2010 PRE-WEEK BAR EXAM NOTES ON LABOR LAW - PART1 ...

Bar Review Guide on Labor Law 2010 Bar Examinations Prof. Joselito Guianan Chan NOTICE: Selling these NOTES is ABSOLUTELY PROHIBITED!!!

Bar Review Guide on Labor Law 2010 Bar Examinations Prof. Joselito Guianan Chan

NOTICE: Selling these NOTES is ABSOLUTELY PROHIBITED!!!

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STATEMENT OF COVERAGE This Bar Review Guide is presented in the form of an outline of basic

principles which bar reviewees may use as a quick guide on the significant areas of labor law in the 2010 Bar Examination. This is presented in five (5) parts: PART ONE covers New Laws; PART TWO covers Books 1 to 4 of the Labor Code and some important social legislation; PART THREE covers Book 5; PART FOUR covers Books 6 and 7 of the Labor Code; and PART FIVE features the coverage of the 2010 Bar Examination in Labor Law and a survey of all questions given in the Bar Examination in Labor Law for the last twenty (20) years – from 1990 to 2009.

LABOR LAWS OF THE PHILIPPINES

PART ONE

NEW LAWS

• What are the new laws affecting labor law?

There are seven (7) laws that have been enacted lately which have significant impact on labor laws. They are as follows:

1. REPUBLIC ACT No. 10022 - AN ACT AMENDING REPUBLIC ACT NO. 8042, OTHERWISE KNOWN AS THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995, AS AMENDED, FURTHER IMPROVING THE STANDARD OF PROTECTION AND PROMOTION OF THE WELFARE OF MIGRANT WORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS IN DISTRESS, AND FOR OTHER PURPOSES. [Approved on March 08, 2010]. chanrobles&associates

2. REPUBLIC ACT NO. 9849 - AN ACT DECLARING THE TENTH DAY OF ZHUL HIJJA, THE TWELFTH MONTH OF THE ISLAMIC CALENDAR, A NATIONAL HOLIDAY FOR THE OBSERVANCE OF EIDULADHA, FURTHER AMENDING FOR THE PURPOSE SECTION 26, CHAPTER 7, BOOK I OF EXECUTIVE ORDER NO. 292, OTHERWISE KNOWN AS THE ADMINISTRATIVE CODE OF 1987, AS AMENDED. [Approved on December 11, 2009].

3. REPUBLIC ACT NO. 9710 - AN ACT PROVIDING FOR THE MAGNA CARTA OF WOMENcralaw[Approved on August 14, 2009].

4. REPUBLIC ACT NO. 9492 - AN ACT RATIONALIZING THE CELEBRATION OF NATIONAL HOLIDAYS AMENDING FOR THE PURPOSE SECTION 26, CHAPTER 7, BOOK I OF EXECUTIVE ORDER NO. 292, AS AMENDED, OTHERWISE KNOWN AS THE ADMINISTRATIVE CODE OF 1987 cralaw [Approved on July 25, 2007]. cralaw

5. REPUBLIC ACT NO. 9481 - AN ACT STRENGTHENING THE WORKERS' CONSTITUTIONAL RIGHT TO SELF-ORGANIZATION, AMENDING FOR THE

CHAN ROBLES VIRTUAL LAW LIBRARY

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PURPOSE PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES (Lapsed into law on May 25, 2007 and became effective on June 14, 2007).

6. REPUBLIC ACT NO. 9422 - AN ACT TO STRENGTHEN THE REGULATORY FUNCTIONS OF THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA). cralaw [Approved on April 10, 2007].

7. REPUBLIC ACT NO. 9347 - AN ACT RATIONALIZING THE COMPOSITION AND FUNCTIONS OF THE NATIONAL LABOR RELATIONS COMMISSION, AMENDING FOR THIS PURPOSE ARTICLE 213, 214, 215 AND 216 OF P.D. NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES. [Lapsed into law on JULY 27, 2006, without the signature of the President, in accordance with Article VI, Section 27 (1) of the Constitution].

