LABOR STANDARDS – Atty. Sagmit
to conduct collective bargaining or
GENERAL PROVISIONS
ARTICLE 3. Declaration of basic policy. -
The State shall afford protection to labor,
promote full
employment, ensure equal work
opportunities regardless of sex, race or creed
and regulate the relations between workers
and employers. The State shall assure the
rights of workers to self-organization,
collective bargaining, security of tenure, and
just and humane conditions of work. (PPER-
SCSJ)
ARTICLE II – Declaration of Principles
and State Policies
Section 18. The State affirms labor as a
primary social economic force. It shall
protect the rights of workers and promote
their welfare.
ARTICLE XIII – Social Justice and Human
Rights
Protection to Labor Clause
Section 3. The State shall afford full
protection to labor, local and overseas,
organized and unorganized, and promote full
employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers
to self-organization, collective bargaining
and negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be entitled
to security of tenure, humane conditions of
work, and a living wage. They shall also
participate in policy and decision-making
processes affecting their rights and benefits
as may be provided by law.
The State shall promote the principle of
shared responsibility between workers and
employers and the preferential use of
voluntary modes in settling disputes,
including conciliation, and shall enforce their
mutual compliance therewith to foster
industrial peace.
The State shall regulate the relations
between workers and employers, recognizing
the right of labor to its just share in the fruits
of production and the right of enterprises to
reasonable returns to investments, and to
expansion and growth.
Cardinal Rights of Workers – employment offices and rationalize the
(OCESWWP)
1. to organize themselves,
2.
negotiation with management,
3. to engage in peaceful concerted
activities, including to strike in
accordance with law,
4. to enjoy security of tenure,
5. to work under humane conditions,
6. to receive a living wage,
7. to participate in policy and decision
making processes affecting their rights
and benefits as may be provided by
law.
ARTICLE 4. Construction in favor of
labor. - All doubts in the implementation
and interpretation of the provisions of this
Code, including its implementing rules and
regulations, shall be resolved in favor of
labor.
Management Rights – (RPST)
1. Right to ROI (Return on Investment)
2. Rights to Prescribe Rules
3. Right to Select Employees
4. Right to Transfer or Discharge
Employees
PRE-EMPLOYMENT
A. REECRUITMENT AND PLACEMENT OF
WORKERS
1. State Policy
ARTICLE 12. Statement of objectives. – It is
the policy of the State:
a. To promote and maintain a
state of full employment through
improved manpower training, allocation
and utilization;
b. To protect every citizen desiring
to work locally or overseas by securing
for him the best possible terms and
conditions of employment;
c. To facilitate a free choice of
available employment by persons
seeking work in conformity with the
national interest;
d. To facilitate and regulate the
movement of workers in conformity with
the national interest;
e. To regulate the employment of
aliens, including the establishment of a
registration and/or work permit system;
f. To strengthen the network of public
participation of the private sector in the
recruitment and placement of workers,
 locally and overseas, to serve national
development objectives;
g. To insure careful selection of
Filipino workers for overseas
employment in order to protect the
good name of the Philippines abroad.
2. Definition
ARTICLE 13. Definitions. – (b)
“Recruitment and placement” refers to
any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers, and includes referrals, contract
services, promising or advertising for
employment, locally or abroad, whether for
profit or not: Provided, That any person or
entity which, in any manner, offers or
promises for a fee, employment to two or
more persons shall be deemed engaged in
recruitment and placement. (CECTUHP-
RCSPA)
3. Power and Authority of Sec.
ARTICLE 14. Employment promotion. – The
Secretary of Labor shall have the power and
authority:
a. To organize and establish new
employment offices in addition to the
existing employment offices under the
Department of Labor as the need arises;
b. To organize and establish a nationwide
job clearance and information system to
inform applicants registering with a
particular employment office of job
opportunities in other parts of the country
as well as job opportunities abroad;
c. To develop and 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
d. To require any person, establishment,
organization or institution to submit such
employment information as may be
prescribed by the Secretary of Labor.
