprentice but an apprentice is, conceptually, also a learner. be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor
and Employment. Prior approval by the TESDA of the proposed apprenticeship program is, therefore, a
condition sine qua non before an apprenticeship agreement can be validly entered into.

Ø You are in a factory and all your do is wrap items, is that apprenticeable?
- No. An Apprentice is legally allowed only in highly technical industries and only in apprenticeable
occupations approved by TESDA. It is Learnership which is allowed even for non-technical jobs.
- 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.
- Wrapping items may be learned through practical training on the job in a relatively short period of
time.
Ø Nitto Enterprises Case
FACTS:
Nitto Enterprises hired Roberto Capili as an apprentice sometime in 1990 as evidenced by an
apprenticeship agreement for a period of 6 months. After a series of work mishaps, he was asked to
resign.He also executed a Quitclaim and Release in favor of Nitto Enterprises. Subsequently, Capili filed
before the NLRC a comlaint for illegal dismissal. The Labor Arbiter affirmed the dismissal saying “private
respondent who was hired as an apprentice violated the terms of their agreement when he acted with
gross negligence resulting in the injury not only to himself but also to his fellow worker. and he had shown
that "he does not have the proper attitude in employment particularly the handling of machines without
authority and proper training” The NLRC reversed the decision and considered Capili as a regular
employee, not a mere apprentice.
RULING:
The Supreme Court said that Capili was a regular employee. The apprenticeship agreement between
Nitto Enterprsies and Capili did not comply with the requirements of the law.
Prior approval by the DOLE of the proposed apprenticeship program is a condition sine quo non before
an apprenticeship agreement can be validly entered into. Hence, since the apprenticeship agreement
between petitioner and private respondent has no force and effect in the absence of a valid
apprenticeship program duly approved by the DOLE, private respondent's assertion that he was hired
not as an apprentice but as a delivery boy ("kargador" or "pahinante") deserves credence. He should
rightly be considered as a regular employee of petitioner as defined by Article 280 of the Labor Code
Ø Century Cannning Case
FACTS:
On 15 July 1997, Century Canning Corporation (petitioner) hired Gloria C. Palad (Palad) as fish cleaner
at petitioners tuna and sardines factory. Palad signed on 17 July 1997 an apprenticeship agreement with
petitioner. On 25 July 1997, petitioner submitted its apprenticeship program for approval to the Technical
Education and Skills Development Authority (TESDA) of the Department of Labor and Employment
(DOLE). On 26 September 1997, the TESDA approved petitioners apprenticeship program. According to
petitioner, a performance evaluation was conducted on 15 November 1997.As a consequence, petitioner
issued a termination notice dated 22 November 1997 to Palad, informing her of her termination effective
at the close of business hours of 28 November 1997. Palad then filed a complaint for illegal dismissal,
underpayment of wages, and non-payment of pro-rated 13thmonth pay for the year 1997.
RULING:
The Court held that the apprenticeship agreement which Palad signed was not valid and binding because
it was executed more than two months before the TESDA approved petitioners apprenticeship program.
Since Palad is not considered an apprentice because the apprenticeship agreement was enforced before
the TESDAs approval of petitioners apprenticeship program, Palad is deemed a regular employee
performing the job of a fish cleaner. Clearly, the job of a fish cleaner is necessary in petitioners business
as a tuna and sardines factory. Under Article 280 of the Labor Code, an employment is deemed regular
where the employee has been engaged to perform activities which are usually necessary or desirable in
the usual business or trade of the employer.
Ø Atlanta Case
Was there a valid apprenticeship agreement?
- No. Based on company operations at the time material to the case, Costales, Almoite, Sebolino
and Sagun were already rendering service to the company as employees before they were made to
undergo apprenticeship. The company itself recognized the respondents status through relevant
operational records in the case of Costales and Almoite, the CPS monthly report for December 2003
which the NLRC relied upon and, for Sebolino and Sagun, the production and work schedule for March
7 to 12, 2005 cited by the CA.
How was that established when there was no valid apprenticeship agreement?
- The fact that Sebolino and the three others were already rendering service to the company when
they were made to undergo apprenticeship (as established by the evidence) renders the apprenticeship
agreements irrelevant as far as the four are concerned. This reality is highlighted by the CA finding that
the respondents occupied positions such as machine operator, scaleman and extruder operator - tasks
that are usually necessary and desirable in Atlantas usual business or trade as manufacturer of plastic
building materials. These tasks and their nature characterized the four as regular employees under Article
280 of the Labor Code.Thus, when they were dismissed without just or authorized cause, without notice,
and without the opportunity to be heard, their dismissal was illegal under the law.
What was the reasoning of the court in saying that there was already a regular employment?
- The company’s need to train its employees through apprenticeship, we can only consider the first
apprenticeship agreement for the purpose. With the expiration of the first agreement and the retention of
the employees, Atlanta had, to all intents and purposes, recognized the completion of their training and
their acquisition of a regular employee status. To foist upon them the second apprenticeship agreement
for a second skill which was not even mentioned in the agreement itself, is a violation of the Labor Codes
implementing rules, and is an act manifestly unfair to the employees, to say the least. This we cannot
allow.
Ø Who is considered a qualified disabled employee?
- An individual with disability who with or without reasonable accommodations can perform the
essential functions of the employment position that such individual holds or desires.
Ø Handicapped employee under the Labor Code. Give an example?
- Those whose earning capacity is impaired by age or physical or mental deficiency or injury disease
or illness.
Ø Bernardo case
How does a deaf-mute become a qualified disabled employee?
Moral of the story
FACTS:
Far East Bank (Respondent) entered into employment contracts with deaf-mutes, who were hired as
money sorters under uniform “Employment Contracts for Handicapped Workers.” Every 6 months, these
workers renewed their employment contracts. The complainants here complain that they were regular
employees and that they have been illegally dismissed.
Respondent argued that complainants were not regular employees, but a special class of workers who
were hired because of political and civic accommodation. And that the Bank’s corporate philosophy does
not allow the hiring and regularizing handicapped workers unless it was on a special arrangement basis.
The Labor Arbiter ruled in favor of respondent bank workers. NLRC affirmed.
RULING:
Supreme Court said that petitioners are regular employees. The fact that after the expiry of their 6 month
contract, respondent bank renewed their contracts shows that these workers were qualified to perform
the responsibilities of their positions.
The Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the
same terms of employment as a qualified able-bodied person. This being so, petitioners are thus covered
by Art. 286 of the Labor Code which defines regular employment to be that the employee has been
engaged to perform activities usually necessary or desirable in the usual business or trade of the
employer. The task of counting and sorting bills is necessary to the business of respondent bank. Except
for sixteen of them, the petitioners performed these tasks for more than six months. Therefore, the 27
petitioners should be deemed regular employees entitled to security of tenure. Their services may only
be terminated for a just and authorized cause. Because respondents failed to show such cause, these
27 petitioners are deemed illegally dismissed and hence entitled to backwages and separation pay.
Ø 3 types of workers in Book 2?
1. Apprentice
2. Learners
3. Handicapped Workers
Ø Why does the law allow payment of less than minimum wage (in Learnership and
Apprenticeship?)
- Both a learner and an apprentice are not as fully productive as regular employees.
Ø Does the law allow non-payment (in Learnership and Apprenticeship?). If yes, why?
- Yes, apprentices may be hired without compensation where on-the-job training is:
1. Required by the school/training curriculum as a requisite for graduation
2. A requisite for board examination
1. government employees
2. Manegerial Employees including members of the manegerial staff
3. Domestic helpers or persons in the personal service of another
4. Workers paid by result
5. Field Personnel
6. Members of the Family of the employer who are dependent on him for support
Ø What are the two types of holidays?
- Regular Holidays and Special Holidays
Ø Night Shift Differential – when is that available?
- Additional compensation of not less than 10%of an employee’s regular wage for every hour of
work done between 10 pm and 6 am whether or not such period is part of the worker’s regular shift.
Ø What particular time of the night?
- Between 10 pm to 6 am whether or not such period is part of the worker’s regular shift.
Ø Discuss the power of the Secretary of Labor under Article 128, visitorial power of the Secretary
of Labor
- Visitorial Power is the power of the SOLE or any of his duly authorized representative to have
access to employer’s records and premises at any time of the day or night whenever work is being
undertaken therein. It includes 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 the Code and of any labor law, wage order, or rules and regulations.
Ø What does Article 128 say in essence?
- It is the visitorial and enforcement powers of the Secretary of Labor or DOLE Regional Director or
his duly authorized representative to order and enforce compliance with labor standard laws.
Ø Why is it called visitorial power?
- Under art 38, Secretary of Labor or his duly representative, may at any time, inspect the premises,
books of account, and records of any person or entity covered by this Title, require it to submit records
regularly on prescribed forms and to act on violations of any provisions of this Title.
- In other words, SOLE has the right to inspect and supervise.

Ø What are the benefits and privileges under Title One? Ø What does Article 129 say in essence?

