Notes Labor Standards

7/28/2019 Notes Labor Standards

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CA AZUCENA NOTES ON LABOR STANDARDS

Abigail Bautista Anzia

Labor legislation statues, regulations & jurisprudence governing relations bet capital

& labor, by providing for certain standards of terms & conditions of EENT or

providing a legal framework w/in w/c these terms & conditions & the EENT

relationship may be negotiated, adjusted & administered.

2 Divisions of Labor Legislation

1. Labor Standards sets out the minimum terms, conditions & benefits of EENT

that EERS must provide or comply w/ & to w/c EES are entitled as a matter of legal

right.

- minimum requirements prescribed by existing laws, rules & regulations relating to

wages, hrs of work, cost-of-living allowance and other monetary & welfare benefits,

including occupational safety & health standards.

- material or substance to be processed

2. Labor Relations defines the status, rights & duties and the institutional

mechanisms, that govern the indiv & collective interactions of EERS, EES, or their

representatives.

- mechanism that processes the substance

Labor physical toil although it does not necessarily exclude the application of skill

(thus skilled &unskilled labor)

Skill the familiar knowledge of any art/science, united w/ readiness & dexterity inexecution/performance or in the application of the art/science to practical purposes.

Work (broader than labor) covers all forms of physical/mental exertion, or both

combined, for the attainment of some obj other than recreation/amusement per se.

Worker (broader than EE) may refer to self-employed people & those working in

the service & under the control of another, regardless of rank, title, or nature ofwork.

- any member of the labor force whether employed/unemployed


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Employee a salaried person working for another who controls or supervises the

means, manner or method of doing the work.

Social legislation includes laws that provide particular kinds of protection/benefitsto society in furtherance of social justice.

are necessarily social legislation

Social justice humanization of laws & the equalization of social & economic forces

by the State so that social justice in its rational & objectively secular conception may

at least be approximated

- promotion of the welfare of the ppl, the adoption by the Govt of measures

calculated to insure economic stability of all the component elements of society

through the maintenance of proper economic & social equilibrium in the interrelations

of the members of the community, constitutionally, through the adoption of measures

legally justifiable, or extra-constitutionally, through the exercise of powers underlying

the existence of all govts.

1987 Consti: protects the rights of workers & promote their welfare

Basic rights of workers guaranteed by the Constitution

1. to organize themselves

2. to conduct collective bargaining/negotiation w/ mgt;

3. to engage in peaceful concerted activities, including to strike in accordance w/ law;

4. to participate in policy & decision-making processes affecting rights & benefits

Other Consti provisions that protect the Rs/promote the welfare of workers

-org even for govt EES.. No officer/Ee of the Civil Service shall be

removed/suspended xcpt for a cause. Temporary EES of the Govt shall be given such

protection as may be provided by law

Landless farmworkers may be resettled by the govt in its own agri estates.

of opportunities, income & wealth.


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justice & economic devt

ed to separation pay & retirement benefits,OR may be considered for reemployment in the govt

Consti pro-labor, but recognizes the indispensable role of the private sector,

encourages private enterprise and provides incentives to needed investments

Police Power as the Basis

- the power of the govt to enact laws, w/in Constitutional limits to promote the

order, safety, health, morals & general welfare of society

- power inherent in govt to protect itself & all its constituents, & for this purpose to

hold the govt immune so far as necessary, from any limitations imposed in the past.

- An imposition of restraint upon liberty or property in order to foster the common

good.

Labor Code designed to be a dynamic & growing body of laws w/c will reflect

continually the lessons of practical application & experience

7 Principles Underlying the code

1. Labor relations must be made both responsive & responsible to national devt

2. Labor laws/labor relations during a period of national emergency must substitute

arbitration

3. Laggard justice in the labor field is injurious to the workers, the EERS & the public;labor justice can be made expeditious w/o sacrificing due process.

4. Manpower devt & EENT must be regarded as a major dimension of labor policy,

for there can be no real equality of bargaining power under conditions of severe mass

unemployment.

5. There is a global labor market available to qualified Filipinos, esp those who are

unemployed or whose EENT is tantamount to unemployment bcoz of their very little

earnings.6. Labor laws must command adequate resources & acquire a capable machinery for

effective & sustained implementation; when labor laws cannot be enforced, both EERS


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& the workers are penalized, & only a corrupt few (those who are in charge of

implementation) may get the reward they dont deserve.

7. There shld be popular participation in national policy-making through what is now

called tripartism.

Art 3. [Declaration of Basic Policies] The State shall afford protection to labor,

promote full EENT, ensure equal work opportunities regardless of sex, race or creed,

and regulate the relations bet workers & EERS. The State shall assure the rights of

workers to self-org, collective bargaining, security of tenure, and just & humane

conditions of work.

Balanced Approach shared responsibility. Worker & EER sectors are interdependent.

Basic policy is to balance or to coordinate the rights and interests of both workers

and employers because both sectors need each other; they are interdependent

Art4. [Construction in Favor of Labor] All doubts in the implementation &

interpretation of the provisions of this Code, including its IRRs, shall be resolved in

favor of labor.

Interpretation & Construction policy is to extend the decrees applicability to a

greater number of EES to enable them to avail of the benefits under the law (Liberal

approach is adopted)

Concern for the Lowly Worker SC reaffirms its concern for the lowly worker who,

often at his EERs mercy, must look up to the law for his protection. (Reason: the EER

stands on higher footing than the EE: (1,) There is greater supply than demand for

labor; (2) the need for EENT by labor comes from vital & even desperate necessity.)

Mgt Rights entitled to respect & enforcement in the interest of simple fair play.

1. R to manage, control, and use his property & conduct business in a manner

satisfactory to himself (just discrimination in the rate of wages paid to the skillful &

to the unskillful, to the efficient & inefficient.)

2. R to prescribe rules (they become part of the contract of EENT)

3. R to select EES & to decide when to engage them, except as restricted by statute

or valid contract, at a wage & under conditions agreeable to them.


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4. R to transfer & discharge EES in order to minimize expenses & to insure stability

of the business & even to close the business, provided it is done in good faith & due to

causes beyond control.

Mgt Prerogative: Rights of the employer to return of investments and to make profit

The employer is allowed to control the variables in business operations, to enhance

the

chances of making a profit. The Supreme Court have held in various cases that

management is free to regulate, according to its own discretion and judgment, all

aspects of employment, including hiring, work assignments, working methods, time,

place and manner of work, processes to be followed, supervision of workers, working

regulations, transfer of employees, work supervision, layoff of workers and discipline,

dismissal and recall of workers. Management prerogative is justified, provided that

the following are exercised:

a. In good faith

b. For the advancement of the employers interest

c. Not to circumvent the rights of the employees

Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the

administration & enforcement of this Code or any of its parts shall promulgate the

necessary IRRs. Such RRs shall become effective 15 days after announcement of their

adoption in the newspapers of gen. circulation.

-administrative regulations and policies enacted by administrative bodies have the

force of law and are entitled to great respect

Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall,except as may otherwise be provided herein, apply alike to all workers, whether

agricultural or non-agricultural.

- also applies to a govt corp incorporated under the Corporation Code.

- Test: WON a govt-owned/-controlled corp is subj to CS Law is the manner of its

creation. Govt corps created by special charter are subj to its provisions, while those

incorporated under the gen Corp Law are not w/in the coverage of the CS law.

-EDC

Ees covered by CS Law


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*Land for the landless battlecry dramatizing the increasingly urgent demand of the

dispossessed for a plot of earth as their place under the sun.

*CARP Law signed by Cory, declaring full land ownership in favor of the

beneficiaries of the PD 27.*Share tenancy abolished, put the agricultural leasehold sys in its stead, geared

towards eventual ownership of land by its tillers

*Consti - State shall undertake an Agrarian Reform Program, and encourage &

undertake the just distribution of all agri lands, subj to such priorities & reasonable

retention limits as the Congress may prescribe,

*Compensation scheme: Sec 18 of CARP: Title to all expropriated properties shall be

transferred to the State only upon full payment of compensation of their respective

owners.