Entities authorized to engage in
recruitment and placement
(PoPePaSPCMO)
1. Public employment offices
2. Private recruitment entities
3. Private employment agencies
4. Shipping or manning agents or
representatives
5. 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 or entities as
may be authorized by the DOLE
Secretary.
RA 8042/RA 10022
Sec. 3 (a) "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 miliatry or non-
commercial purposes or on an installation
located offshore or on the high seas; to be
used interchangeably with migrant worker.
SEC. 4. Deployment of Migrant Workers. -
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).
 complaint, the claims arising out of an
Jurisdiction of the POEA employer-employee relationship or by
Section 6. Jurisdiction of the POEA. The POEA virtue of any law or contract involving
shall exercise original and exclusive Filipino workers for overseas
jurisdiction to hear and decide: deployment including claims for actual,
a. all cases which are moral, exemplary and other forms of
administrative in character, involving or damage. Consistent with this mandate, the
arising out of violations of Rules and NLRC shall endeavor to update and keep
Regulations relating to licensing and abreast with the developments in the global
registration, including refund of fees services industry.
collected from the workers and violation The liability of the principal/employer
of the conditions for issuance of license and the recruitment/placement agency
to recruit workers; (Based on for any and all claims under this section
jurisdictional areas under the POEA shall be joint and several. This provision
Charter or E.O. 247, as amended.) shall be incorporated in the contract for
b. disciplinary action cases and overseas employment and shall be a
other special cases, which are condition precedent for its approval. The
administrative in character, involving performance bond to de filed by the
employers, principals, contracting recruitment/placement agency, as provided
partners and OFWs processed by the by law, shall be answerable for all money
POEA. claims or damages that may be awarded to
the workers. If the recruitment/placement
Grounds for Disciplinary Actions agency is a juridical being, the corporate
1. Commission of a felony officers and directors and partners as the
punishable by Philippine laws or laws case may be, shall themselves be jointly and
of host country; solidarily liable with the corporation or
2. Drug addiction or possession or partnership for the aforesaid claims and
trafficking of prohibited drugs; damages.
3. Desertion or abandonment; Any compromise/amicable settlement
4. Gambling; or voluntary agreement on money claims
5. Initiating or joining a strike, inclusive of damages under this section
where prohibited; shall be paid within thirty (30) days from
6. Creating trouble at the work approval of the settlement by the
site; appropriate authority.
7. Embezzlement of company In case of termination of overseas
funds or other properties; employment without just, valid or
8. Theft or robbery; authorized cause as defined by law or
9. Prostitution; contract, or any unauthorized deductions
10. Vandalism; from the migrant worker's salary, the
11. Gunrunning or possession of worker shall be entitled to the full
deadly weapons; reimbursement of his placement fee and
12. Unjust refusal to depart for a the deductions made with interest at twelve
worksite after all documents have been percent (12%) per annum, plus his
prepared; salaries for the unexpired portion of his
13. Violations of the law and sacred employment contract or for three (3)
practices of the host country and months for every year of the unexpired
unjustified breach of the employment term, whichever is less.
contract. (Money claims BEFORE July 15, 1995 is
within the jurisdiction of the POEA. AFTER
Jurisdiction of the NLRC July 1995 jurisdiction is within the NLRC)
SEC. 10. Money Claims. - Notwithstanding Gen. Rule: ARTICLE 18. Ban on direct-
any provision of law to the contrary, the hiring. — No (foreign principal or) employer
Labor Arbiters of the NLRC shall have the may hire a Filipino worker for overseas
original and exclusive jurisdiction to employment except through the boards and
hear and decide, within ninety (90) entities authorized by the Secretary of Labor.
calendar days after the filing of the
Exceptions:
1. diplomatic corps,
2. international organizations, and
3. such other employers as may
be allowed by the Secretary of Labor
4. name hires
Name Hires are those individual workers
who are able to secure contracts for
overseas employment on their own efforts
and representations without the assistance
or participation of any agency.
Regulation of Recruitment and
Placement – RA 8042/10022
1. Entities Prohibited to Recruit
ARTICLE 26. Travel agencies prohibited to
recruit. – Travel agencies and sales agencies
of airline companies are prohibited from
engaging in the business of recruitment and
placement of workers for overseas
employment whether for profit or not.