1. Right to Regular Working hours - It talks about the recovery of wages, simple claims and other benefits.
2. Right to Regular Working days
3. Right to Regular meal periods Ø Adjudicatory power
4. Right to Weekly rest periods
5. Right to overtime work - Adjudicatory power of the regional director or any duly authorized hearing officer of DOLE through
6. Right to night shift differential pay summary proceeding and after due notice, to hear and decide cases involving recovery of wages and
7. Right to compensation for holiday work other money claims and benefits, including legal interests.
8. Right to additional Compensation on scheduled rest day Sunday, or special holiday work
9. Right to Service Incentive Leave
10. Right to a share in the collected service charge
Ø Requisites for adjudication power of the Secretary of Labor
Ø Who are excluded from Title One?
1. The aggregate money claim of each employee or househelper does not exceed Php 5, 000; service incentive leave, 13th month pay, premium pay for holiday and rest day and illegal diminution of
2. The claim is presented by an employee or person employed in domestic or household service benefits, delayed payment of wages and noncoverage of SSS, PAG-IBIG and Phil-health. The DOLE
or househelper; Regional Director found that private respondent was an employee of petitioner, and was entitled to his
3. The claim arises from Employer-employee relations; and money claims. The Acting DOLE Secretary dismissed petitioner’s appeal on technical grounds. The CA
4. The claimant does not seek reinstatement. held that DOLE Secretary had jurisdiction over the matter, as the jurisdictional limitation imposed by
Article 129 of the Labor Code on the power of the DOLE Secretary under Art. 128(b) had been repealed
Ø P5000 threshold, still applicable? by R.A. 7730.

- Guico case. It can no longer be applied because Art. 128(b) was amended by R.A. 7730. The Supreme Court reversed and set aside the decision of CA, and dismissed the complaint against
petitioner. The Court found that there was no employer-employee relationship between petitioner and
Ø Differentiate Article 128 and 129 private respondent. It was held that while the DOLE may make a determination of the existence of an
employer-employee relationship, this function could not be co-extensive with the visitorial and
enforcement power provided in Art. 128(b) of the Labor Code, as amended by RA 7730. The NLRC is
VISITORIAL AND ENFORCEMENT POWER ADJUDICATORY POWER the primary agency in determining the existence of an employer-employee relationship. The Public
(Art. 128) (Art. 129) Attorney’s Office sought clarification as to when the visitorial and enforcement power of the DOLE be not
considered as co-extensive with the power to determine the existence of an employer-employee
Who exercises power relationship. The DOLE sought clarification as well, as to the extent of its visitorial and enforcement power
under the Labor Code, as amended.
Sec of Labor of his duly authorized Regional Director or his duly authorized
representative who may or may not be hearing officer of DOLE. ISSUE: Is DOLE empowered to determine the existence of employer-employee relationship?
Regional Director
RULING:
Nature of Power
Under Art. 128(b) of the Labor Code, as amended by RA 7730, the DOLE is fully empowered to make a
Administrative; Visitorial and enforcement Adjudicatory power on matters involving determination as to the existence of an employer-employee relationship in the exercise of its visitorial
power through routine inspections of recovery of wage. and enforcement power, subject to judicial review, not by the NLRC. If a complaint is brought before the
establishment. DOLE to give effect to the labor standards provisions of the Labor Code or other labor legislation, and
there is a finding by the DOLE that there is an existing employer-employee relationship, the DOLE
Existence of Er-Ee relationship exercises jurisdiction to the exclusion of the NLRC. If the DOLE finds that there is no employer-employee
relationship, the jurisdiction is properly with the NLRC. If a complaint is filed with the DOLE, and it is
Requires existence Not necessary since it should not include a accompanied by a claim for reinstatement, the jurisdiction is properly with the Labor Arbiter, under Art.
claim for reinstatement 217(3) of the Labor Code, which provides that the Labor Arbiter has original and exclusive jurisdiction
over those cases involving wages, rates of pay, hours of work, and other terms and conditions of
How initiated employment, if accompanied by a claim for reinstatement.

Enforcement power is an offshoot of visitorial Sworn complaint filed by interested party Ø What happens if a complaint is filed with the DOLE Regional Director and during the hearing,
power there is already no employer-employee relationship? What will the Regional Director do?

Limitation as to Amount of Claim - For regional director to exercise enforcement power, the er-ee relationship must exist at the time of
the presentation of the complaint. If workers complain about illegal dismissal, it should be filed with the
Labor Arbiter. If the complaints are based on wages and labor laws, Regional Director will retain the
No limit Aggregate claim of each complainant does not
jurisdiction
exceed Php 5,000
- If DOLE finds that there is no exisiting Ee-Er relationship, the jurisdiction is properly with NLRC.
Appeal Ø If the complaint is filed with the Labor Arbiter, and then it was established that there is an
employer-employee relationship, what will happen?
Appeal to Sec. of Labor within 10 calendar Appeal to NLRC within 5 calendar days
days; Decision may be elevated to CA through - The DOLE exercises jurisdiction tto the exclusion of NLRC.
certiorari
Ø Benefits under Book III of the Labor Code and the grants to the employees covered.
Ø People Broadcast and Bombo Radyo case
1. Right to Regular working hours;
FACTS: 2. Right to Regular working days;
3. Right to Regular meal periods;
Private respondent Jandeleon Juezan filed a complaint against petitioner with the Department of Labor 4. Right to Weekly rest periods;
and Employment (DOLE) Regional Office No. VII, Cebu City, for illegal deduction, non- payment of 5. Right to Overtime Work;
6. Right to Night-shift differential pay; More than 8 hours means bigger pay = Overtime pay of 25 %
7. Right to Compensation for holiday work; In a week, 6 working days is the maximum
8. Right to Additional compensation on scheduled rest day, Sunday or special holiday work; 48 consecutive hours maximum
9. Right to Service incentive leave; and
10. Right to a Share in the collected service charges. WEEKLY REST DAY
Designated by the employer
Ø Discuss service charge. If there is no regularly designated rest day, any work of an employee on a Sunday or holiday has
a different rate.
Coverage: Hotels, restaurants and similar establishments collecting service charges. All employees
covered except managerial employees. OVERTIME
General Rule: No overtime
Distribution: 85% to covered employees;15% for disposition of management for losses and breakages
to be distributed not less than once every two weeks. WORK DURING REST DAY
General Rule: Not allowed
Note: Not in the nature of profit share and cannot be deducted from wage. Exceptions: when employer may require

Ø How many regular holidays do we have? Give examples.

HOLIDAY
- 12 2 types: Regular and Sepcial Holidays
List of Regular Holidays as amended by RA 9492: 12 Regular Holidays
1. New Year’s Day Special - National and Local
2. Maundy Thursday Local - province, city, etc.
3. Good Friday
4. Araw ng Kagitingan NO WORK, NO PAY
5. Labor Day If you work, you have to be paid.
6. Independence Day Applicable only to special holidays; regular holidays are an exception.
7. National Heroes Day
8. Bonifacio Day Premium - more than what you regularly receive
9. Christmas Day
10. Rizal Day MEAL PERIOD
11. Eid’l Fitr 60 minutes; not compensable.
12. Eid’l Adha Employer reduces meal period to less than 20 minutes; compensable
Worker must be engaged in stressful physical activities
Ø How many special holidays do we have? Give examples.
WORKING TIME COMPENSABLE
- Not limited since a law or ordinance may be passed providing for other special holidays. 1. When he is actually working
2. When you require him to be on duty or at a particular work place
Ø What is the effect of NOT working on a holiday and NOT working on a special day? Apply several other concepts such as waiting time, idle time, sleeping time, and others
It will be based on the nature of the work of the employee
-Regular Holiday: Compensable even if unworked. Rate is 200% of the regular rate if worked.
-Special Holiday: Not conpensable if unworked. Rate is 130% of regular rate if worked. NIGHT SHIFT DIFFERENTIAL
10PM to 6AM
Ø If an employee has a monetary claim of Php 4,000, and there is an employer-employee Additional 10% plus overtime
relationship, where will he claim it? What if it is Php 8,000?
UNDERTIME CANNOT BE OFF-SET BY OVERTIME
- If there exists an Er-Ee relationship, the Secretary of labor through his visitorial and enforcement 1. Prejudicial to the employee
power under Article 128 shall have jurisdiction. This is regardless of the amount of claim. 2. May be prejudicial to the employer; employee will become free to choose his own
schedule
The cap of Php5,000 shall only apply when adjudicatory power under Article 129 is exercised.
SERVICE CHARGES
TITLE ONE BENEFITS
Minimum Statutory Benefits SERVICE INCENTIVE LEAVE
Employers may give more; normally done if there is a Collective Bargaining Agreement There are no express provisions in the Code regarding Vacation Leave and Sick Leave
5 days minimum
WORKING HOURS 1 year of service must be rendered first
8 hours maximum of working hours - there is no minimum
Exclusions (Memorize)
EMPLOYMENT OF MINORS
Requirements of Manager
Not dependent upon number of hours spent but on qualifications.
Ø Who are considered children?
TITLE TWO WAGES
- any person under 18 yrs of age (Sec. 3[a] DO No. 65-04)
ALLOWABLE DEDUCTIONS
Ø Are children allowed to work?
General Rule: No deductions
-Yes. Subject to the condition that:
Exceptions:
Facilities - Board and Lodging; may also be supplements because they are beneficial
Supplements - over and above the regular compensation or benefit of the employee For those below 15: can only be engaged in work where s/he directly under the responsibility of his/her
parents or legal guardian or whose participation in public information is essential.
-cannot work more than 4 hours a day nor more than 20 hrs a week.
Under the Code, only facilities may be deducted from the wages; not supplements
-cannot work from 8pm to 6am of the following day.
For whose ultimate benefit is it? Is it for the benefit of the employee and his immediate family?
For those 15-below 18:
Facility - Yes
Supplement - No -cannot work for more than 8 hrs a day nor more than 40hrs a week
-cannot work from 10pm to 6am of the following day.
NON-DIMUNITION OF BENEFITS
Ø Absolute prohibition for children below 15?
Applicable only to supplements
- Generally, children below 15 shall not be employed unless:
WAGE DISTORTION
Minimum wage set by law 1. engaged in work where s/he directly under the responsibility of his/her parents or legal
guardian; or
Applicable only to particular region or industry
2. whose participation in public information is essential.
MINIMUM WAGE FIXING
RWPB - Conducts public hearing and acts on petitions of wage increase based on Criteria BOOK IV