*Retention Limits

may own/retain directly/indirectly, any public/private agri land, the size of w/c shall

vary accdg to factors governing a viable family-sized farm, such as commodity

produced, terrain, infrastructure, & soil fertility as determined by the Presidential

Agrarian Reform Council (PARC).

*3 hectares may be awarded to each child of the landowner, subj to the ff

qualifications: (1.) he is at least 15 y/o, and (2) he is actually tilling the land or

directly managing the farm; Provided, that landowners whose lands have been

covered b PD 27 shall be allowed to keep the area originally retained by them

thereunder; Provided further, that orig homestead grantees or direct

compulsory heirs who still own the org homestead at the time of the approval of this

Act shall retain the same areas as long as the continue to cultivate said homestead.

Lands not covered:

1. Lands obtained through homestead patent:Homestead Act gives a needy citizen a piece of land where he may build a modest

house for himself & family & plant what is necessary for subsistence & for the

satisfaction of lifes other needs.

- superior over the rights of tenants

2. Residential Subdivisions not considered agricultural. An agricultural leasehold

cannot be established on land w/c has ceased to be devoted to cultivation or farming

bcoz of its conversion into a residential subd.3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes private

agri lands devoted to commercial livestock, poultry & swine raising in the definition


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of commercial farms is invalid. They are covered by the agrarian reform prog of the

State.

PRE-EMPLOYMENTArt 12. It is the policy of the State:

1. to promote and maintain a state of full employment through improved manpower

training, allocation and utilization;

2. to protect every citizen desiring to work locally/overseas by securing for him the

best possible terms and condition of employment;

3. to facilitate a free choice of available employment by persons seeking work in

conformity with the national interest;

4. to facilitate & regulate the movement of workers in conformity w/ the national

interest;

5. to regulate the employment of aliens, including the establishment of a registration

and/or work permit system;

6. to strengthen the network of public employment offices and rationalize the

participation of the private sector in the recruitment and placement of workers,

locally and overseas, to serve national development objectives;

7. to insure careful selection of Filipino workers for overseas employment in order to

protect the good name of the PH abroad.

The DOLE

- by Administrative Code of 1987 (EO 292)

- the primary policy-making, programming, coordinating and administrative entity

of the Executive branch of the govt in the field of labor and employment

Its Primary responsibilities:1. The promotion of gainful EENT opportunities and the optimization of the devt &

utilization of the countrys manpower resources;

2. The advancement of workers welfare by providing for just and humane working

conditions and terms of EENT;

3. The maintenance of industrial peace by promoting harmonious, equitable and

stable EENT, relations that assure protection for the Rs of all concerned parties.

RECRUITMENT & PLACEMENT OF WORKERS

Art 13. Definitions


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Worker any member of the labor force whether employed or unemployed.

Recruitment & placement any act of canvassing, enlisting, contracting,

transporting, utilizing, hiring, or procuring workers and includes referrals, contract

services, promising or advertising for EENT, locally or abroad, whether for profit ornot: provided, that any person or entity w/c, in any manner, offers or promises for a

fee EENT to 2/more persons shall be deemed engaged in recruitment & placement

Private fee-charging EEnt Agency any person/ entity engaged in the recruitment &

placement of workers for a fee w/c is charged directly/indirectly from the workers or

employers or both

License a document issued by the DOLE authorizing a person/entity to operate a

private EENT agency

Private recruitment entity any person/assoc engaged in the recruitment &

placement of workers, locally/overseas without charging, directly/indirectly any fee

from the workers or employers.

Authority a document issued by the DOLE authorizing a person/assoc to engage in

recruitment & placement activities as a private recruitment entity

Seaman any person employed in a vessel engaged in maritime navigation

Overseas EENT EENT of a worker outside the PH

Emigrant any person, worker or otherwise, who emigrates to a foreign country by

virtue of an immigrant visa or resident permit to its equivalent in the country of

destination

Art 14. EMPLOYMENT PROMOTION

The Sec of Labor shall have the power & authority:

1. to organize & establish new EENT offices in addition to existing EENT offices under

the DOLE as the need arises;

2. to organize & establish a nationwide job clearance & information system to informapplicants registering w/ a particular EENT office of job opportunities in other parts

of the country as well as job opportunities abroad;

3. to develop & organize a program that will facilitate occupational industrial and

geographical mobility of labor and provide assistance in the relocation of workers from

one area to another; and

4. to require any person, establishment, org, or institution to submit such EENT

information as may be prescribed by the Sec of Labor.

Art 15. BUREAU OF EMPLOYMENT SERVICES (now BLE)


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- primarily responsible for developing & monitoring a comprehensive EENT program.

Powers & Duties:

1. To formulate & develop plans & programs to implement the EENT promotion

objectives of this Title;2. To establish & maintain a registration and/or licensing system to regulate private

sector participation in the recruitment & placement of workers, locally & overseas,

and to secure the best possible terms & conditions of EENT for Filipino contract

workers and compliance therewith under such rules & regulations as may be issued by

the DOLE;

3. To formulate & develop EENT programs designed to benefit disadvantaged groups

& communities;

4. To establish & maintain a registration and/or work permit system to regulate the

EENT of aliens;

5. To develop a labor market information system in aid of proper manpower and

development planning;

6. To develop a responsible vocational guidance & testing system in aid of proper

human resources allocation; and

7. To maintain a central registry of skills, except seamen

*PESO - serves as EENT service & information center

- Regularly obtains lists of job vacancies from EERS, publicizes them, invites and

evaluates applicants, and refers them for probable hiring

- Provides training and educational guidance and EENT counseling services

- Also renders special services to the public such as holding of jobfairs, livelihood and

self-employment bazaars

- Special credit assistance for placed overseas workers

- Special program for EENT of students (SPES) during summer or semestral breaks- Work appreciation seminars & conferences and

- Hiring of workers in infrastructure projects (WHIP)

created WHIP, a program w/c requires the DPWH and private

contractors to hire 30% of skilled and 50% unskilled labor requirements from the area

where the project is being undertaken

Art 16. PRIVATE RECRUITMENT:GR: No person/entity other than the public EENT offices, shall engage in the

recruitment & placement of workers.


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Exceptions

1. Public EEnt offices

2. Private recruitment entities

3. Private EENT agencies4. Shipping or manning agents or representatives

5. The POEA

6. Construction contractors if authorized to operate by DOLE and the Construction

Industry Authority

7. Members of the diplomatic corps although hirings done by them have to be

processed through the POEA

8. Other persons/entities as may be authorized by the Sec of DOLE

Art 17. PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)

*POEA has taken over the functions of the Overseas Employment Development

Board (OEDB) and the National Seamen Board (NSB)

OFW a Filipino worker who is to be engaged, is engaged or has been engaged in a

renumenerated activity in a country of which he/she is not a legal resident whether:

1. Land-based contract workers other than a seaman including workers Engaged in

offshore activities whose occupation requires that majority of his working/gainful hrs

are spent on land

2. Sea-based those employed in a vessel engaged in maritime navigation

Principal Functions of the POEA

1. Formulation, implementation and monitoring of overseas employment of Filipino

workers;2. Protection of their rights to fair and equitable employment practices;

3. Deployment of Filipino workers through govt-to-govt hiring

Regulatory Functions

1. Regulate private sector participation in the recruitment & overseas placement of

workers through its licensing and registration system;

2. Formulate & implement, in coordination w/ appropriate entities concerned, whennecessary, a system for promoting and monitoring the overseas EEnt of Filipino


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workers taking into consideration their welfare and the domestic manpower

requirements;

3. Inform migrant workers not only of their rights as workers but also of their rights

as human beings;4. Instruct and guide the workers how to assert their rights and provide the available

mechanism to redress violation of their rights;

5. In the recruitment & placement of workers to service the requirements for trained

and competent Filipino workers of foreign govts and their instrumentalities, and such

other employers as public interest may require, deploy only to countries:

a. Where the PH has concluded Bilateral labor agreements or arrangements;

b. Observing and/or complying w/ the international laws and standards of migrant

workers;

c. Guaranteeing to protect the rights of Filipino migrant workers.