POEA Rules IRR Book II Rule 1
Section 2. Disqualification. — The
following are not qualified to engage in the
business of recruitment and placement of
Filipino workers overseas:
a. Travel agencies and sales
agencies of airline companies;
b. Officers or members of the
Board of any corporation or members
in a partnership engaged in the
business of a travel agency;
c. Corporations and partnerships,
when any of its officers, members of
the board or partners, is also an
officer, member of the board or partner
of a corporation or partnership
engaged in the business of a travel
agency;
d. Persons, partnerships or
corporations which have derogatory
records, such as but not limited to the
following:
1. Those certified to have derogatory
record or information by the
National Bureau of Investigation or
by the Anti-Illegal Recruitment
Branch of the POEA;
2. Those against whom probable
cause or prima facie finding of guilt
for illegal recruitment or other
related cases exists;
3. Those convicted for illegal
recruitment or other related cases
and/or crimes involving moral
turpitude; and
4. Those agencies whose licenses
have been previously revoked or
cancelled by the Administration for
violation of RA 8042, PD 442 as
amended and their implementing
rules and regulations as well as
these rules and regulations.
All applicants for issuance/renewal
of license shall be required to
submit clearances from the
National Bureau of Investigation
and Anti-Illegal Recruitment
Branch, POEA, including clearances
for their respective officers and
employees.
e. Any official or employee of the
DOLE, POEA, OWWA, DFA and other
government agencies directly involved
in the implementation of R.A. 8042,
otherwise known as Migrant Workers
and Overseas Filipino Act of 1995
and/or any of his/her relatives within
the fourth civil degree of consanguinity
or affinity; and
f. Persons or partners, officers and
Directors of corporations whose
licenses have been previously
cancelled or revoked for violation of
recruitment laws. (Section 2, Rule I,
Part II, Ibid.).
2. Citizenship Requirements
ARTICLE 27. Citizenship requirement. –
Only Filipino citizens or corporations,
partnerships or entities at least seventy-five
percent (75%) of the authorized and voting
capital stock of which is owned and
controlled by Filipino citizens shall be
permitted to participate in the recruitment
and placement of workers, locally or
overseas.
3. Capitalization
POEA Rules IRR Book II Rule 1
Section 1 (b) A minimum capitalization
of P2,000,000.00 in case of a single
proprietorship or partnership and a
minimum paid-up capital of
P2,000,000.00 in case of a corporation;
Provided that those with existing licenses
shall, within four years from effectivity
hereof, increase their capitalization or paid
up capital, as the case may be, to
P2,000,000.00 at the rate of P250,000.00
every year.
4. Non-transferability of License
ARTICLE 29. Non-transferability of license
or authority. – No license or authority shall
be used directly or indirectly by any person
other than the one in whose favor it was
issued or at any place other than that stated
in the license or authority be transferred,
conveyed or assigned to any other person or
entity. Any transfer of business address,
appointment or designation of any agent or
representative including the establishment of
additional offices anywhere shall be subject
to the prior approval of the Department of
Labor.
Note: Change of business name must be with
prior approval of DOLE otherwise it shall be
VOID.
5. Bonds
ARTICLE 31. Bonds. – All applicants for
license or authority shall post such cash and
surety bonds as determined by the Secretary
of Labor to guarantee compliance with
prescribed recruitment procedures, rules and
regulations, and terms and conditions of
employment as may be appropriate.
6. Fees Paid by Workers
POEA RULES AND REGULATIONS –
February 4, 2002
SECTION 2. Fees and Costs Chargeable to
Principals. — Unless otherwise provided, the
principal shall be responsible for the
payment of the following:
a. visa fee;
b. airfare;
c. POEA processing fee; and
d. OWWA membership fee (Sec. 2,
Rule V, Part II).