WAGE ORDER
Issued by the board Ø State Insurance Fund
Increases minimum wage
Issuance may result in wage distortion This system requires the employer to take out insurance either with an insurance bureau operated by the
State or with a private company, or to contribute in a compensation fund; and if the employee is injured
INTENTIONAL QUANTITATIVE DIFFERENCE the compensation is paid by the insurer from the compensation fund.
Based on skills or years of service
Salary scale is different All employers, employees not over sixty, employees over 60 and Filipino employees abroad subject to
prescribed ECC regulations are covered.
PROCEDURE TO SOLVE WAGE DISTORTION
Depends whether there is a CBA Ø How is the fund administered?

NO CBA WITH CBA ART. 178. Management of funds. - All revenues collected by the System under this Title shall be
deposited, invested, administered and disbursed in the same manner and under the same conditions,
requirements and safeguards as provided by Republic Act numbered eleven hundred sixty-one, as
NCMB Grievance Machinery
amended, and Commonwealth Act numbered one hundred eighty-six, as amended, with regard to such
other funds as are thereunder being paid to or collected by the SSS and GSIS, respectively: Provided,
LA Voluntary Arbitrator
that the Commission, SSS and GSIS may disburse each year not more than twelve percent of the
contributions and investment earnings collected for operational expenses, including occupational health
NLRC CA and safety programs, incidental to the carrying out of this Title.
CA SC ART. 179. Investment of funds. - Provisions of existing laws to the contrary notwithstanding, all revenues
as are not needed to meet current operational expenses under this Title shall be accumulated in a fund
SC to be known as the State Insurance Fund, which shall be used exclusively for payment of the benefits
under this Title, and no amount thereof shall be used for any other purpose. All amounts accruing to the
State Insurance Fund, which is hereby established in the SSS and GSIS, respectively, shall be deposited
with any authorized depository bank approved by the Commission, or invested with due and prudent
regard for the liquidity needs of the System. (As amended by Sec. 4, P.D. 1368). Ø If the employee drinks a poisonous substance, when will it be simple or notorious negligence?

(PD 626) - If for example, the employee is a chemist or pharmacist, if he drinks a poisonous substance - there
is a higher understanding that what he is drinking may have lethal effects. But if for example, the
Ø Are claims filed directly to the ECC or the System? employee is a chef who happens to drink a poisonous substance, mistaking it for some ingredient, there
is merely simple negligence.
- The latter.
(See distinction between Solidum and Quizon Cases)
“The System shall have original and exclusive jurisdiction to settle any dispute arising from this Title with
respect to coverage, entitlement to benefits, collection and payment of contributions and penalties Ø Occupational disease
thereon, or any other matter related thereto, subject to appeal to the Commission, which shall decide
appealed cases within twenty working days from the submission of the evidence.” (Art 180, PD 626) - Occupational disease is one which results from the nature of the employment. By nature is meant
conditions to which all employees of a class are subject and which produce the disease as a natural
Ø The System refers to? incident of a particular occupation
- The SSS or GSIS as the case may be.
Ø Menez Case
Ø Composition of the ECC – who is the Chairman?
Chairman: DOLE Secretary - To be occupational, the disease must be one due wholly to causes and conditions which are
Ex-officio members: normal and constantly present and characteristic of the particular occupation; that is, those things
a. SSS Administrator which science and industry have not yet learned how to eliminate. Every worker in every plant
b. GSIS President of the same industry is alike constantly exposed to the danger of contracting a particular occupational
c. ECC Executive Director disease.
d. Medicare Chairman
e. Two members to be appointed by the President. One representing the employees and the other - An occupational disease is one which develops as a result of hazards peculiar to certain
the employers. occupations, due to toxic substances (as in the organic solvents industry), radiation (as in
television repairment), repeated mechanical injury, emotional strain, etc.
Ø Possible grounds for denial of claims?
Ø If you are a claimant, how would you know if it is an occupational disease?
Art 178 provides—
GR: The State Insurance Fund shall be liable for compensation to the employee or his dependents - Occupational diseases are those listed by the Commission
EX: No compensation if the injury, death, or disability is the result of the employee’s (WINO)
1. Willful intention to injure or kill himself or another Ø What if it is not among those listed as an occupational disease? How can you claim?
2. Intoxication
3. Notorious negligence - If the illnesses are not occupational diseases, the claimant must present proof that he
4. Otherwise provided in the Labor Code contracted them in the course of his employment. He who alleges a fact has the burden of proving
it and a mere allegation is not evidence.
Ø What are those other ground according to the Labor Code?
Ø You work as a painter or carpenter, what could be your occupational disease?
1. Prescription - filed within 3 years from the time the action accured
2. 24 hour doctrine - Heat stroke, cramps or exhaustion
GR: Members of the national police by nature of their functions are technically on duty 24 hours a day
EX: When they are on vacation leave Ø There is an employee who is a prostitute, what could be considered as occupational disease?

Ø What is notorious negligence? - Sexually Transmitted Disease

- Notorious Negligence is a deliberate act of the employee to disregard his own personal safety
GR: Notorious Negligence resulting in serious injury or death of the employee is not compensable
EX:
1. Lack of knowledge or awareness of the peril of the seriousness of the existing danger; or
2. The unexpectedness, under the circumstances, of the accident

Ø How is it different from simple negligence?

- Simple negligence is the failure of the person to use ordinary care. It is different from notorious
negligence because in this case, no intention can be attributed to the injured to end his life. Ø Difference between the Old and New Law
 - The claimant or employee should first be on the list, if he is on it, compensable.
OLD LAW NEW LAW - If claimant or employee is not on the list, then he has the burden of proof to prove that he is
compensable.

Ø Where will you file the claim?

As to presumption of aggravation
- For illnesses, injuries or disabilities, file with the SSS or GSIS, as the case may be.
There is presumption of aggravation No presumption of aggravation - If it is denied, file with the ECC (appeal with denial)

As to employer’s right to controvert claim Ø What if the employer was negligent and such caused the employees injuries, can you demand
compensation?
The employer should controvert or dispute the Since the claim of the employee for - Employee has two options if it is work related:
claim for compensation within 14 days from compensation is directed against the State 1. Claim from the system
the date of disability, or within 10 days after he Insurance Fund, the employer does not have 2. File a quasi delict suit
had acquired knowledge thereof; otherwise, to controvert the claim
he would be considered to have waived his - Even if you claim from the system, there is but a limited amount. If you can claim more from the
right to dispute the claim and will be ordered employer, then sue the employer. Once you select a course of action, you cannot choose the other.
to pay the compensation

As to who is liable
Payment of compensation is made by the Payment of the compensation is made by the
employer SSS/GSIS through the State Insurance Fund.
The Employer’s Obligation is merely to pay his
counter contribution to the SSS
As to liability to employer
Ø After you sue your employer, can you still file a claim with the system?
- Rules on Simultaneous Recovery:
1. Simultaneous recovery under the Labor Code and the Civil Code cannot be made. The action
is selective and the employee may choose to file the claim under either. But once the election
is made, the claimant cannot opt for other recovery
2. Simultaneous recovery under the Labor Code and the SSS can be made since PD 1921 has
lifted the ban on simultaneous recovery
Ø Book IV Cases

If an ailment of an employee was aggravated The rule on aggravation of illness which gives PRESCRIPTIVE PERIOD
by his work, the employer is liable for rise to employer’s liability was abolished 3 years - counted from the day when earning capacity is impaired; not from the day disease is
compensation contracted or employee is injured
SC Ruled in a 1965 Case
As to nature of proceedings 10 years prescriptive period following 1144 of NCC
because employment obligation is created by law
Applied in ECL - still applicable today
Litigous; quasi-judicial Administrative
INJURY OR DEATH IN WORKPLACE DUE TO NEGLIGENCE OF EMPLOYER
Fails to maintain premises
Ø Theory of Aggravation – and in which law is it present? Why is no longer available?
Civil Code - employee has cause of action (quasi - delict)
Employee has 2 options
- Theory of Aggravation has been abandoned under the New Labor Code.
1. File with the System
Lazo v. ECC: “While these have been abandoned, the liberality of the law subsists. All doubts shall be
2. Sue employers based on Civil Code for collection of damages
resolved in favor of the labor”
After he is paid by one, he can no longer sue the other
Ø Presumption of Compensation, why is it no longer available in the new law?