• What are the provisions of the above-mentioned laws pertinent to labor law? I. REPUBLIC ACT No. 10022

This law amended several provisions of R.A. No. 8042 [Migrant Workers and Overseas Filipinos Act of 1995], the most noteworthy of which are as follows: chanrobles&associates

1. New definition of “Overseas Filipino Worker.”

"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." (Amending Section 3, paragraph (a) of Republic Act No. 8042, as amended). cralaw

2. Deployment of migrant workers only to compliant countries.

The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:

(a) It has existing labor and social laws protecting the rights of workers, including migrant workers;

(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and

(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers:

Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof.

In the absence of a clear showing that any of the aforementioned guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issued by the Philippine Overseas Employment Administration (POEA).


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The members of the POEA Governing Board who actually voted in favor of an order allowing the deployment of migrant workers without any of the aforementioned guarantees shall suffer the penalties of removal or dismissal from service with disqualification to hold any appointive public office for five (5) years, Further, the government official or employee responsible for the issuance of the permit or for allowing the deployment of migrant workers in violation of this section and in direct contravention of an order by the POEA Governing Board prohibiting deployment shall be meted the same penalties in this section.

For this purpose, the Department of Foreign Affairs, through its foreign posts, shall issue a certification to the POEA, specifying therein the pertinent provisions of the receiving country's labor/social law, or the convention/declaration/resolution, or the bilateral agreement/arrangement which protect the rights of migrant workers.

The State shall also allow the deployment of overseas Filipino workers to vessels navigating the foreign seas or to installations located offshore or on high seas whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers.

The State shall likewise allow the deployment of overseas Filipino workers to companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by the POEA and in accordance with internationally-accepted standards." (Amending Section 4 of Republic Act No. 8042, as amended). chanrobles&associates

3. Termination or Ban on Deployment.

Notwithstanding the provisions of Section 4 hereof (See above), in pursuit of the national interest or when public welfare so requires, the POEA Governing Board, after consultation with the Department of Foreign Affairs, may, at any time, terminate or impose a ban on the deployment of migrant workers." (Amending Section 5 of Republic Act No. 8042, as amended).

4. New definition of Illegal recruitment.

For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

(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 and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;

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


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(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 the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; chanrobles&associates

(d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;

(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;

(h) To fail to submit 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 and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment;

(j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency; chanrobles&associates

(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

(m) 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 without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: chanrobles&associates


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(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;

(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; chanrobles&associates

(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and

(7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas 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. cralaw

The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused. chanrobles&associates

In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.

The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations. (Amending Section 6 of Republic Act No. 8042, as amended).


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5. New scheme of penalties for illegal recruitment.

(a) 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 than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).

(b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein.

Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. chanrobles&associates

(c) Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings.

In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic. (Amending Section 7 of Republic Act No. 8042, as amended).

6. Money claims of OFWs.

"SEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry. cralaw

"The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be 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 the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.

"Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. cralaw

"Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority. chanrobles&associates


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"In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement of his placement fee and the deductions made with interest at 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.1

"In case of a final and executory judgment against a foreign employer/principal, it shall be automatically disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and from recruiting and hiring Filipino workers until and unless it fully satisfies the judgment award. cralaw

"Noncompliance with the mandatory periods for resolutions of cases provided under this section shall subject the responsible officials to any or all of the following penalties:

"(a) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith; cralaw

"(b) Suspension for not more than ninety (90) days; or

"(c) Dismissal from the service with disqualification to hold any appointive public office for five (5) years. chanrobles&associates

"Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph." (Amending Section 10 of Republic Act No. 8042, as amended).

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II. REPUBLIC ACT No. 9849 and REPUBLIC ACT NO. 9492.

These two (2) laws deal with celebration of regular and special holidays.

R.A. No. 9492 [Approved on July 25, 2007], introduces Eidul Fitr as a new regular holiday; while R.A. No. 9849 [Approved on December 11, 2009], introduces Eidul Adha as a new regular holiday. cralaw

Consequent to these laws, the total number of guaranteed paid regular holidays is TWELVE (12) per year.