Adjudicatory Functions

1. Administrative cases involving violations of licensing rules & regulations and

registration of recruitment and EEnt agencies/entities; and

2. Disciplinary action cases and other special cases w/c are administrative in

character, involving employers, principals, contracting partners and Filipino migrant

workers.

Jurisdiction of POEA

1. all cases w/c are administrative in character, involving or arising out of violations

of rules & regulations relating to licensing & registration of recruitment and

employment agencies/entities; and

2. disciplinary action cases and other special cases w/c are administrative incharacter, involving EERS, principals, contracting partners and Filipino migrant

workers

3. NO jurisdiction to enforce foreign judgment (must be brought before the regular

courts). POEA is an administrative (not a court), exercising adjudicatory or quasi-

judicial functions

4. NO jurisdiction over torts

*Jurisdiction over EER-EE cases were transferred to NLRC by virtue of RA 10022(Migrant Workers Act as amended)


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Grounds for Disciplinary Action

1. Commission of a felony punishable by Ph laws or by the laws of the host country;

2. Drug addiction/possession or trafficking of prohibited drugs;

3. Desertion or abandonment;4. Drunkenness, esp where the laws of the host country prohibit intoxicating drinks;

5. Gambling, esp where the laws of the host country prohibits the same;

6. Initiating/joining a strike or work stoppage where thelaws of the host country

prohibit strikes or similar actions;

7. Creating trouble at the worksite or in the vessel;

8. Embezzlement of company funds or of moneys and properties of a fellow worker

entrusted for delivery to kins or relatives in the PH;

9. Theft/robbery;

10. Prostitution;

11. Vandalism or destroying company property;

12. Gunrunning or possession of deadly weapons;

13. Unjust refusal to depart for the worksite after all employment and travel

documents have been duly approved by the approp govt agency/ies; and

14. Violation/s of the laws and sacred practices of the host country and unjustified

breach of govt-approved EENT contract by a worker

COMPROMISE AGREEMENT

-consistent w/ the policy encouraging amicable settlement of labor disputes Sec 10 of

RA 8042 allows resolution by compromise of cases filed w/ the NLRC

- any compromise agreement on money claims inclusive of damages shall be paid

w/in 4 months from the approval of the settlement

Penalties for Non-compliance of the mandatory period for resolution of cases

1. The salary of such official who fails to render his decision/resolution w/in the

prescribed pd shall be, or caused to be, withheld until such official complies therewith;

2. Suspension for not more than 90 days; or

3. Dismissal w/ disqualification to hold any appointive public office for 5 yrs

EER/EE Relations Casesa. Millares & Lagda v NLRC: SC: seafarers are contractual EES

b. Premature Termination of Contract


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If EE is terminated before end of contract w/o just cause, EERS will be ordered to

pay their salaries corresponding to the unexpired portion of their EENT contract

c. Pretermination Under RA 8042

A worker dismissed from overseas EENT w/o just cause as defined by law/contract isentitled to full reimbursement of his placement fee w/ interest at 12% per annum,

plus the salary for the unexpired portion of their EENT contract. (Serrano vs Gallant)

-the clause whichever is less is declared unconstitutional by RA 8042 as it violates

equal protection of the law and substantive due process

Due Process required to terminate employment

Ex: in case of seamen must be given written notice of the charges against him, and

afforded a formal investigation where he can defend himself or thru a representative

before he can be dismissed & disembarked. The EER is required to furnish him w/ 2

notices: (1) written notice of charge; and (2) written notice of dismissal

Contracted but not Deployed: Perfected Contract

-agreement on the object and the cause, as well as the terms and conditions of the

contract

Death benefits of Seafarers

- entitled to death and other benefits under w/c ever is higher (foreign law or Ph

law)

- entitled to death benefits if death occurs during the term of his contract of

employment, even if death is not work- eir own doing

*Disability loss or impairment of a physical or mental function resulting from

injury/sickness*Permanent disability the inability of a worker to perform his job for more than

120 days, regardless of WON he loses the use of any part of his body

*Total Disability disablement of an EE to earn wages in the same kind of work of

similar nature that he was trained for or accustomed to perform, or any kind of

work w/c a person of his mentality and attainments could do. It does not mean

absolute helplessness.

In disability compensation, it is not the injury w/c is compensated, but rather it isthe incapacity to work resulting in the impairment of ones earning capacity


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*Disability benefits by seamen a matter governed not only by medical findings but

by law & contract

- shall be paid beginning on the 1st day of such disability. If caused by an

injury/sickness still requires medical attendance beyond 120 days

but not to exceed 240 days from onset of disability in w/c case benefit for temporary

total disability shall be paid.

In case of differing medical assessment

a.) when a seafarer sustains a work-related illness/injury while on board, his

fitness/unfitness to work shall be determined by the company-designated physician.

b.) If the physician appointed by the seafarer disagrees w/ the company-designated

physicians assessment, the opinion of a 3rd doctor may be agreed jointly bet the EER

and the seafarer to be the decision final and binding on them

Agencies Given the Duty to promote the welfare & rights of migrant workers:

1. DFA

2. DOLE

3. POEA

4. OWWA Overseas Workers Welfare Administration provides social & welfare

services including insurance coverage, legal assistance, placement assistance and

remittance services to Filipino overseas workers. Under RA8042, it shall provide the

Filipino migrant worker & his faily assistance in the enforcement of contractual obligs

by agencies, entities and/or their principals;

5. RPM - Re-Placement and Monitoring Center develops livelihood programs for

the returning workers to reintegrate the returning migrant workers to the Ph

society;

6. NLRC tasked w/ the settlement/adjudication of labor disputes

Art 18: BAN ON DIRECT HIRING

GR: Direct hiring of Filipino workers for overseas EENT is not allowed

1. Members of Diplomatic corps;

2. International organizations;

3. Other employers as may be allowed by DOLE; and


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4. Name hires individual workers who are able to secure contracts for overseas

EENT on their own efforts and representations w/o assistance/participation of any

agency. Their hiring nonetheless, shall pass through the POEA for processing purposes

Rationale of the Prohibition:

1. To assure the best possible terms & conditions of work to the EE; and

2. To assure the foreign EER that he hires only qualified Filipino workers

Art 19: COMMISSION ON FILIPINO OVERSEAS (BP 79)

CFO attached to the DFA; replaced the Office of Emigrant Affairs.

- assists in the formulation of policies affecting Filipinos overseas and formulates an

integrated program that promotes the welfare of Filipinos overseas

ART 20: NSB now POEA

Art 21. FOREIGN SERVICE ROLE AND PARTICIPATION

- necessary to monitor the status of OFWs in their respective areas of assignment and

insure that they are not exploited or abused by their foreign principal EERS

Art 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

- All OFWs are required to remit a portion of their foreign exchange earnings ranging

from 50% - 80% depending on the workers kind of job, to their families, dependents,

and/or beneficiaries.

Seamen/Mariners 80%

Workers for Filipino Contractors & Construction companies 70%

Professionals whose EENT contract provide for lodging facilities 70%Professionals w/o Board & Lodging 50%

Domestic and other service workers 50%

1. Fil servicemen working in US military installations;

2. Where the workers immediate family members, dependents, or beneficiaries are

residing w/ him abroad;

3. Immigrants and Fil professionals and EEs working w/ UN agencies or specializedbodies


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Effects of Failure to Remit

1. Workers who fail to comply w/ the mandatory remittance reqment shall be

suspended/excluded from the list of eligible workers for overseas EENT. Subsequent

violations shall warrant his repatriation.2. EERS who fail to comply shall be excluded from the overseas EENT program.