- Presumption of Compensation has likewise been abandoned under the New Labor Code.
Lazo v. ECC: “While these have been abandoned, the liberality of the law subsists. All doubts shall be
resolved in favor of the labor”

SPECIAL LAWS
Ø Who shall be responsible for the compensation of a claim?
 even for its officers and employees, warrants the conclusion that such househelper or domestic servant
is and should be considered as a regular employee.
KASAMBAHAY LAW
Ø Is there any distinction now between the Kasambahay in the Kasambahay Law and domestic
helper in Apex case?
Ø Apex Mining Case
- The difference would be the persons covered. In Apex Mining, the definition of a house helper
FACTS: clearly contemplates such house helper or domestic servant who is employed in the employer’s home to
minister exclusively to the personal comfort and enjoyment of the employer’s family. Such definition
Private respondent Candida was hired by petitioner Apex Mining to perform laundry services at its staff covers family drivers, domestic servants, laundry women, yayas, gardeners, houseboys and other similar
house. Later on, while she was attending to her assigned task and she was hanging her laundry, she house helps. Under the Kasambahay Law, a domestic person refers to any person engaged in domestic
accidentally slipped and hit her back on a stone. As a result of the accident, she was not able to continue work within an employment relatioship such as, but not limited to, the following: general househelp,
with her work. She was permitted to go on leave for medication. She was offered the amount of P2,000.00 nursemaid or “yaya”, cook, gardener, or laundry person, but shall exclude any person who performs
which was eventually increased to P5,000.00 to persuade her to quit her job. However, she refused the domestic work only occasionally or sporadically and not on an occupational basis.
offer and preferred to return to work. Petitioner did not allow her to return to work and dismissed her.
Ø Who is a Kasambahay?
Private respondent filed a request for assistance with the Department of Labor and Employment, which
the latter rendered its decision by ordering petitioner Apex Mining to pay Candida her salary differential, - All kasambahay engaged in domestic work, whether on a live-in or live-out arrangement, such as,
emergency living allowance, 13th month pay differential and separation pay. Petitioner appealed with the but not limited to, the following:
NLRC but it was dismissed for lack of merit. 1. General househelp;
2. Nursemaid or yaya;
ISSUE: Whether or not private respondent should be treated as a mere househelper or domestic servant 3. Cook;
and not as a regular employee of petitioner. 4. Gardener;
5. Laundry person;
RULING: 6. Working children or domestic workers 15 years and above but below 18 years of age; or
7. Any person who regularly performs domestic work in one household on an occupational basis (live-
The Supreme Court affirmed the NLRC’s ruling. Private respondent should be treated as petitioner’s out arrangement).
employee.
- Excluded from the definition are:
Under Rule XIII, Section l(b), Book 3 of the Labor Code, as amended, the terms "househelper" or
"domestic servant" refer to any person, whether male or female, who renders services in and about the 1. Service providers;
employer's home and which services are usually necessary or desirable for the maintenance and 2. Family drivers;
enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's 3. Children under foster family arrangement;
family. This contemplates such househelper or domestic servant who is employed in the employer's home 4. Any other person who performs work occasionally or sporadically and not on an occupational and
to minister exclusively to the personal comfort and enjoyment of the employer's family. Such definition regular basis.
covers family drivers, domestic servants, laundry women, yayas, gardeners, houseboys and other similar
househelps. Ø Mandatory Benefits of a Kasambahay

The definition cannot be interpreted to include househelp or laundrywomen working in staffhouses of a 1. Monthly minimum wage;
company, like petitioner who attends to the needs of the company's guest and other persons availing of 2. Daily rest period of 8 (total) hours;
said facilities. By the same token, it cannot be considered to extend to then driver, houseboy, or gardener 3. Weekly rest period of 24 (uninterrupted) hours
exclusively working in the company, the staffhouses and its premises. They may not be considered as 4. 5 days annual service incentive leave with pay;
within the meaning of a "househelper" or "domestic servant" as above-defined by law. 5. 13th month pay;
6. SSS benefit;
The criteria is the personal comfort and enjoyment of the family of the employer in the home of said 7. PhilHealth benefit; and
employer. While it may be true that the nature of the work of a househelper, domestic servant or 8. Pag-IBIG benefit
laundrywoman in a home or in a company staffhouse may be similar in nature, the difference in their
circumstances is that in the former instance they are actually serving the family while in the latter case, Ø Rights of a Kasambahay
whether it is a corporation or a single proprietorship engaged in business or industry or any other
agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the 1. Minimum wage
business of the employer. In such instance, they are employees of the company or employer in the 2. Mandatory benefits such as service incentive leave and 13th month pay
business concerned entitled to the privileges of a regular employee. 3. Freedom from employer’s interference in wage disposal
4. Standard of treatment
The mere fact that the househelper or domestic servant is working within the premises of the business of - The employer or any member of the household shall not subject a domestic worker or
the employer and in relation to or in connection with its business, as in its staff houses for its guest or “kasambahay” to any kind of abuse nor inflict any form of physical violence or harassment or any act
tending to degrade the dignity of a domestic worker.
5. Board, lodging, and medical attendance - As a general rule, it is the employer who will shoulder the payment of premiums or contributions.
- The employer shall provide for basic necessities: However, if the domestic worker is receiving a wage of P5000 and above per month, the domestic worker
- At least 3 adequate meals a day, taking into consideration the kasambahay’s religious beliefs and shall pay the proportionate share in the premium payments or contributions.
cultural practices;
- Humane sleeping condition; and Ø Religious Practices of the Kasambahay
- Appropriate rest and basic medical assistance, including first-aid medicines, in case of illnesses - The employer shall respect the preferred weekly rest day of the kasambahay on religious grounds.
and injuries sustained during service without loss of benefits
Ø Minimum age of a Kasambahay
6. Right to privacy - The minimum age is 15 years old.
7. Access to outside communication
- During free time Ø Termination of the Kasambahay
- In cases of emergency, access to communication shall be granted during work time
- If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation
8. Access to education and training already earned plus the equivalent of 15 days work by way of indemnity.
9. Right to be provided a copy of the employment contract
10. Right to Certificate of Employment - If the domestic worker leaves without justifiable reason, any unpaid salary due not exceeding the
11. Right to form, join, or assist labor organization equivalent 15 days work shall be forfeited. In addition, the employer may recover from the domestic
12. Right to terminate employment based on just cause worker costs incurred related to the deployment expenses, if any: Provided, That the service has been
13. Right to exercise religious beliefs and cultural practices. terminated within six (6) months from the domestic worker’s employment.

Ø How many rest days?
- A kasambahay is entitled to at least 24 consecutive hours of rest in a week. The employer and the
domestic worker shall agree in writing on the schedule of the weekly rest day of the domestic worker.
The employer shall respect the preference of the domestic worker as to the weekly rest day when such
preference is based on religious grounds.
- Upon the severance of the employment relationship, the employer shall issue the domestic worker
within 5 days from request a certificate of employment indicating the nature, duration of the service and
work performance.
Ø Grounds for Termination