Hereunder are the holidays mandated under R.A. No. 9849 to be celebrated in the country:

(a) Regular Holidays

1 The phrase “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”has already been declared unconstitutional in Antonio M. Serrano v. Gallant Maritime Services, Inc., [G.R. No. 167614, March 24, 2009]. It is thus a source of wonder why Congress replicated the same phrase in this latest amendment to Section 10 of R.A. No. 8042 which was enacted on March 8, 2010. chanrobles&associates


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New Year's Day -January 1 Maundy Thursday - Movable Date Good Friday cralaw - Movable Date Eidul Fitr cralaw - Movable Date Eidul Adha - Movable Date Araw ng Kagitingan (Bataan and Corregidor Day)

- Monday nearest April 9

Labor Day cralaw - Monday nearest May 1 Independence Day - Monday nearest June 12 National Heroes Day - Last Monday of August Bonifacio Day - Monday nearest November 30 Christmas Day - December 25 Rizal Day - Monday nearest December 30

(b) Nationwide Special Holidays Ninoy Aquino Day - Monday nearest August 21All Saints Day - November 1 Last Day of the Year - December 31

The same rule on the reckoning of holidays enunciated in R.A. No. 9492 has been replicated in R.A. No. 9849. Thus, in the event the holiday falls on a Wednesday, the holiday will be observed on the Monday of the week. If the holiday falls on a Sunday, the holiday will be observed on the Monday that follows: Provided, That for movable holidays, the President shall issue a proclamation, at least six (6) months prior to the holiday concerned, on the specific date which shall be declared as a nonworking day. cralaw

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III. REPUBLIC ACT No. 9710

THE MAGNA CARTA OF WOMEN

1. Declaration of Policy.

Declaration of Policy. - Recognizing that the economic, political, and socio-cultural realities affect women's current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men. chanrobles&associates


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The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society.

The State affirms women's rights as human rights and shall intensify its efforts to fulfill its duties under international and domestic law to recognize, respect, protect, fulfill, and promote all human rights and fundamental freedoms of women, especially marginalized women, in the economic, social, political, cultural, and other fields without distinction or discrimination on account of class, age, sex, gender, language, ethnicity, religion, ideology, disability, education, and status. The State shall provide the necessary mechanisms to enforce women's rights and adopt and undertake all legal measures necessary to foster and promote the equal opportunity for women to participate in and contribute to the development of the political, economic, social, and cultural realms.

The State, in ensuring the full integration of women's concerns in the mainstream of development, shall provide ample opportunities to enhance and develop their skills, acquire productive employment and contribute to their families and communities to the fullest of their capabilities.

In pursuance of this policy, the State reaffirms the right of women in all sectors to participate in policy formulation. planning, organization, implementation, management, monitoring, and evaluation of all programs, projects, and services. It shall support policies, researches, technology, and training programs and other support services such as financing, production, and marketing to encourage active participation of women in national development. (Section 2 thereof). chanrobles&associates

2. Definitions of relevant terms.

(a) "Women Empowerment" refers to the provision, availability, and accessibility of opportunities, services, and observance of human rights which enable women to actively participate and contribute to the political, economic, social, and cultural development of the nation as well as those which shall provide them equal access to ownership, management, and control of production, and of material and informational resources and benefits in the family, community, and society.

(b) "Discrimination Against Women" refers to any gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.

It includes any act or omission, including by law; policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges.

A measure or practice of general application is discrimination against women if it fails to provide for mechanisms to offset or address sex or gender-based disadvantages or limitations of women, as a result of which women are denied or restricted in the recognition and protection of their rights and in their access to and


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enjoyment of opportunities, benefits, or privileges; or women, more than men, are shown to have suffered the greater adverse effects of those measures or practices.

Provided, finally, That discrimination compounded by or intersecting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion shall be considered discrimination against women under this Act.

(c) "Workers in the Formal Economy" refers to those who are employed by any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions, and instrumentalities, all government- owned and -controlled corporations and institutions, as well as nonprofit private institutions or organizations.

(d) "Workers in the Informal Economy" refers to self-employed, occasionally or personally hired, subcontracted, paid and unpaid family workers in household, incorporated and unincorporated enterprises, including home workers, micro-entrepreneurs and producers, and operators of sari-sari stores and all other categories who suffer from violation of workers' rights.

(e) "Migrant Workers" refers to Filipinos who are to be engaged, are engaged, or have been engaged in a remunerated activity in a State of which they are not legal residents, whether documented or undocumented.