Private EENT agencies/entities shall face cancellation or revocation of their licenses or

authority to recruit, w/o prejudice to other liabilities under existing laws and

regulations

ART 23-24: POEA COMPOSITION OF BOARDS TO ISSUE RULES AND COLLECT

FEES

CH 2: REGULATION OF RECRUITMENT & PLACEMENT ACTIVITIES

Art 25: PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT & PLACEMENT

OF WORKERS

Private Sectors that can participate

1. Private EENT agencies;

2. Private recruitment agencies;

3. Shipping or manning agencies;

4. Such other persons as may be authorized by the Sec of DOLE; and

5. Construction contractors w/ a duly issued authority to operate private recruitment

entities

Qualifications for Participation

1. Citizenship requirement

a. Filipino citizens; orb. Corporations, partnerships or entities at least 75% of the authorized and voting

capital stock of w/c is owned & controlled by Filipino citizens.

2. Capitalization

a. Private EENT agency for local EENT

i. For single proprietorship or partnership minimum net worth of 200k

pesos

ii. For corporations a minimum paid up capital of 5ook pesosb. Private recruitment or manning agency for overseas EENT

i. For single proprietorship or partnership P2M minimum capital


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ii. For corps P2M minimum paid up capital, Provided, that those w/

existing licenses shall, w/in 4 yrs from effectivity hereof, increase their

capitalization or paid-up capital, as the case may be, to P2M at the rate of

250K every yr.3. Those not otherwise disqualified by law or other govt regulations to engage in the

recruitment & placement of workers for overseas EENT

Disqualified from Recruitment & Placement of Workers for Overseas EEnt whether for

profit or not

1. Travel agencies & sales agencies of airline companies;

2. Officers/members of the board of any corp or members in a partnership engaged

in the business of a travel agency;

3. Corps & partnerships, when any of its officers, members of the board or partners,

is also an officer, member of the board or partner of a corp or partnership engaged

in the business of a travel agency (interlocking officers)

4. Persons, partnerships or corps which have derogatory records, such as but not

limited to:

a. Those certified to have derogatory record/info by the NBI or by the Anti-illegal

Recruitment Branch of the POEA;

b. Those against whom probable cause or prima facie finding of guilt for illegal

recruitment or other related cases exists;

c. Those convicted of cases and/or crimes involving moral turpitude;

d. Those agencies whose licenses have been previously cancelled or revoked by POEA

for violation of RA 8042, PD 442 as amended and their IRR as well as the Labor

Codes IRR

e. Officials/EES of the DOLE or other govt agencies directly involved in overseas EENTprogram and their relatives w/in the 4th degree of consanguinity or affinity; and

f. Those whose License have been previously cancelled o revoked

Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY

1. It may be used only to the one in whose favor it was issued; hence, it cannot be

assigned, conveyed or transferred to any other person/entity.

2. It must be used only in the place stated in the license. Thus, could only undertakerecruitment & placement activities in the region where the license was granted.


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3. The recruitment & placement activities must be undertaken at their authorized

official addresses.

4. Provincial recruitment and/or job fairs may be allowed only when authorized by

POEA in writing.* Change of ownership of single proprietorship licensed to engage in overseas EENT

shall cause the automatic revocation of the license.

Art 30: REGISTRATION FEES: The Sec of Labor shall promulgate a schedule of fees for

the registration of all applicants for license or authority.

Art 31. BONDS

All applicants for license/authority shall post such cash and surety bonds as

determined by the Sec of Labor including escrow deposits.

Purposes:

1. To guarantee compliance w/ prescribed recruitment procedures, rules &

regulations, and terms & conditions of EENT; and

2. To ensure prompt & effective recourse against such companies when held liable for

applicants/workers claim

Exemption from Garnishment

judgment creditor of the agency.

should be replenished by the agency w/in 15 days from notice

from the POEA. Failure to replenish the same w/in the said pd shall cause the

suspension of the licenseNote: POEA has the power to enforce liability under cash & surety bonds.

Art 32: FEES TO BE PAID BY WORKERS

actually commenced EENT

approp receipt clearly showing the amount

paid.

POEA has the power to:


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1. Suspend/cancel the license; and

2. Order the refund/reimbursement of such illegally collected fees

Prohibition on Charging Fees1. Placement fees cannot be collected from a hired worker until he has signed the

EENT contract & shall be covered by receipts clearly showing the amt paid

2. Manning agencies shall not charge any fee from seafarer-applicants for its

recruitment & placement services. All expenses for hiring seamen shall be shouldered

by foreign shipping principals.

3. No other fees/charges, including processing fees shall be imposed against any

worker.

ART 33: REPORTS ON EMPLOYMENT STATUS

-DOLE secretary may direct all persons or entities to report on the status of

employment including job vacancies, details of job requisitions, separation form jobs,

wages, other terms and conditions and employment data

Art 34 & Section 5 RA 10022 (amended RA 8042) PROHIBITED PRACTICES:

It shall be unlawful for any indiv, entity, 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;

(c) To give any false notice, testimony, information or document or commit any actof 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 non-

existent work, work different from the actual overseas work, or work with a different

employer whether registered or not with the POEA;

(d) To include 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 aworker from oppressive terms and conditions of employment;


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(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;

(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. Illegalrecruitment 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.

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

*Non License or Non-Holder of Authority any person/corp/entity w/c has not beenissued a valid license or authority to engage in recruitment & placement by the Sec of


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Labor, or whose license or authority has been suspended, revoked or cancelled by the

POEA and the Secretary.

Grounds for Revocation of License1. Incurring an accumulated 3 counts of suspension by an agency based on final and

executor orders w/in the validity period of its license;

2. Violation/s of the conditions of license;

3. Engaging in acts of misrepresentation for the purpose of securing a license or

renewal thereof; and

4. Engaging in the recruitment or placement of workers to jobs harmful to the public

health or morality or to the dignity of the RP

Grounds for Suspension/Cancellation of License

1. The acts prohibited under Art 34;

2. Charging a fee before the worker is employed or in excess of the authorized amt;

3. Doing recruitment in places outside its authorized area;

4. Deploying workers w/o processing through the POEA; and

5. Publishing job announcements w/o POEAs prior approval

Jurisdiction

The DOLE Sec and the POEA Admin have concurrent jurisdiction to suspend or cancel

a license

Liability of Recruitment Agency

Before recruiting, the agency is required to submit a doc containing its power to sueand be sued jointly and solidarily w/ the principal or foreign-based employer for any

of the violations of the recruitment agreement, and the contracts of employment

*Note: The recruitment agency may still be sued even if agency agreement bet

recruitment agency & principal is already severed if no notice of the termination was

given to the EE

Exception to Liability of Recruitment agency

their foreign EER despite their knowledge of its inability to pay their wages


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Contract by Prncipal

the EE, the manning agent in the PH is jointly & solidarily liable w/ the principal

Suability of Foreign Corpsn corp that, thru unlicensed agents, recruits workers in the country may be

suid in and found liable by Ph courts

CH 3: MISCELLANEOUS PROVISIONS (as amended by RA 10022)

ART 36-37: REGULATORY AND VISITORIAL POWERS OF THE DOLE SECRETARY

ART 38-39: ILLEGAL RECRUITMENT and PENALTIES (as amended by RA 10022)

Illegal Recruitment any act of (CETCHUP) canvassing, enlisting, transporting,

contracting, hiring, utilizing, or procuring workers and includes (CRAP) contract

services, referrals, or advertising, promising for employment abroad, whether for

profit or not, when undertaken by a non-licensee or non-holder of authority;

Provided that any such non-licensee or non-holder of authority who in any manner,

offers or promises for a fee employment abroad to 2 or more persons shall be deemed

so engaged.

by a non-licensee or non-holder of authority or a licensee or a holder of authority:

1. Those prohibited practices under Art 34;

2. Failure to actually deploy w/o valid reason as determined by DOLE;

3. Failure to reimburse expenses incurred by the worker in connection w/ his

documentation & processing for purposes of deployment, in cases where the

deployment does not actually take place w/o the workers fault; and

4. Recruitment & placement activities of agents or representatives appointed by a

licensee, whose appointments were not previously authorized by the POEA shalllikewise constitute illegal recruitment.