Ø Sleeping time? TERMINATION INITIATED BY THE TERMINATION INITIATED BY THE

KASAMBAHAY EMPLOYER
- A kasambahay is entitled to a total daily rest period of at least 8 hours.
1. Verbal or emotional abuse of the 1. Misconduct or willful disobedience by the
Ø Wage kasambahay by the employer or any kasambahay of the lawful order of the
member of the household; employer in connection with the former’s
- The minimum wage are as follows: 2. Inhuman treatment including physical work;
A. P2500/month for those employed in NCR abuse of the kasambahay by the employer 2. Gross or habitual neglect or inefficiency
1. P2000/month for those employed in chartered cities and first class municipalities or any member of the household; by the kasambahay in the performance of
2. P1500/month for those employed in other municipalities 3. Commission of a crime or offense duties;
against the kasambahay by the employer or 3. Fraud or willful breach of the trust
- Payment of wages any member of the household; reposed by the employer on the
A. Must be in cash, at least once a month 4. Violation by the employer of the terms kasambahay;
B. Payment of wages by means of promissory note, voucher, coupon, token, ticket, chit, or anything and conditions of the employment contract 4. Commission of a crime or offense by the
other than the cash wage is prohibited. and other standards set forth under the law; kasambahay against the person of the
C. The employer shall at all times provide the kasambahay with a copy of the pay slip every pay day 5. Any disease prejudicial to the health of employer or any immediate member of the
containing the amount paid and all deductions made, if any. the kasambahay, the employer, or employer’s family;
D. The employer shall keep the copies of the pay slip for a period of three (3) years. member/s of the household; and 5.Violation by the kasambahay of the terms
E. It shall be unlawful for the employer to interfere with the freedom of any domestic worker to dispose 6. Other causes analogous to the and conditions of the employment contract
of the latter’s wages such as: foregoing. and other standards set forth under the law;
a. Forcing, compelling or obliging the domestic worker to purchase merchandise, commodities 6. ny disease prejudicial to the health of the
or other properties from the employer or from any other person kasambahay, the employer, or member/s of
b. Making use of any store or services of such employer or any other person. the household; and
F. It shall be unlawful for an employer, directly or indirectly, to withhold the wages of the domestic 7. Other causes analogous to the foregoing.
worker.
Ø Expenses for transportation
Ø Who shoulders the payment of the premium?
- The employer, whether the Kasambahay is hired directly or through the PEA, shall pay the expenses
directly used for his/her transfer from place of origin to the place of work.
- However, the employer may recover deployment costs from the Kasambahay whenever the ANTI – SEXUAL HARASSMENT ACT
employment relationship is terminated within 6 months without just cause.
(2017 SBU MemAid, pg. 76 )
Ø Is a written contract of employment necessary for a Kasambahay? What is the effect if there is
no written contract? Ø When is there sexual harassment?
- Yes. A written contract is needed because the employers are mandated to register all domestic
workers under their employment in the Registry of Domestic Workers in the barangay where the - When a person demands, requests or otherwise requires any sexual favor from another.
employer’s residence is located. Furthermore, a written contract is needed for the protection of all
domestic workers. The written contract of employment serves as the best evidence of their employment. 1. In work-related or employment environment:
Also, without this written contract, they will not be able to enforce their rights under the law.
A. Sexual favor is made as a condition:
Ø Registration of Domestic Workers a. In the hiring or in the employment;
b. Re-employment or continued employment of said individual; or
- The employers shall register all domestic workers under their employment in the Registry of c. In granting said individual favorable compensation, terms, conditions, promotions or
Domestic Workers in the barangay where the employer’s residence is located. The Department of the privileges.
Interior and Local Government (DILG) shall, in coordination with the DOLE, formulate a registration B. Refusal to grant the sexual favor results in limiting, segregating or classifying the employee which
system for this purpose. in anyway would discriminate, deprive, or diminish employment opportunities or otherwise adversely
affect said employee;
- In cases where the employment of the domestic worker is facilitated through a private employment
agency, the PEA shall keep a copy of all employment contracts of domestic workers and shall be made C. The above acts would impair the employee’s rights and privileges under existing labor laws; and
available for verification and inspection by the DOLE. D. The above acts would result in an intimidating, hostile, or offensive environment for the
employee.
Ø Explain domestic work
2. In an education or training environment:
- Domestic work refers to work performed in or for a household or households. A. Against one who is under the care, custody or supervision of the offender;
B. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
Ø Will it include the family driver and gardener? C. When sexual favor is made a condition to the giving of a passing grade, or the granting of
honors and scholarships or the payment of a stipend, allowance, or other benefits, privileges or
- Gardeners are included. They fall within the definition of kasambahays. However, family drivers are considerations; and
not included. D. When sexual advances result in an intimidating, hostile, or offensive environment for the trainee
or apprentice.
Ø In your dormitory, there is a person cleaning your dorm, washing your clothes, etc. Is she
considered a domestic helper? Ø Who may be held liable for sexual harassment?
- Yes. A domestic helper is one who renders work for the personal comfort and enjoyment of the 1. Teacher;
family of the employer in the home of said employer. In this case, the person renders work in the 2. Instructor;
temporary home of the tenant. 3. Professor;
4. Employer;
Ø If she only visits once a week, is she considered a domestic helper? 5. Employee;
6. Manager;
- No. The work is done on an occasional basis. 7. Agent of the Employer;
8. Coach;
9. Trainor;
Ø Are you required to register them in the SSS? 10. Supervisor;
11. Any other person who, having authority, Influence, or Moral ascendency over another; or
- Yes. A domestic worker who has rendered at least 1 month of service shall be covered by the SSS, 12. Any person who directs or induces another to commit any act of sexual harassment as herein
the PhilHealth, and the Pag-IBIG, and shall be entitled to all the benefits in accordance with the pertinent defined, or who cooperates in the commission thereof by another without which it would not have been
provisions provided by law. committed , shall also be held liable under this Act.
Ø If a gardener goes to your house and waters the plants every weekend only, is he/she Ø Can an employee commit sexual harassment over his employer? How about a subordinate?
covered? Can he/she commit sexual harassment against his/her employer?
- No. The job is done on an occasional basis. - Generally, No. The person demanding, requesting,or otherwise requiring the sexual favor must
have authority, influence or moral ascendancy over another.
- However, an employee, by Directing or Inducing another to commit any act of sexual harassment
as herein defined, or who cooperates in the commission thereof by another without which it would not Ø What is the purpose of the 10-day leave? Can it be extended?
have been committed, may also be held liable for sexual harassment.
- Extendible when the necessity arises as specified in the protection order.
- NOTE: Senate Bill No. 1250 seeks to amend the current sexual harassment legislation by introducing
sexual harassment between peers and those committed to superior officers by a subordinate, or to a Ø Is VAWC a violation of the equal protection clause?
teacher by a student, or to a trainer by a trainee.
- No. Jurisprudence provides that Sex has been considered to be a valid classification allowed by
Ø Requisites of Sexual Harassment the equal protection clause.

1. The offender demands or requess or requires any sexual favor from the other regardless of Ø What is the Battered Woman Syndrome?
whether the demand request or requirement for submission is accepted by the object of the
said act - It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women
living in battering relationships as a result of cumulative abuse.
2. That the offender is:
a. an employer, Ø Is R.A. 9262 a kind of social legislation?
b. employee,
c. manager, - Yes. Based on the constitutional mandate to “...protect working women” (Sec 13, Art XII)
d. supervisor,
e. agent of the employer, It also falls squarely on the definition of social legislation, to wit:
f. teacher, “Those laws that provide particular kinds of protection to society or segments thereof in furtherance of
g. instructor, social justice”
h. professor,
i. coach, Ø (In relation to Magna Carta for Women). Why are women a special type of employee?
j. trainer or
k. any other person, - The Magna Carta for Women was created in order to give a sense of equality between men and
l. any person who directs or induces another to commit any act of sexual harassment women in the work place stemming from the fact that the Philippines is mainly a patriarchal nation. Thus,
as herein defined. OR it was enacted to ensure that women shall also experience equal work opportunities.
m. Any person who cooperates in the commission by another without which it would
NOT have been committed, shall also be held liable under this Act
SOLO PARENT ACT
3. That the offender have authority, influence or moral ascendancy over another in a work or
training or education environment, who demands, requests or otherwise requires any sexual
favor from another, Ø Who are considered solo parents?

Ø Is it necessary for law to apply, that the offender and the offended party belong to different
sexes?
- No.
ANTI – VIOLENCE AGAINST WOMEN AND CHILDREN
Ø If you’re not married, will VAWC apply to you?
- Yes. VAWC applies to acts punished therein committed against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. (Sec. 3[a], R.A. 9262).
Ø If you are an employer, what is your obligation, if any, to your employee if she is a victim of
VAWC?
- Grant of Leave with Pay. Victims under this Act shall be entitled to take a paid leave of absence up
to 10 days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations.
- Any individual who falls under any of the following categories:
1. A woman who gives birth as a result of rape and other crimes against chastity even without a
final conviction of the offender: Provided, That the mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of parenthood due to death of spouse;
3. Parent left solo or alone with the responsibility of parenthood while the spouse is detained or
is serving sentence for a criminal conviction for at least one (1) year;
4. Parent left solo or alone with the responsibility of parenthood due to physical and/or mental
incapacity of spouse as certified by a public medical practitioner;
5. Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto
separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the
children; 6) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or
annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the
custody of the children;
6. Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse
for at least one (1) year;
7. Unmarried mother/father who has preferred to keep and rear her/his child/children instead of
having others care for them or give them up to a welfare institution;
8. Any other person who solely provides parental care and support to a child or children;
9. Any family member who assumes the responsibility of head of family as a result of the death,
abandonment, disappearance or prolonged absence of the parents or solo parent.
Ø Common element among types of solo parents?
 d. In actual fare for land transportation on travel in PUBS, PUJS, taxis, AUVS, shuttle services
- They have been left alone with the responsibility of parenthood. and public railways including LRT, MRT, PNR;
e. In actual transportation fare for domestic air transport services and sea shipping vessels and the
Ø Benefits of a solo parent like, based on the actual fare and advanced booking;
f. On the utilization of services in hotels and similar lodging establishments, restaurants and recreation
1. Parental Leave of not more than 7 working days; centers;
2. Prohibition against discrimination; and g. On admission fees charged by theaters, cinema houses and concert halls, circuses, leisure
3. Flexible Work Schedule and amusement; and
4. Allocation in Housing Projects h. On funeral and burial services for the death of senior citizens
5. Comprehensive Health Care Programs 2. exemption from the payment of individual income taxes of senior citizens who are considered
to be minimum wage earners
Ø Flexible Work Schedule 3. grant of a minimum of 5% discount relative to the monthly utilization of water and electricity;
provided the individual meters for the foregoing utilities are registered in the name of the senior citizen
- The employer shall provide for a flexible work schedule for solo parents: Provided, That the same residing therein; provided, further, the consumption does not exceed 100kilowatt hours of electricity and
shall not affect individual and company productivity: Provided further, That any employer may request 30 cubic meters of water
exemption from the above requirements from the DOLE on certain meritorious grounds. 4. exemption from training fees for socioeconomic programs
5. free medical and dental services, diagnostic and laboratory fees
- In the case of employees in the government service, flexible working hours will be subject to the 6. Free vaccination against influenza virus and pneumococcal virus by the DOH for indigent
discretion of the head of the agency. In no case shall the weekly working hours be reduced in the event senior citizen patients
the agency adopts the flexible working hours schedule format (flexitime). In the adoption of flexi-time, the 7. educational assistance to senior citizens
core working hours shall be prescribed taking into consideration the needs of the service. (IRR of R.A. 8. to the extent praticable and feasible, the continuance of the same benefits and privileges given
8972, Art. V, Sec. 16) by the GSIS, SSS and the PAG-IBIG
9. special discounts in special programs for senior citizens on purchase of basic commodities
Ø Purpose of FWS 10. express lanes for senior citizens in all commercial and government establishments. in the absence
thereof, priority shall be given to them
- To enable him/her to perform parental duties and responsibilities where physical presence is 11. death benefit assistance of a minimum shall be given to the nearest surviving relative of the
required deceased senior citizen

Ø Is it necessary, for you to be considered a solo parent, to have children? Ø Are they entitled to discount on legal services by a lawyer?
- No.
- No, the law only requires that a child is living with him/her, dependent for support, unmarried,
unemployed and below 18 years old, or 18 years old and above but is incapable of self-support and/or Ø You are supposed to show something for you to avail of the discount, what do you have to
with physical/mental defect/disability. show?