3. Special Leave Benefits for Women.

A woman employee having rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. chanrobles&associates

4. Right to Decent Work.

The State shall progressively realize and ensure decent work standards for women that involve the creation of jobs of acceptable quality in conditions of freedom, equity, security, and human dignity.

(a) Decent work involves opportunities for work that are productive and fairly remunerative as family living wage, security in the workplace, and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns organize, participate in the decisions that affect their lives, and equality of opportunity and treatment for all women and men.

(b) The State shall further ensure:

(1) Support services and gears to protect them from occupational and health hazards taking into account women's maternal functions;

(2) Support services that will enable women to balance their family obligations and work responsibilities including, but not limited to, the establishment of day care centers and breast-feeding stations at the workplace, and providing maternity leave pursuant to the Labor Code and other pertinent laws;

(3) Membership in unions regardless of status of employment and place of employment; and chanrobles&associates

(4) Respect for the observance of indigenous peoples' cultural practices even in the workplace. cralaw


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(c) In recognition of the temporary nature of overseas work, the State shall exert all efforts to address the causes of out-migration by developing local employment and other economic opportunities for women and by introducing measures to curb violence and forced and involuntary displacement of local women. The State shall ensure the protection and promotion of the rights and welfare of migrant women regardless of their work status, and protect them against discrimination in wages, conditions of work, and employment opportunities in host countries.

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IV. REPUBLIC ACT NO. 9481

The following provisions of the Labor Code have been amended by R. A. No. 9481:

• Article 234 - Requirements of Registration

• Article 238 - Cancellation of Registration

• Article 239 - Grounds for Cancellation of Union Registration

• Article 245 - Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees chanrobles&associates

• Article 256 - Representation Issue in Organized Establishments

• Article 257 - Petitions in Unorganized Establishments

and INSERTED as new provisions thereof the following:

• Article 234-A – Chartering and Creation of a Local Chapter

• Article 238-A – Effect of a Petition for Cancellation of Registration

• Article 239-A – Voluntary Cancellation of Registration

• Article 242-A – Reportorial Requirements

• Article 245-A – Effect of Inclusion as Members of Employees Outside the Bargaining Unit

• Article 258-A – Employer as Bystander

TEXT OF THE AMENDATORY PROVISIONS OF R. A. NO. 9481:

ART. 234. Requirements of Registration. – A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: chanrobles&associates

(a) Fifty pesos (P50.00) registration fee;


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(b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;

(c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate;

(d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and

(e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it.

ART. 234-A. Chartering and Creation of a Local Chapter. - A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate.

The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon the submission of the following documents in addition to its charter certificate: chanrobles&associates

(a) The names of the chapter’s officers, their addresses, and the principal office of the chapter; and

(b) The chapter’s constitution and by-laws: Provided, That where the chapter’s constitution and by-laws are the same as that of the federation or the national union, this fact shall be indicated accordingly.

The additional supporting requirements shall be certified under oath by the secretary or treasurer of the chapter and attested by its president.

ART. 238. Cancellation of Registration. - The certificate of registration of any legitimate labor organization, whether national or local, may be cancelled by the Bureau, after due hearing, only on the grounds specified in Article 239 hereof. cralaw

ART. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election.

In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts.


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ART. 239. Grounds for Cancellation of Union Registration. - The following may constitute grounds for cancellation of union registration:

(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; chanrobles&associates

(b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters;

(c) Voluntary dissolution by the members.

ART. 239-A. Voluntary Cancellation of Registration. - The registration of a legitimate labor organization may be cancelled by the organization itself. Provided, That at least two-thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization: Provided, further, That an application to cancel registration is thereafter submitted by the board of the organization, attested to by the president thereof.

ART. 242-A. Reportorial Requirements. - The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned:

(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-lam or amendments thereto;

(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election;

(c) Its annual financial report within thirty (30) days after the close of every fiscal year; and

(d) Its list of members at least once a year or whenever required by the Bureau.

ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are NOT eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. THE RANK-AND-FILE UNION AND THE SUPERVISORS’ UNION OPERATING WITHIN THE SAME ESTABLISHMENT MAY JOIN THE SAME FEDERATION OR NATIONAL UNION. chanrobles&associates

ART. 245-A. EFFECT OF INCLUSION AS MEMBERS OF EMPLOYEES OUTSIDE THE BARGAINING UNIT. - THE INCLUSION AS


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UNION MEMBERS OF EMPLOYEES OUTSIDE THE BARGAINING UNIT SHALL NOT BE A GROUND FOR THE CANCELLATION OF THE REGISTRATION OF THE UNION. SAID EMPLOYEES ARE AUTOMATICALLY DEEMED REMOVED FROM THE LIST OF MEMBERSHIP OF SAID UNION.