Elements of Illegal Recruitment

1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged

in the recruitment & placement of workers; and

2. The offender undertakes either any recruitment activities devided under Art 13 (b)

or any prohibited practices in Art 34

Simple Illegal Recruitment Where a person:


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1. undertakes any recruitment activity defined under Art 13(b) or any prohibited

practice enumerated under Arts 34 & 38 of the LC; and

2. does not have a license or authority to lawfully engage in the recruitment &

placement of any workers.

Illegal Recruitment in Large Scale further requires a 3rd element:

3. The offense is committed against 3/more persons, individually or as a group

Illegal Recruitment as Economic Sabotage:

1. When illegal recruitment is committed by a syndicate (when 3/more persons

conspire or confederate w/ one another in carrying out an unlawful or illegal

transaction, enterprise or scheme);

2. When illegal recruitment is committed in a large scale (if committed against

3/more persons individually or as a group

Consequences of Conviction

1. Automatic revocation of license/authority;

2. Forfeiture of the cash & surety bonds;

3. Conviction for the crime of estafa, if found guilty thereof

Illegal Recruitment vs Estafa

egal recruitment is malum prohibitum,

Acts Constituting Estafa

- the accused represented themselves to complainants to have the capacity to sendworkers abroad although they did not have any authority or license, enabling them to

obtain placement fee

Venue of criminal action arising from Illegal Recruitment

The complainant may, at his option file at the RTC of the province/city:

a.) where the offense was committed; or

b.) where the offended party resides at the time of the commission of the offense

Penalties


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(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 Twomillion 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.

(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."

Absence of receipts evidencing payment, notfatal to prosecutions case for illegal

recruitment as long as the witnesses can positively show through their respective

testimonies that the accused is the one involved in prohibited recruitment

Liability of Local EEnt agency solidarily liable w/ the foreigh principal for unpaid

salaries of a worker recruited. Before recruiting, the agency is required to submit a

doc containing its power to sue and be sued jointly and solidarily w/ the principal or

foreign-based EER for any of the violations of the recruitment agreement and the

contracts of EEnt


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Liability of Company Engaged in Illegal Recruitment may be held as principal,

together his EER, if it is shown that he actively & consciously participated in illegal

recruitment

Issuance of search warrant/warrant of arrest

search or arrest warrants however, since it has been considered administrative and

regulatory in nature, it may still do so

1. By virtue of a judicial warrant issued by the RTC, MTC judge (Sec 2 Article 3of the 1987 Constitution)

2. Without judicial warrant by virtue of Sec 5 Rule 113 of the Rules of CriminalProcedure (warrantless arrest)

exception is in cases of deportation whom the President or the Commissioner of

Immigration may order arrested, following a final order of deportation

TITLE 2: EMPLOYMENT OF NON-RESIDENT ALIENS

*Alien Employment Permit (AEP) required for entry into the country for

employment purposes and is issued after determination of the non-availability of a

person in the pH who is competent, able and willing at the time of application to

perform the services for w/c the alien is desired

AEP

Employment Permit Required

1. all foreign nationals seeking admission to the PH for the purpose of EENT;

2. all non-resident foreign nationals already working in the PH;3. non-resident foreign nationals admitted to the PH on non-working visas and who

wish to seek EENT; and

4. missionaries or religious workers who intend to engage in gainful EENT.

*Note: AEP should be secured regardless of the source of compensation and duration

of the EENT, whether the EENT is part-time or temp

An AEP is issued based on the ff:1. Compliance by the applicant EER or the foreign national w/ the substantive &

documentary requirements;


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2. Determination of DOLE Sec that there is no available Filipino national who is

competent, able and willing to do the job for the EER; and

3. Assessment of the DOLE Sec that the EENT of the foreign national will redound to

national benefit*Note: Understudy Training Program is no longer a requirement in the issuance of

AEP and the EEr has now the option to implement transfer of technology

Requisite for EENT of Resident Aliens:

required to secure their Alien Employment Registration Cert (AERC)

Exemption from Permit

1. All members of the Diplomatic service and foreign govt officials accredited by and

w/ reciprocity arrangement w/ the Ph govt;

2. Officers and staff of international orgs of w/c the PH is a member, and their

legitimate spouses desiring to work in the PH;

3. Foreign nationals elected as members of Governing Board who do not occupy any

other position, but have only voting rights in the corp;

4. All foreign nationals granted exemption by law;

5. Owners & representatives of foreign nationals whose companies are accredited by

the POEA who come to the PH for a limited period and solely for the purpose of

interviewing Filipino applicants for EENT abroad;

6. Foreign nationals who come to the PH to teach, present and/or conduct research

studies in univs and colleges as visiting, exchange or adjunct professors under formal

agreements bet the univs or colleges in the PH an foreign univs or colleges; or bet the

Ph govt and foreign govt; provided that the exemption is on a reciprocal basis; and7. Resident foreign nationals.

Grounds for denial of Application of AEP

1. Misrepresentation of facts in the application;

2. Submission of falsified docs;

3. The foreign national has a derogatory record; or

4. Availability of a Fil who is competent, able and willing to the job intended for thealien.


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Grounds for suspension of AEP

1. The continued stay of the foreign national my result in damage to the interest of

the industry of the country; and

2. the EENT of the alien is suspended by the EER or by the order of the court

Grounds for revocation of AEP

1. Non-compliance w/ any of the requirement/conditions for w/c the AEP was

issued;

2. Misrepresentation of facts in the application;

3. Submission of falsified docs;

4. Meritorious objection or information against the EENT of foreign national as

determined by the Regional Dir;

5. Foreign national has a derogatory record; and

6. EER has terminated the EENT of the foreign national.

Validity of EENT Permit

provides otherwise, w/c shall in no case exceed 5yrs

thereof.

Rule on Nationalized Business

GR: Foreigners may NOT be employed in certain nationalized business.

Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in business

whose exercise or enjoyment is reserved only to Fils or to corporations or assocs whosecapital should be at least 60% Fil-owned

1. Where the Sec of Justice specifically authorizes the EEnt of technical personnel;

2. Aliens who are members of the Board of directors of corps in proportion to their

allowable participation in the capital of such entities; and

3. Enterprises registered under the Omnibus Investment Code in case of technical,

supervisory or advisory positions, but for a limited pd.

Art 41. PROHIBITION AGAINST TRANSFER OF EENT


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1. Aliens shall not transfer to another job or change his EER w/o prior approval of

the Sec of Labor;

2. Non-resident aliens shall not take up EENT in violation of the provisions of the

Code.Note: Violations of the abovementioned acts will subj the alien to the punishment in

Art 289 & 290 and to deportation after service of sentence

BOOK 2: HUMAN RESOURCES

TITLE 1: TECHNICAL EDUCATION AND SKILLS DEVT AUTHORITY

Art 43-56 TESDA

- replaced the National Manpower & Youth Council under RA 7796

Statement of Goals & Objectives

1. To attain international competitiveness;

2. To meet demands for quality middle-level manpower;

3. To disseminate scientific & technical knowledge base;

4. To recognize & encourage the complementary roles of pub & private institutions;

and

5. To inculcate desirable values.

Middle-level Manpower

1. Those who have acquired practical skills & knowledge through formal or non-

formal educ & training equivalent to at least a secondary educ but preferably a post-

secondary educ w/ a corresponding degree/diploma; or

2. Skilled workers who have become highly competent in their trade or craft as

attested by industry.