Ø Rights and privileges of a solo parent - An identification card issued by the Office of the Senior Citizen Affairs (OSCA) of the place where
the senior citizen resides: Provided, That the identification card issued by the particular OSCA shall be
- Parental Leave of not more than 7 working days every year in addition to leave privileges under honored nationwide;
existing laws.
Ø If you don’t have an ID from OSCA, can you still avail of the discount?
- Yes
SENIOR CITIZEN
Ø Why does the law mention of passport? Is it not just another piece of identification?
Ø Who is a senior citizen?
- In the absence of an identification card issued by the OSCA, the privileges may still be availed of
by submitting other proof deemed sufficient to establish the that the senior citizen is a citizen of the the
- Any resident citizen of the Philippines at least 60 years old
Republic and is at least 60 years of age
Ø What are the rights, privileges, and benefits of a senior citizen?
PATERNITY LEAVE
1. Grant of 20% discount and exemption from the VAT, if applicable, on the sale of the following
goods and services from all establishments, for the exclusive use and enjoyment or availment of the
senior citizen: Ø What is the purpose of paternity leave?
a. On the purchase of medicines, including the purchase of influenza and pneumococcal vaccines,
and such other essential medical supplies, accessories and equipment to be determined by the DOH; - To enable the husband to lend support to his wife during the period of recovery and/or in the nursing
b. On the professional fees of attending physicians in all private hospitals, medical facilities, of the newly born child.
outpatient clinics, and home health services;
c. On medical and dental services, diagnostic and laboratory fees in all private hospitals, etc.; Ø When can it be availed?
- Can be availed of for the first four deliveries or miscarriages of the employees’s lawful spouse.
Ø X and Y are married to each other. Y is a domestic helper in Hong Kong and X, the husband, is
working somewhere in the Philippines. Y went back to the Philippines to give birth. Can X avail of
the paternity leave?
- Yes. Although one of the conditions for entitlement is that the employee is cohabiting with his
spouse at the time she gives birth or suffers a miscarriage, if the spouses are not physically living
together because of the workstation or occupation, the male employee is still entitled to the paternity
leave benefit. (DOLE 2014 Handbook on Worker’s Monetary Statutory Benefits)
Ø Y was found pregnant on February 1, can the husband avail of the leave on May 1?
- The male employee may avail of the paternity leave benefit before or during the delivery, subject
to the employer’s approval. The married male employee shall apply for paternity leave with his
employer within a reasonable period of time from the expected date of the delivery by the pregnant
spouse or within such period as may be provided by company rules and regulations or by collective
bargaining agreement
Ø W delivered on October 1, can the husband avail of the leave on October 2? On January 15?
On June 15? December 15, the following year?
- Paternity leave benefits shall granted to the qualified employee after the delivery by his wife,
without prejudice to an employer allowing an employee to avail of the benefit before or during the
delivery; provided, that the total number of days shall not exceed 7 days for each delivery.
Ø What if five months from date of delivery?
- Paternity leave benefits shall granted to the qualified employee after the delivery by his wife, without
prejudice to an employer allowing an employee to avail of the benefit before or during the delivery;
provided, that the total number of days shall not exceed 7 days for each delivery.
Ø What is the coverage of paternity leave?
- Every married male employee in the private sector shall be entitled to paternity leave benefits of 7
days with full pay under such terms and conditions as provided by law.
RETIREMENT PAY
Ø 2 kinds of retirement
1. Optional - 60 y.o.
2. Compulsory - 65 y.o.
Ø How much is the retirement pay?
- Under the Labor Code of the Philippines, unless the parties provide for broader inclusions, the term
one half (1/2) month salary shall mean fifteen (15) days plus one-twelfth (Under the Labor Code of the
Philippines, unless the parties provide for broader inclusions, the term one half (1/2) month salary shall
mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more
than five (5) days of service incentive leaves.
- Thus, the minimum retirement pay is one-half (1/2) month salary for every year of service, a fraction
of six (6) months being considered as one (1) whole year. “1/2 month salary” shall include all of the
following:
1. 15 days salary based on the latest salary rate
2. Cash equivalent of 5 days service incentive leave
3. 1/12 of the thirteenth month pay (1/12 x 365/12 = 2.53)
- (In the absence of a retirement plan or agreement providing for retirement benefits of employees)
NIGHT WORKERS
Arts. 154-161 LC, RA 10151
Ø Who are considered night workers?
- D.O. No. 119-12 (dated January 20, 2012) defines a night worker as “any employed person whose
work covers the period from 10:00 in the evening to 6:00 in the morning, provided that the worker performs
no less than seven consecutive hours of work.”
Ø Let us say an employee starts working from 7PM, is he a night worker?
- It depends. If he works for 7 consecutive hours from 7PM, covering a relatively big portion of the
10PM-6AM period.
Ø If you work from 10pm to 12pm, are you considered a night worker? Why?
- Yes. So long as within that range you have worked for 7 consecutive hours.
Ø 7 consecutive hours, isn’t he undertime?
- No.
Ø 1am to 8am? 1am to 9am? 5am to 1pm?
- Yes. Yes. No.
Ø When does night time begin?
- Based on the intervals given for night time workers and night shift differential, 10:00 PM.
Ø What is the main benefit to an employee who is considered a night worker?
- He is entitled to NSD.
- Also, the law protects the workers by requiring employers to: (a) provide certain facilities such as
sleeping or lactation quarters and means of transport; (b) conduct of medical examination to determine
fitness for night work; and (c) the observance of legal process to decide appropriate action where a worker
is found unfit (usually includes the process of transferring the worker to day work, if practicable).
Ø Are they entitled to night shift differential?
- Yes. NSD is the additional compensation of not less than 10% of an employee’s regular wage for
every hour of work done between 10:00PM and 6:00AM, whether or not such period is part of the worker’s
regular shift.
Ø Among the facilities, are the employers required to provide for shuttle services?
- Yes. Under Art. 156, ‘the employers are required to provide transportation from the work premises
to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE.’
SSS and GSIS LAW
Ø Meaning of survivorship benefits
- When a member or pensioner dies, the beneficiaries shall be entitled to survivorship benefits
provided in Sections 21 and 22 hereunder subject to the conditions therein provided for. The survivorship
pension shall consist of:
1. the basic survivorship pension which is fifty percent (50%) of the basic monthly pension; and
2. the dependent children’s pension not exceeding fifty percent (50%) of the basic monthly
pension.
Ø Highlights of SSS and GSIS Law
SSS
It is the policy of the Republic of the Philippines to
establish, develop, promote and perfect a sound
and viable tax-exempt social security service
suitable to the needs of the people throughout the
Philippines which shall promote social justice and
provide meaningful protection to members and
their beneficiaries against the hazards of
disability, sickness, maternity, old age, death, and
other contingencies resulting in loss of income or
financial burden
GSIS
Membership in the GSIS shall be compulsory for
all employees receiving compensation who have
not reached the compulsory retirement age,
irrespective of employment status, except
members of the Armed Forces of the Philippines
and the Philippine National Police, subject to the
condition that they must settle first their financial
obligation with the GSIS, and contractuals who
have no employer and employee relationship with
the agencies they serve.
1. The female member should be a SSS Member
2. Employed at the time of the delivery, miscarriage or abortion
3. She must have given the required notification to the SSS thru her employer
4. Her employer must have paid at least 3months of maternity contributions within 12months
period immediately before her semester of contingency
Ø Is it the same with the GSIS Law? There is no need to be married?
- No. According to CA 647 which is applied in the absence of a provision in GSIS Law, only married
women can enjoy such benefits. However, in the private sector, unmarried pregnant women enjoy
maternity leave benefits. RA 8282 (SSS LAW) provides for maternity leave of sixty 60 days for normal
delivery, or 78 days in case caesarian delivery to all pregnant employees in the private sector. No
distinctions are made between married and unmarried women in the private sector.
Ø Under the Civil Service Law, is a woman who is unmarried, qualified for maternity benefit under
the GSIS Law?