ART. 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a RUN-OFF ELECTION shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. IN CASES WHERE THE PETITION WAS FILED BY A NATIONAL UNION OR FEDERATION, IT SHALL NOT BE REQUIRED TO DISCLOSE THE NAMES OF THE LOCAL CHAPTER’S OFFICERS AND MEMBERS. chanrobles&associates

At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed.

ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. IN CASES WHERE THE PETITION WAS FILED BY A NATIONAL UNION OR FEDERATION, IT SHALL NOT BE REQUIRED TO DISCLOSE THE NAMES OF THE LOCAL CHAPTER’S OFFICERS AND MEMBERS. cralaw

ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor


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organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to:

(1) being notified or informed of petitions of such nature; and

(2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition.

--------------------oOo----------------------

V. REPUBLIC ACT NO. 9422

AN ACT TO STRENGTHEN THE REGULATORY FUNCTIONS OF THE PHILIPPINE OVERSEAS EMPLOYMENT chanrobles&associates ADMINISTRATION (POEA)

Sec. 23, paragraph (b.1) of Republic Act. No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995 is hereby amended to read as follows:

(b.1) Philippine Overseas Employment Administration - The Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements.

In addition to its powers and functions, the Administration shall inform migrant workers not only of their rights as workers but also of their rights as human beings, instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights. chanrobles&associates

In the recruitment and placement of workers to service the requirements for trained and competent Filipino workers of foreign governments and their instrumentalities, and such other employers as public interests may require, the administration shall deploy only to countries where the Philippines has concluded bilateral labor agreements or arrangements: Provided, That such countries shall guarantee to protect the rights of Filipino migrant workers; and: Provided, further, That such countries shall observe and/or comply with the international laws and standards for migrant workers. cralaw

SEC. 29 OF THE SAME LAW IS HEREBY REPEALED.

The provision of Section 29 is as follows:

“Sec. 29. Comprehensive Deregulation Plan on Recruitment Activities. - Pursuant to a progressive policy of deregulation whereby the migration of workers becomes strictly a matter between the worker and his foreign employer, the DOLE, within one (1) year from the effectivity of this Act, is hereby mandated to formulate a five-year comprehensive deregulation plan on recruitment activities taking into account labor market trends, economic conditions of the country and emerging circumstances which may affect the welfare of migrant workers. cralaw” cralaw


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SEC. 30 OF THE SAME LAW IS ALSO HEREBY REPEALED.

The provision of Section 30 is as follows:

“Sec. 30. Gradual Phase-out of Regulatory Functions. - Within a period of five (5) years from the effectivity of this Act, the DOLE shall phase-out the regulatory functions of the POEA pursuant to the objectives of deregulation.”

--------------------oOo----------------------

VI. REPUBLIC ACT NO. 9347

AN ACT RATIONALIZING THE COMPOSITION AND FUNCTIONS OF THE NATIONAL LABOR RELATIONS COMMISSION, AMENDING FOR THIS PURPOSE ARTICLE 213, 214, 215 AND 216 OF P.D. NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES.

ART. 213. National Labor Relations Commission. - There shall be a National Labor Relations Commission which shall be attached to the Department of Labor and Employment SOLELY for program and policy coordination only, composed of a Chairman and TWENTY-THREE (23) Members.

Eight (8) members each shall be chosen ONLY from among the nominees of the workers and employers organizations, respectively. The Chairman and the SEVEN (7) remaining members shall come from the public sector, with the latter to be chosen PREFERABLY from among the INCUMBENT LABOR ARBITERS.

Upon assumption into office, the members nominated by the workers and employers organizations shall divest themselves of any affiliation with or interest in the federation or association to which they belong.