TITLE 2: TRAINING & EMPLOYMENT OF SPECIAL WORKERS

CH1: APPRENTICES

Art 57 STATEMENT OF OBJECTIVES FOR THE TRAINING & EENT OF SPECIAL

WORKERS

1. To help meet the demand of the economy for trained manpower;

2. To establish a national apprenticeship program; and

3. To establish apprenticeship standards for the protection of apprentices.

Art 58: DEFINITION OF TERMS


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Apprenticeship practical training on the job supplemented by related theoretical

instruction, for a highly skilled or technical instruction for a period of 3-6 months

Apprentice a person undergoing training for an approved apprenticeable occupation

during an established period assured by an apprenticeship agreemtApprenticeable Occupation an occupation officially endorsed by a tripartite body

and approved for apprenticeship by the TESDA (no longer the Sec of Labor)

Apprenticeship Agreement an EENT contract wherein the EER binds himself to

train the apprentice and the apprentice in turn accepts the terms of training

On-the-job training practical work experience through actual participation in

productive activities given to or acquired by an apprentice

Highly technical industries a trade, business, enterprise, industry or other activity,

w/c is engaged in the application of advanced technology

Art 59: QUALIFICATIONS OF APPRENTICES

1. At least 15 y/o, provided that if below 18 y/o, he shall not be eligible for

hazardous occupation;

2. Physically fit for the occupation in w/c he desires to be trained;

3. Possess vocational aptitude and capacity for the particular occupation as

established through appropriate tests; and

4. Possess the ability to comprehend and follow oral & written instructions.

Note: Total physical fitness is not required of the apprentice-applicant unless it is

essential to the expeditious and effective learning of the occupation. Only physical

defects w/c constitute real impediments to effective perf as determined by the plant

apprenticeship committee may dispqualify an applicant

Art 60: EMPLOYMENT OF APPRENTICESQualifications to be met by EER:

1. Only EERS in highly technical industries may employ apprentices; and

2. Only in apprenticeable occupations as determined by the TESDA.

Requisites for a Valid apprenticeship

1. Qualifications of apprentice are met;

2. Apprentice earns not less than 75% of the prescribed minimum salary;3. Apprenticeship agreemt duly executed & signed;


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4. Apprenticeship program must be approved by the TESDA; otherwise the

apprentice shall be deemed a regular EE;

5. Period of apprenticeship shall not exceed 6 months

Note: at the termination of the apprenticeship, the EER is not required to continuethe EENT

There is no valid apprenticeship if:

1. The agreement submitted to the TESDA was made long after the workers started

undergoing apprenticeship;

2. The work performed by the apprenticeship was different from those allegedly

approved by TESDA;

3. The workers undergoing apprenticeship are already skilled workers;

4. The workers were required to continue undergoing apprenticeship beyond 6mos.

Art 61: CONTENTS OF APPRENTICESHIP AGREEMENT

1. Full name & address of the contracting parties;

2. Date of birth of the apprentice;

3. Name of trade, occupation or job in w/c the apprentice shall be trained and the

dates on w/c such training will begin and will proximately end;

4. Approx number of hrs of OJT w/ compulsory theoretical instruction w/c the

apprentice shall undergo during his training;

5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall

be trained and the approx. time to be spent on the job in each process;

6. Graduated scale of wages to be paid to the apprentice;

7. Probationary pd of the apprentice during wc either party ay summarily terminate

their agreemt; and8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the

agreemt, w/ the consent of the apprentice to any other EER who is willing to assume

such oblig.

*Working Hrs shall not exceed the max number of hrs prescribed by law, if any, for

a worker of his age and sex. Time spent in compulsorily theoretical instruction shall be

considered hrs of work. An apprentice not otherwise barred by law from working

8hrs may be requisted by his EER to work overtime and paid accordingly.

Art 62: SIGNING OF APPRENTICESHIP AGREEMENT


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Who signs:

1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latters

absence, by an authorized rep of TESDA; and

2. EER or his duly authorized rep

Art 63: VENUE OF APPRENTICESHIP PROGRAM

1. Within the sponsoring firm, establishment or entity; or

2. Within a DOLE training center or other public training institutions; or

3. Initial training in trade fundamentals in a training center or other institutions w/

subsequent actual work participation w/in the sponsoring firm or entity during the

final stage of training.

Art 64: SPONSORING OF APPRENTICESHIP PROGRAMS BY:

1. The plant, shop or premises of the EER or firm concerned if the apprenticeship

program is organized by an indiv EER or firm;

2. The premises of one or several firms designated for the purpose by the organizer of

the program if such organizer is an assoc of EERS, civic group and the like; and

3. DOLE Training Center or other public training institutions w/ w/c the TESDA has

made approp arrangements.

Art 65-67: VIOLATION OF APPRENTICESHIP AGREEMENT

Art 65: Investigation of violation of apprenticeship agreement

1. Either party to an agreemt may terminate the same after the probationary pd

only for a valid cause.

2. Action may be initiated upon complaint of any interested person or upon DOLEs

own initiative.

Valid Cause to terminate agreement

1. By the EER:

a. Habitual absenteeism in OJT and related theoretical instructions;

b. Willful disobedience of company rules or insubordination to lawful order of a

superior;

c. Poor physical condition, permanent disability or prolonged illness w/c incapacitatesthe apprentice from working;

d. Theft or malicious destruction of company property and/or equipment


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e. Poor efficiency or perf on the job or in the classroom for a prolonged period despite

warnings duly given to the apprentice; and

f. Engaging in violence or other forms of gross misconduct inside the EERs premises

2. By the apprentice:a. Substandard or deleterious working conditions w/in the EERs premises;

b. Repeated violations by the EER of the terms of the apprenticeship agreemt;

c. Cruel or inhumane treatment by the EER or his subordinates;

d. Personal problem s/c in the opinion of the apprentice shall prevent him from a

satisfactory perf of his job; and

e. Bad health or continuing illness.

Art 66: Appeal

Labor w/in 5 days form rcpt of the adverse decision.

inal & executor.

Art 67 Exhaustion of Administrative Remedies

1. The exhaustion of administrative remedies is a condition precedent to the

institution of action.

2. The plant apprenticeship committee shall have initial responsibility for settling

differences arising out of apprenticeship agreements.

Art 68: APTITUDE TESTS

-employers/entities with duly recognized apprenticeship agreements shall provide the

aptitude tests or the DOLE (service free of charge) if without adequate facilities for

the purpose

Art 69: THEORETICAL INSTRUCTION

-done by the employer or of not prepared to assume responsibility, may be delegated

to an appropriate govt agency

Art 70: Exemptions: Voluntary Organizations of Apprenticeship Progs

a. AP is a voluntary undertaking f EErsb. President may require compulsory training of apprentices in certain trades when

natl security so demands


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c. Services of private companies in apprenticeable trades utilized by foreign

technicians are required to setup apprenticeship programs

Art 72: APPRENTICES WITHOUT COMPENSATION-those whose OJT is required by the school or a training prog curriculum

-as a requirement for graduation or board exam

*Note: Working Scholar: Liability of School (Filamer Christian Institute vs IAC, GR

75112, Aug 17, 1992)

CH2: LEARNERS

Art 73. 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.

Art 74. Learners may be employed when no experienced workers are available, the

employment of learners is necessary to prevent curtailment of employment

opportunities, and the employment does not create unfair competition in terms of

labor costs or impair or lower working standards.

Art 75. Any employer desiring to employ learners shall enter into a learnership

agreement with them, which agreement shall include:

a. The names and addresses of the learners;b. The duration of the learnership period, which shall not exceed three (3)

months;

c. The wages or salary rates of the learners which shall begin at not less thanseventy-five percent (75%) of the applicable minimum wage; and

*A commitment to employ the learners if they so desire, as regular employees upon

completion of the learnership. All learners who have been allowed or suffered to work

during the first two (2) months shall be deemed regular employees if training is

terminated by the employer before the end of the stipulated period through no fault

of the learners.

*The learnership agreement shall be subject to inspection by the Secretary of Laborand Employment or his duly authorized representative.


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Art 76. Learners employed in piece or incentive-rate jobs during the training period

shall be paid in full for the work done.

*Learnership and ApprenticeshipSimilarity:

1. Both are training periods for jobs requiring skills that can be acquired through

actual work experience

2. Paid wages 25% lower than the minimum wage

Differences:

1. Learner trains in a semi-skilled job, not more than 3mos; Apprentice trains in a

highly skilled job in highly technical industries, not more than 6mos

2. Learners are hired by employers; apprentices are not hired by the employers

3. Learners allowed even for nontechnical jobs; apprentices allowed only in highly

technical industries and only in apprenticeable occupations approved by DOLE

CH3: HANDICAPPED WORKERS

ART 78. Handicapped workers are those whose earning capacity is impaired by age or

physical or mental deficiency or injury.