Ø Who are the primary beneficiaries under GSIS? - Section 12, Rule 16 of the Omnibus Civil Service Rules provides that only married women employees
who have rendered an aggregate of 2 years or more of service shall be entitled to full maternity leave
- Dependents: benefits.
1. The legitimate spouse dependent for support upon the member or pensioner
2. The legitimate, legitimated, legally adopted child including the illegitimate child who is:
LIMITED PORTABILITY LAW
a. Unmarried, not gainfully employes, not over the age of majority
b. Is over the age of majority but incapacitated and incapable of self-support due to a mental or
physical defect acquired prior to age of majority
Ø When does it take place?
- Primary beneficiaries includes the dependent parents and subject to the restrictions on the
dependent children, the legitimate descendants (RA 8291, Section 2)
- It shall apply in the following instances:
1. If a worker is not qualfied for any benefits from both System
Ø Maternity benefit in GSIS Law
2. If a worker in the public sector is not qualified for any benefits in the GSIS
3. If a worker in the private sector is not qualified for any benefits from the SSS.
- In the absence of specific provision regarding maternity benefits in the GSIS Law, Commonwealth
647 otherwise known as “An act to grant maternity leave to married women who are in the service of any
- Under this law, retirees may combine their years of service in the private sector represented by
government or any of its instrumentalities” is followed.
contributions to the Social Security System with their government service and contributions to the GSIS
- CA 647 Section 1 provides:
to satisfy the required years of service under PD 1146 and RA 8291.
Married women who are permanently or temporarily appointed in the service of the Government, or in
any of its branches, subdivisions, agencies, or instrumentalities, including the corporations and
Ø Totalization
enterprises owned or controlled by the Government, shall, in addition to the vacation and sick leave which
they may enjoy now, be entitled in case of pregnancy to a maternity leave of sixty days subject to the
- It refers to the process of adding up the periods of creditable services or contributions under each
following conditions.
of the systems, for purposes of eligibility and computations of benefit
A. Permanent and regular employees who have rendered two or more years of continuous
service, shall be entitled to maternity leave with full pay
Ø If there is transfer, should totalization be observed immediately?
B. Permanent and regular employees who have rendered less than two years of continuous
service, shall be entitled to half pay;
- Only if not qualified for benefits in any of the 2 systems
C. Temporary employees shall be entitled to maternity leave without pay and shall be readmitted
- If there is no transfer from one system to the other, this law cannot be applied
to the service at the end of their leave. No employee shall be refused readmission to the service on the
ground of absence on account of maternity
COMPREHENSIVE AGRARIAN REFORM PROGRAM
Ø Maternity benefit in SSS Law

- A female member who has paid at least 3 monthly contributions in the 12 month period immediately
preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent
to 100% of her average daily salary credit of 60 days or 78 days in case of caesarian delivery
Ø Is there a need for the woman to be married?
- No. The following are the qualifications for Entitlement of Maternity Benefit
Ø Is CARP valid? In the case of Association of Small Landowners, is CARP a valid exercise of
police power?
- No. The taking in this case is not an exercise of police power but of the power of eminent domain.
In this case, in order to carry out the regulation, the landowners became necessarily deprived of their
land in excess of the maximum area allowed, thus, payment of just compensation is imperative. The
taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of
the title to and the physical possession of the said excess and all beneficial rights acrruing to the owner
in favor of the farmer-beneficiary.
Ø Describe eminent domain
- Eminent Domain is an inherent power of the state that enables it to forcibly acquire private lands
intended for public use upon payment of just compensation.
- No person may own or retain, directly or indirectly, any public or private agricultural land, the size
of which shall vary according to factors governing a viable family-size farm, such as commodity produced,
terrain, infrastructure, and soil fertility as determined by the Presidential Agrarian Reform Council (PARC)
created hereunder, but in no case shall retention by the landowner exceed five (5) hectares. (Section 6)
Ø Basis of CARP

Ø In the case of Luz Farms, what type of lands are excluded from CARP?
- In this case, the Supreme Court has excluded agricultural Lands devoted to Commercial LiveStock,
Poultry and Swine Raising form the coverage of CARL.
Ø What lands are covered by CARP?
- The Comprehensive Agrarian Reform Program is founded on the right of farmers and regular
farmworkers, who are landless, to own direclty or collectively the lands they till, in the case of other
farmworkers, to receive a just share of the fruits thereof. (Sec 4 Art. 14 1987 Consti)
Ø Difference of Land Reform under Marcos and Agrarian Reform now

- The law shall cover, regardless of tenurial arrangement and commodity produced, all public and LAND REFORM AGRARIAN REFORM
private agricultural lands. Specifically the following lands: (Section 4)
1. All alienable and disposable lands of the public domain devoted to or suitable to agriculture Physical distribution of land Actual redistribution of lands including totality of
1. all lands of the public domain in excess of the specific limits as determined by the Congress factors and support services (broader)
2. All other lands owned by the Government devoted to or suitable for agriculture
3. all private lands devoted to or suitable for agriculture regardless of the agricultural products
raised or that can be raised thereon
Ø What are these factors and support services?
Ø Who are considered landless beneficiaries? Are they actually landless?
- Surveying and Title Services
- Landless farmers, including agricultural lessees, tenants, as well as regular, seasonal and other
- Irrigation
farmworkers.
- Infrastructure and public works
- No. they are not necessarily landless. The Department of Agrarian Reform (DAR) identifies and
- Government subsidies
screens potential beneficiaries and validates their qualifications. For example, to qualify, you must be at
- Extending credit
least 15 years old, be a resident of the barangay where the land holding is located, and own no more
- Organic fertilizers
than 3 hectares of agricultural land.
Ø If you are a beneficiary and you are given land, is it free?
Ø Modes of acquisition
- No. You will have to pay 30 annual amortizations to the Land Bank.
1. Voluntary Transfer (Section 20)
Ø Is there anything special about CARP that makes it different from eminent domain?
2. Compulsory Acquisition (Section 16)
1. The CARP is the exercise of Police Power through expropriation or eminent domain.
Ø Who are qualified beneficiaries? (Section 22)
2. In CARP, the payment of just compensation is not fully in cash but in cash and kind, at the
option of the landowner. In eminent domain, the property shall not be expropriated without full payment
1. agricultural lessees and share tenants;
of just compensation.
2. regular farmworkers;
3. Retention Limit of the Land-owner and Distribution Limit to the Beneficiaries
3. seasonal farmworkers;
4. other farmworkers;
5. actual tillers or occupants of public lands;
6. collectives or cooperatives of the above beneficiaries; and
Ø Story of Hercules as mention in the Association case?
7. others directly working on the land.
What is its relevance?
Ø Disqualified beneficiaries
- In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life
on his way to Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung
1. Beneficiaries under Presidential Decree No. 27 who have culpably sold, disposed of, or
his adversary to the ground thinking him dead, but Antaeus rose even stronger to resume their struggle.
abandoned their land
This happened several times to Hercules' increasing amazement. Finally, as they continued grappling, it
2. Any beneficiary guilty of negligence or misuse of the land or any support extended to him
dawned on Hercules that Antaeus was the son of Gaea and could never die as long as any part of his
3. Beneficiary who owns more than three (3) hectares of agricultural land
body was touching his Mother Earth. Thus forewarned, Hercules then held Antaeus up in the air, beyond
4. Beneficiaries whose land have been subject of foreclosure by the Land Bank of the Philippines
the reach of the sustaining soil, and crushed him to death.
- The story, in relation to CARP, shows that the land is the giver of life. Without land to call their own,
Ø Retention limit
the people of our country will eventually weaken and die.