The Commission may sit en banc or in EIGHT (8) divisions, each composed of three (3) members. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations. The Commission shall exercise its adjudicatory and all other powers, functions, and duties through its divisions. Of the EIGHT (8) divisions, the first, second third, FOURTH, FIFTH AND SIXTH divisions shall handle cases coming from the National Capital Region and other parts of Luzon; and the SEVENTH, AND EIGHT divisions, cases from the Visayas and Mindanao, respectively: Provided, That the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expenses. The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction.

The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of a judgment or resolution. Whenever the required


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membership in a division is not complete and the concurrence of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary. cralaw

The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of the consultation ordained therein. A certification to this effect signed by the Presiding Commissioner of the division shall be issued, and a copy thereof attached to the record of the case and served upon the parties.

The Chairman shall be the Presiding Commissioner of the first division, and the SEVEN (7) other members from the public sector shall be the Presiding Commissioners of the second, third, fourth, fifth, sixth, seventh and eight divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman.

The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its regional branches and all its personnel, including the Labor Arbiters.

The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and SEVEN (7) other Deputy Executive Clerks for the second, third, fourth fifth, sixth, seventh and eight divisions, respectively, in the performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the Court of Appeals.

The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its Appellate and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are assigned. The Commission Attorneys shall be members of the Philippine Bar with at least one (1) year experience or exposure in the field of labor-management relations. They shall receive annual salaries and shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG 26). There shall be as many Commission Attorneys as may be necessary for the effective and efficient operations of the Commission but in no case more than three (3) assigned to the Office of the Chairman and each Commissioner.

No Labor Arbiter shall be assigned to perform the functions of the Commission Attorney nor detailed to the office of any Commissioner.

ART. 214. Headquarters, Branches and Provincial Extension Units. cralaw - The Commission and its first, second, third, fourth, fifth and sixth divisions shall have their main offices in Metropolitan Manila, and the seventh and eight divisions in the cities of Cebu and Cagayan de Oro, respectively. The Commission shall establish as many regional branches as there are regional offices of the Department of Labor and Employment, sub-regional branches or provincial extension units. There shall be as many Labor Arbiters as may be necessary for the effective and efficient operation of the Commission.

ART. 215. Appointment and Qualifications. - The Chairman and other Commissioners shall be members of the Philippine Bar and must have been


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engaged in the practice of law in the Philippines for at least fifteen (15) years, with at least five (5) years experience or exposure in the field of labor-management relations, and shall preferably be residents of the region where they SHALL hold office. The Labor Arbiters shall likewise be members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at least ten (10) years, with at least five (5) years experience or exposure in THE FIELD OF labor-management relations.

The Chairman, and the other Commissioners and the Labor Arbiters shall hold office during good behavior until they reach the age of sixty-five (65) years, unless sooner removed for cause as provided by law or become incapacitated to discharge the duties of their office. Provided, however, That the President of the Republic of the Philippines may extent the services of the Commissioners and Labor Arbiters up to the maximum age of seventy (70) years upon the recommendation of the Commission en banc. chanrobles&associates

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President. Appointment to any vacancy in a specific division shall come only from the nominees of the sector which nominated the predecessor. The Labor Arbiters shall also be appointed by the President, upon recommendation of the Commission en banc to a specific arbitration branch, preferably in the region where they are residents, and shall be subject to the Civil Service Law, rules and regulations: Provided, that the labor arbiters who are presently holding office in the region where they are residents shall be deemed appointed thereat. cralaw

The Chairman and the Commission shall appoint the staff and employees of the Commission and its regional branches as the needs of the service may require, subject to the Civil Service Law, rules and regulations, and upgrade their current salaries, benefits and other emoluments in accordance with law.

ART. cralaw 216. Salaries, benefits and other emoluments. - The Chairman and members of the Commission shall have the same rank, receive an annual salary equivalent to, and be entitled to the same allowances, retirement and benefits as, those of the Presiding Justice and Associate Justices of the Court of Appeals, respectively. Labor Arbiters shall have the same rank, receive an annual salary equivalent to and be entitled to the same allowances, retirement and other benefits and privileges as those of the judges of the regional trial courts. In no case, however, shall the provision of this Article result in the diminution of the existing salaries, allowances and benefits of the aforementioned officials.

Sec. 5. cralaw Implementation. - The creation of the additional divisions shall be implemented for a period of not more than three (3) years.

-END OF PART ONE-


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