ART 79. Handicapped workers may be employed when their employment is necessary

to prevent curtailment of employment opportunities and when it does not create

unfair competition in labor costs or impair or lower working standards.

ART 80. Any employer who employs handicapped workers shall enter into an

employment agreement with them, which agreement shall include:a. The names and addresses of the handicapped workers to be employed;

b. The rate to be paid the handicapped workers which shall not be less than seventy

five (75%) percent of the applicable legal minimum wage;

c. The duration of employment period; and

d. The work to be performed by handicapped workers.

e. The employment agreement shall be subject to inspection by the Secretary of Labor

or his duly authorized representative.


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ART 81. Subject to the appropriate provisions of this Code, handicapped workers may

be hired as apprentices or learners if their handicap is not such as to effectively

impede the performance of job operations in the particular occupations for which they

are hired.

*Magna Carta for Disabled Persons ensures equal opportunities for disabled persons

and prohibits discrimination against them

*qualified disabled persons may become regular employees

CONDITIONS OF EMPLOYMENT

WORKING CONDITIONS & REST PERIODS

Art 82. COVERAGE

Applied to ALL employees in all establishments & undertakings whether for profit or

not

EXCEPT:

i. Government employees

- EES of govt agencies & govt corps governed by the CSC rules and regulations

ii. Managerial employees

those whose primary duty consists of the mgt of the establishment in w/c they are

employed or of a dept/subd thereof, and to other officers/members of the managerial

staff

Members/Officers of the Managerial Staff: Duties & Responsibilities

1. Their primary duty consists of the performance of work directly related to mgt

policies of their ER;

2. They customarily & regularly exercise discretion and independent judgment;3. They regularly & directly assist the managerial EE whose primary duty consists of

the mgt of a dept of the establishment in w/c they are employed;

4. They execute, under gen supervision, work along specialized/technical lines

requiring special training, experience or knowledge;

5. They execute, under gen supervision, special assignments and tasks; and they do

not devote more than 20% of their hours worked in a work-week to activities w/c

are not directly & clearly related to the performance of their work

iii. Field personnel


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non-agricultural employees who regularly perform their duties away from the

principal place of business or branch office of the employer and whose actual hours of

work in the field cannot be determined w/ reasonable certainty

-employees whose time and performance is unsupervised by the employer includingthose engaged in task contract basis, purely commission basis, or those paid on a fixed

amount for performing work irrespective of time consumed

iv. Employers family members who are dependent on him for support

v. Domestic helpers

vi. Persons in the personal service of another

-if services are performed in the employers home which are usually necessary in the

maintenance or enjoyment thereof

vii. Workers paid by result per piece/per task

- laborer/EE w/ no fixed salary, wage, or remuneration but receiving a compensation

from his ER an uncertain & variable amount depending upon the work done or the

result of said work (piece work), irrespective of the time employed

*EER-EE Relationship is not dependent upon the agreement of the parties. The

characterization by law prevails over that in the contract.

-EE relshp is not a matter of stipulation but a question of

law

d. depends on the facts of each case

*EER-EE relship may cover core/non-core activities of the EERs business; the kind of

work is not the definitive test of whether the worker is an EE or not.

Employer any person, natural or juridical, domestic or foreign, who carries on in

the PH any trade, business, industry, undertaking or activity of any kind and uses the

services of another person who is under his order as regards employmentEmployee any person who performs services for an EER in w/c either or both

mental & physical efforts are used and who receives compensation for such services,

where there is an EER-EE relationship

ELEMENTS OF EE-EER RELSHIP (Four-fold Test)

i. the selection and engagement of the EE;

ii. the payment of wages;iii. the power of dismissal;


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iv. the employers power to control the EE w/ respect to the means & methods by

w/c the work is to be accomplished (most important)

Independent contractors can employ others to work & accomplish contemplated

result w/o consent of contractee, while EE cannot substitute another in his place w/oconsent of his EER.

TESTS OF EENT Relship:

1. Right of Control Test where the person for whim the services are performed

reserves a right to control not only the end to be achieved but also the means to be

sued in reaching such end.

Plus: the courts added the existing economic conditions prevailing bet the parties (like

payrolls) in determining the existence of EER-EE Relship.

2. The Economic Dependence Test observes the need to consider the existing

conditions bet the parties

Best approach: Apply the two-tiered test involving:

1. the putative employers power to control the EE w/ respect to the means and

methods by w/c the work is to be accomplished; and

2. the underlying economic realities of the activity or relationship

Circumstances:

a. the extent to w/c the services performed are an integral part of the employers

business;

b. to the extent of the workers investment in equipment and facilities;

c. the nature and degree of control exercised by the employer;

d. the workers opportunity for profit and loss;e. the amount of initiative, skill, judgment or foresight required for the success of the

claimed independent enterprise;

f. the permanency and duration of the relationship between the worker and the

employer; and

g. the degree of dependency of the worker upon the employer for his continued

employment in that line of business

Standard of economic dependence whether the worker is dependent on the alleged

employer for his continued employment in that line of business


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Evidence of employment (substantial evidence)

i. id card

ii. vouchers of salariesiii. sss registration

iv. memorandum

not a test of EEnt status; pakyaw basis does not mean

workers are independent contractors

*Independent contractors- generally rely on their own resources

* Unions and unregistered associations can be EERs of the persons who work for them

*Existence of Employee Relationship Determined by law not by Contract

When Employment relationship present:

a. salaried insurance agent

b. school teachers

c. jeepney driver; taxi driver; barber; boundary-hulog; truck driver

d. piece-rate workers

e. street-hired cargadores

f. workers in movie projects

*Labor Union or Unregistered Associations may be considered employers

-they transact business and perform and carry out activities as employers even if

without legal personality of its own

When Emlpoyment relationship absent:

GR: An employee is not a contractor; a contractor is not an employee.

GR: While EE-ER relationship exists bet a job contractor and the workers that he

hires, no such relationship exists bet those workers and the job contractee, the

contractors client.

enters into contract to render job or service; ER-EE relationship

b/w the contractor and the people he hires-only contractor does not enter into contract to render job or service but

serve as an agent of the true employer by merely recruiting & supplying people; ER-


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EE relationship b/w workers and the enterprise to which they are supplied

(prohibited by law)

a. does not have substantial capital or investment (tools, equipment,machineries) which relates to the job or work to be performed

b. does not have a right of control over the employees in the performance of thework

*Conditions of Employment laid down by law or by contract concluded individually

w/ an EE or collectively w/ a group

2 Kinds of Employment Conditions

a. Statutory provided for by law

b. Voluntary initiated by the ER unilaterally or by contractual stipulation

Art 83. NORMAL HOURS OF WORK

shall not exceed 8 hrs/day

Purpose of 8-hr Labor law:

a. to safeguard the health & welfare of the laborer/EE

b. to minimize unemployment by forcing ERs, in cases where more than 8-hr

operation is necessary, to utilize different shifts to laborers/EEs working only for 8

hrs each

*Part-time Work not prohibited. (What the law regulates is work exceeding 8hrs)

GR: Wage & benefits of a part-timer are in proportion to the number of hrs worked.

Work hrs of Health Personnel

Health personnel shall include, but not limited to, resident physicians, nurses,

nutritionists, dieticians, pharmacists, social workers, lab technicians, paramedics,

psychologists, midwives, attendants, and all other hospital & clinic personnel like

medical secretaries

- 40-hour workweek not applicable if there is a training agreement (duly approved

by appropriate govt agency) between the resident physician and the hospital- 8hrs a day for 5 days; on the 6thday addtl 30% on top of regular wage

-health personnel in govt service not included; covered by RA 7305


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12-hr Workshift with Overtime

- through a contract freely entered into, workshift may exceed 8hrs w/

corresponding overtime pay.