Ø Fable of Camel in the Gonzales case – how do you relate it to the case?
- Fable of the camel: a camel sought shelter inside its master's tent during a storm, and once inside,
kicked its master out of the tent. In the Gonzales Case, Agcaoile’s tolerance of the Gonzales' supposedly
temporary use of some vacant lots in the subdivision was seized by the latter as a weapon to deprive the
respondents of their land. Thus, a person who is not lawfully under a tenancy relationship with the owner,
and whose presence in the land was merely tolerated, cannot become a beneficiary under CARP.
Ø Why did Justice Cruz, in the Association case, say that CARP is a revolutionary type of
appropriation?
- What we deal with here is a revolutionary kind of expropriation. It affects all private agricultural
lands whenever found and of whatever kind as long as they are in excess of the maximum retention limits
allowed their owners. This kind of expropriation is intended for the benefit not only of a particular
community or of a small segment of the population but of the entire Filipino nation, from all levels of our
society, from the impoverished farmer to the land-glutted owner. Its purpose does not cover only the
whole territory of this country but goes beyond in time to the foreseeable future, which it hopes to secure
and edify with the vision and the sacrifice of the present generation of Filipinos. Generations yet to come
are as involved in this program as we are today, although hopefully only as beneficiaries of a richer and
more fulfilling life we will guarantee to them tomorrow through our thoughtfulness today. And, finally, let
it not be forgotten that it is no less than the Constitution itself that has ordained this revolution in the
farms, calling for "a just distribution" among the farmers of lands that have heretofore been the prison of
their dreams but can now become the key at least to their deliverance.
Ø Isues raised by the petitioner in the Association case.
1. WON president has power to promulgate Proc no. 131 and EO 228 and 229
2. WON proc no 131 is a valid appropriation
3. WON proc 131 and eo 229 is invalid because it does not provide retention limits
4. Whether the statute is an exercise of Police power or eminent domain
5. WON the content and manner of just compensation provided in CARP law is constitutional
Ø Morta case
FACTS:
Morta filed 2 cases for damages with preliminary injuction with the MTC of Albay alleging that that
respondents through the instigation of Atty. Baranda, gathered pilinuts, anahaw leaves, and coconuts
from their respective land, delivered the produce to Atty. Mariano Baranda, Jr., and destroyed their
banana and pineapple plants. Respondents claimed that petitioners were not the owners of the land in
question. They alleged that the torrens titles of the land indicated a certain Gil Opiana as the registered
owner. Gil Opiana was the father of Josefina Opiana-Baraclan who inherited the lots upon the former's
death. Respondent
Jaime Occidental contended that he was a bona fide tenant of Josefina Opiana-Baraclan. Municipal Trial
Court rendered decision 5 in favor of petitioners. It held that petitioners had been in actual, continuous,
open and adverse possession of the land in question for forty-five (45) years. Respondents appealed to
the Regional Trial Court, Ligao, Albay. They questioned the trial court's jurisdiction contending that the
case was cognizable by the Department of Agrarian Reform Adjudicatory Board (DARAB). Regional Trial
Court rendered decision reversing that of the Municipal Trial Court and dismissing the above cases, 7
ruling that these cases for damages are tenancy-related problems which fall under the original and
exclusive jurisdiction of the DARAB. petitioners filed a petition for review 8 with the Court of Appeals,
contesting the decision of the Regional Trial Court. On May 31, 1995, the Court of Appeals rendered
decision affirming the lower court's ruling.
Petitioners filed a motion for reconsideration stressing that there was no tenancy relationship between
the parties which was subsequently denied hence this action.
ISSUE: Whether or not DARAB has jurisdiction
RULING:
No. For DARAB to have jurisdiction over a case, there must exist a tenancy relationship between the
parties. In order for a tenancy agreement to take hold over a dispute, it would be essential to establish
all its indispensable elements, to wit:
1. that the parties are the landowner and the tenant or agricultural lessee;
2. that the subject matter of the relationship is an agricultural land;
3. that there is consent between the parties to the relationship;
4. that the purpose of the relationship is to bring about agricultural production;
5. that there is personal cultivation on the part of the tenant or agricultural lessee; and
6. that the harvest is shared between the landowner and the tenant or agricultural lessee.
The jurisdiction of the Department of Agrarian Reforms is limited to the following:
1. adjudication of all matters involving implementation of agrarian reform;
2. resolution of agrarian conflicts and land-tenure related problems; and
3. approval and disapproval of the conversion, restructuring or readjustment of agricultural lands
into residential, commercial, industrial, and other nonagricultural uses.
The issue of ownership cannot be settled by the DARAB since it is definitely outside its jurisdiction.
Whatever findings made by the DARAB regarding the ownership of the land are not conclusive to settle
the matter. The issue of ownership shall be resolved in a separate proceeding before the appropriate trial
court between the claimants thereof.
At any rate, whoever is declared to be the rightful owner of the land, the case cannot be considered as
tenancy-related for it still fails to comply with the other requirements. Assuming arguendo that Josefina
Opiana-Baraclan is the owner, then the case is not between the landowner and tenant. If, however, Morta
is the landowner, Occidental cannot claim that there is consent to a landowner-tenant relationship
between him and Morta. Thus, for failure to comply with the above requisites, we conclude that the issue
involved is not tenancy-related cognizable by the DARAB.
Ø Functions of DARAB
1. Exercises both original and appellate jurisdic-tion
2. Exercises functional supervision over the RARADs and PARADs
Ø Compulsory acquisition procedure- Section 16
1. Notice to acquire the land shall be sent to the land-owner and the beneficiaries. The notice
shall also be posted in a conspicuous place in the municipal build-ing and the baran-gay hall of the place
where the property is located.
2. Within thirty (30) days from receipt of the written notice, the landowner shall inform the DAR of
his acceptance or rejection of the offer.
3. If the offer is accepted, the LBP pays the landowner and within thirty (30) days, the landowner
executes and delivers a deed of transfer to the Government and surrenders the Certificate of Title and
other muniments of title.
4. In case of rejection or failure to reply, the DAR shall conduct summary administrative
proceedings to determine the compensa-tion. If he does concur with the compensa-tion deter-mined by
the DAR, he can the matter to the Courts.
5. Payment of the just compensation as determined by the DAR or the Court. beneficiaries and all other arrangements alternative to physical redistribution of land, such as production
6. Registration with the Register of Deeds for the issu-ance of Transfer Certificate of Title in the or profit sharing, labour management and the distribution of shares of stock which allow beneficiaries to
name of the Republic of the Philip-pines. receive a just share of the fruits of the land they work.”
7. Standing Crops: The landowner shall retain his share of any standing crops unharvested at
the time the DAR shall take posses-sion of the land and shall be given reason-able time to harvest the The SC believed that Sec. 31 of RA 6657 is NOT inconsistent with the State’s commitment to farmers
same (Section 28). and farmworkers to advance their interests under the policy of social justice. This is believed to be the
modality of the legislature for collective ownership by which the imperatives of social justice may be
Ø Who are qualified children? approximated, if not achieved.

- Section 6 of RA 6657, qualified children are those child of the landowner to which 3 hectares of
land is awarded, before any award is given to any farmer, subject to the ff requisites:
1. that he is at least 15 years of age; and
2. that he is actually tilling the land or directly managing the farm
Ø Story of Hacienda Luisita
FACTS
Farmworker beneficiaries (FWBs) complement of Hacienda Luisita saccepted HLI's Stock Distribution
Option Plan which embodied among others that the percentage of the value of the agricultural land of
the hacienda in relation to the total assets shall be distributed by HLI to FWBs under a stock distribution
plan.
FARM seeks to invalidate the Section 31 of RA 6657 because it allows corporations to use stock
distribution as its mode of distribution or transfer instead of an outright agricultural land transfer, which
they believe impairs the fundamental right of farmers and farmworkers envisioned under Section 4, Article
XIII of the Constitution. HLI counters this matter by saying that agrarian reform is not only about transfer
of land ownership to farmers and other qualified beneficiaries.
ISSUE: Whether or not S31 of RA 6657 is unconstitutional.
Also as contended by FARM that stock certificates do not equate to land ownership, still, the Corporation
Code is clear that the FWB becomes a stockholder who acquires an equitable interest in the assets of
the corporation, which includes the agricultural lands. A share of stock typifies an aliquot part of the
corporation’s property, or right to share in its proceeds to the extent when distributed according to law
and equity and that its holder is not the owner of any part of the capital of the corporation. However, the
FWBs will ultimately own the agricultural lands owned by the corporation when the latter is eventually
dissolved and liquidated.
LECTURE ON CARL
This is in consonance with the Constitution; particularly the provisions on Social Justice and
Agrarian reform
ASSOCIATION OF SMALL LAND OWNERS CASE
CARL was held to be constitutional
There is just compensation under the law – valid
Payment not necessarily in cash because traditionally, when we speak of just compensation – if
you are a private land owner, you had to be paid in cash.
Here, we have a revolutionary kind of expropriation because actually the principal purpose is
not actually Eminent Domain but it is a Police Power being exercised by the State, so the
payment scheme provided in the law was held to be valid.

RULING: 6 KEY CONCEPTS

No, the same is valid and constitutional. 1. Coverage of the Law

A. Agricultural land; whether private or public
The Supreme Court ruled that there appeared to have been no breach of the fundamental law. Section
4, Article XIII of the 1987 Constitution reads: 2. Exclusions
NATALIA REALTY CASE
“The State shall, by law, undertake an agrarian reform program founded on the right of the farmers and - Private Subdivisions
regular farmworkers, who are landless, to OWN directly or COLLECTIVELY THE LANDS THEY TILL or, LUZ FARMS CASE
in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall - Those devoted to poultry, swine and livestock
encourage and undertake the just distribution of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may prescribe, taking into account ecological, 1. Retention
developmental, or equity considerations, and subject to the payment of just compensation. In determining
retention limits, the State shall respect the right of small landowners. The State shall further provide 2. Beneficiaries
incentives for voluntary land-sharing.” A. Qualifications
B. Priority in acquisition and distribution
The law is clear – farmers and regular farmworkers have a right to OWN DIRECTLY OR COLLECTIVELY C. Procedure in acquisition and distribution
THE LANDS THEY TILL. The basic law allows two modes of land distribution—direct and indirect a. Identification of lands
ownership. No language is found in the 1987 Constitution that disqualifies or prohibits corporations or b. Agencies involved – Barangay Agrarian Reform Council
cooperatives of farmers from being the legal entity through which collective ownership can be exercised. D. Beneficiary still has to pay – but in amortization
The term “collectively” is said to allow indirect ownership of land and not just outright agricultural land E. Beneficiaries cannot sell the land for 10 years
transfer. This is in recognition of the fact that land reform may become successful even if it is done
through the medium of juridical entities composed of farmers. 3. How will these lands be distributed
A. Just Compensation
Even in the definition of agrarian reform itself in RA 6657 allows stock distribution— “the redistribution of B. Voluntary and Compulsory Acquisition
lands… to farmers and regular farmworkers who are landless… to lift the economic status of the
4. Jurisdiction of the DARAB – Department of Agrarian Reform Adjudication Board
- It has primary jurisdiction over matters involving the implementation of CARP and land
tenancy questions, except on two matters:
A. Amount of just compensation; That is within the jurisdiction of the Special Agrarian Court,
which are RTCs
B. Prosecution of criminal cases related to Agrarian Reform Law

HACIENDA LUISITA CASE