Art 84. HOURS WORKED shall include:

1. all time during w/c an EE is required to be on duty or to be at a prescribed

workplace, and

2. all time during w/c an EE is suffered or permitted to work

Rest periods of short duration during work hrs shall be counted as hours worked

Principles in Determining Hours Wrked

1. All hrs are hrs worked w/c the EE is required to give to his ER, regardless of WON

such hrs are spent in productive labor or involve physical/mental exertion;

2. An EE need not leave the premises of the workplace in order that his rest period

shall not be counted, it being enough that he stops working, may rest completely and

may leave his workplace, to go elsewhere, whether w/in or outside the premises of his

workplace;

3. If the work performed was necessary, or it benefited the ER, or the EE could not

abandon his work at the end of his normal working hrs because he had no

replacement, all time spent for such work shall be considered as hrs worked, if the

work was w/in the knowledge of his ER/immediate supervisor;

4. The time during w/c an EE is inactive by reason of interruptions in his work

beyond his control shall be considered time either if the imminence of the resumption

of work requires the EEs presence at the place of work or if the interval is too brief

tobe utilized effectively & gainfully in the EEs own interest.

Pre/Postliminary Activities

- deemed performed during working hrs, where such activities are

controlled/required by the ER and are pursued necessarily & primarily for the ERs

benefit

Waiting Time


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- controlling factor is WON time spent in idleness is so spent predominantly for the

ERs benefit or for the EEs

1. Engaged to Wait waiting time spent by EE shall be considered as working time if

waiting is considered an integral part of his work or if the EE is required/engaged byan ER to wait

2. Waiting to Engage idle time is not work time

Working While Eating

GR: EE must be completely relieved from duty for the purpose of eating regular

meals. *The meal time is not compensable if he is completely free from duties during

his meal period even though he remains in the workplace.

while eating (ex. Stand-by for emergency work)

- considered overtime if 1hr meal period is reduced

Working While Sleeping

GR: Sleeping time may be considered working time if it is subject to serious

interruption or takes place under conditions substantially less desirable than would be

likely to exist at the EEs home.

irly

desirable conditions, even though EE is required to remain on or near the ERs

premises and must hold himself in readiness for a call to action EeNT, it is not

working time

On Call

- although EE can rest completely and may not be actually at work, if they arerequired to be in their place of work before/after the regular working hrs and w/in

the call of their ERs, the time they stay in the place of work should not be discounted

from their working hrs

- EE cannot use the time effectively for his own purposes is working while on call.

- Not on call: EE is not required to remain on the ERs premises but is merely

required to leave work at his home or w/ company officials where he may be reached

*Public health workers On call status refers to a condition when public healthworkers are called upon to respond to urgent or immediate need for health/medical


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assistance or relief work during emergencies such that he/she cannot devote the time

for his/her own use.

With Cellular phone or Other Contact Device- if EE is kept w/in reach through a cell phone, he is NOT on call

Travel Time depends on the kind of travel involved

a. Travel from home to work not worktime but when EE receives an emergency call

outside his regular working hrs and is required to travel to his regular place of

business or some other worksite it is considered working time

b. Travel that is all in a days work time spent by an EE in travel as part of his

principal activity is considered hrs worked

c. Travel away from home travel that keeps an EE away from home overnight

- work time when it cuts across the EEs workday

- any work the EE is required to perform while travelling is hrs worked

Lectures, Meetings and Training Programs not worktime if:

a. Attendance is outside of the EEs regular working hrs;

b. Attendance is in fact voluntary; and

c. The EE does not perform any productive work during such attendance.

* must meet all criteria

Grievance Meeting time spent in adjusting grievance bet ER & EE during the time

the EEs are required by the ER to be on the premises is hrs worked

f a bona fide union is involved, it depends on the CBA or the custom practice under

the CBA

Semestral Break hrs worked by teachers in private schools; entitled to salary and

emergency cost-of-living allowance

WORK HOURS OF SEAMEN

Requisites for non-counted rest period

a. he ceases to workb. may rest completely


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c. leave or may leave at his will the spot where he actually stays while working, to go

somewhere else, whether w/in or outside the ship

HOURS WORKED: EVIDENCE & DOUBTGR: When an ER alleges that his EE works less than the normal hrs of ENT as

provided for in law, ER bears the burden of proving his allegation w/ clear &

satisfactory evidence

Art 85. MEAL PERIODS must be at least 60minutes time-off for regular meals

GR: meal periods are not compensable

Exceptions:

A. where the lunch period or mealtime is predominantly spent for the ERs benefit

(considered overtime) ;or

B. where it is less than 60 minutes (but not less than 20minutes) must be with full

pay when:

1. where work is non-manual (does not involve strenuous physical exertion);

2. where the establishment regularly operates not less than 16hrs a day

3. in cases of actual or impending emergencies or there is urgent work to be

performed on machineries, equipment or installations to avoid serious loss w/c the ER

would otherwise suffer;

4. where the work is necessary to perevent serious loss of perishable goods

C. If less than 20 minutes it becomes only a rest period and is thus considered work

time

*Note: Meal periods during overtime work is not given to workers performing OT bcoz

OT is usually for a short period

Shortened Meal Break Upon EEs request

- EEs may request that their meal period be shortened so that they can leave work

earlier, it is not compensable

Requisites

1. EEs voluntarily agree in writing and waive their OT pay;

2. No diminution in the salary and other fringe benefits of the EEs already existing;

3. Work is not physically strenuous and they are provided w/ adequate coffee breaksin the morning & afternoon;

4. Value of benefits is equal to the compensation due them;


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5. OT pay will become due and demandable if they are permitted/made to work

beyond 4:30 pm; and

6. The arrangement is of temporary duration.

*Note: The 8-hr work period does not include the meal break. EEs may leave thecompany premises as long as they return to their posts on time.

Art 86 NIGHT SHIFT DIFFERENTIAL

- at least 10% of his regular wage for each hr of work performed b/w 10PM and

6AM

- given as premium for working at a time for sleep & rest

- in addition to the exceptions in Art 82, NSD is n/a to EEs of retail and service

establishments regularly employing 5 employees and below

- if work done from 10pm-6am is OT work, then the 10% night shift differential

should be based on the OT rate

- not waivable (founded on public policy)

- the receipt of OT pay will not preclude payment of NSD pay

- burden of proof of payment of NSD - ER

Art 87. OVERTIME WORK

Overtime Pay additional compensation for work performed beyond 8hrs w/in the

workers 24-hr workday regardless whether the work covers 2 calendar days

Rates

1. on a regular work day regular wage plus at least 25% thereof on succeeding hrs

2. on a holiday or rest day holiday/rest day rate plus at least 30% thereof on

succeeding hrs* CBA may stipulate higher OT pay rate

Actual Work Days as Divisor

PALEA v PAL (1976) PALEA & PAL Supervisors Assoc (PALSA), commenced an

action v PAL in the CIR praying that the latter be ordered to revise the method of

computing the basic daily & hourly rates of its monthly-salaried EEs and necessarily

to pay them their accrued salary differentialsPALs Formula:

monthly salary x 12/365 days in a yr = Basic daily rate


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basic daily rate/8 = Basic hourly rate

Proposed Formula:

Monthly salary x 12/actual working days = BDR

BDR/8 = BHR

Paid Unworked days of a monthly-paid EE

- ER may stipulate that EEs monthly salary constitutes payment for all the days of

the month including rest days & holidays if when converted into its daily equivalent

would still meet minimum wage

How work dayis countedA day the 24-hr period w/c commences from the time the EE regularly starts to

work

- regardless of the day of the week or hr of the day

- any work in excess of the 8hrs w/in the 24-hr pd is considered as OT regardless of

whether the work covers 2 calendar days

- any work in excess of 8 hrs not falling w/in the 24-hr pd is not considered as OT

work

a. Broken Hrs of Work the minimum normal working hrs need not be continuous to

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