SECTION 3. Fees/Costs Chargeable to the
Workers. — Except where the prevailing
system in the country where the worker is to
be deployed, either by law, policy or
practice, do not allow the charging or
collection of placement and recruitment fee,
a land-based agency may charge and collect
from its hired workers a placement fee in an
amount equivalent to one month salary,
exclusive of documentation costs.
Documentation costs to be paid by the
worker shall include, but not limited to,
expenses for the following:
a. Passport
b. NBI/Police/Barangay Clearance
c. Authentication
d. Birth Certificate
e. Medicare
f. Trade Test, if necessary
g. Inoculation, when required by host
country
h. Medical Examination fees
In the event that the recruitment agency
agrees to perform documentation services,
the worker shall pay only the actual cost of
the document which shall be covered by
official receipts.
The above-mentioned placement and
documentation costs are the only authorized
payments that may be collected from a hired
worker. No other charges in whatever form,
manner or purpose, shall be imposed on and
be paid by the worker without prior approval
of the POEA.
Such fees shall be collected from a hired
worker only after he has obtained
employment through the facilities of the
recruitment agency. (Section 3, Rule V, Part
II, Ibid.).
7. PROHIBITED PRACTICES; Liability
ARTICLE 34. Prohibited practices. – It
shall be unlawful for any individual, 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, or to make a worker pay 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 act of misrepresentation for
the purpose of securing a license or
authority under this Code.
d. To induce or attempt to induce
a worker already employed to quit his
employment in order to offer him to
another unless the transfer is designed
to liberate the worker from oppressive
terms and conditions of employment;
e. To influence or to attempt to
influence any person or entity not to
employ any worker who has not applied
for employment through his agency;
 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;
g. To obstruct or attempt to
obstruct inspection by the Secretary of
Labor or by his duly authorized
representatives;
h. To fail to file reports on the
status of employment, placement
vacancies, remittance of foreign
exchange earnings, separation from
jobs, departures and such other matters
or information as may be required by
the Secretary of Labor.
i. To substitute or alter employment
contracts approved and verified by the
Department of Labor from the time of
actual signing thereof by the parties up
to and including the periods of
expiration of the same without the
approval of the Secretary of Labor;
j. 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 a
travel agency; and
k. To withhold or deny travel
documents from applicant workers
before departure for monetary or
financial considerations other than
those authorized under this Code and
its implementing rules and regulations.
RA 8042 as amended by RA 10022
SEC. 6. . . . 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;
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;
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 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;
g. 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;
h. 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;
i. 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. 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.
In addition to the acts enumerated above,
it shall also be unlawful for any person or
entity to commit the following prohibited
acts:
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 fpr
recommendatory trainings mandated
by principals/shipowners where the
latter shoulder the cost of such
trainings;
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.
SEC. 15. REPATRIATION OF WORKERS;
EMERGENCY REPATRIATION FUND. - The
repatriation of the worker and the transport
of his personal belongings shall be the
primary responsibility of the agency which
recruited or deployed the worker overseas.
All costs attendant to repatriation shall be
borne by or charged to the agency
concerned and/or its principal. Likewise, the
repatriation of remains and transport of the
personal belongings of a deceased worker
and all costs attendant thereto shall be
borne by the principal and/or local agency.
However, in cases where the termination of
employment is due solely to the fault of the
worker, the principal/employer or agency
shall not in any manner be responsible for
the repatriation of the former and/or his
belongings.
The Overseas Workers Welfare
Administration (OWWA), in coordination ith
appropriate international agencies, shall
undertake the repatriation of workers in
cases of war, epidemic, disasters or
calamities, natural or man-made, and other
similar events without prejudice to
reimbursement by the responsible principal
or agency. However, in cases where the
principal or recruitment agency cannot be
identified, all costs attendant to repatriation
shall be borne by the OWWA.
8. Suspension and/or cancellation of
license or authority
ARTICLE 35. Suspension and/or
cancellation of license or authority. -
The Minister of Labor shall have the power to
suspend or cancel any license or authority to
recruit employees for overseas employment
for violation of rules and regulations issued
by the Ministry of Labor, the Overseas
Employment Development Board, or for
violation of the provisions of this and other
applicable laws, General Orders and Letters
of Instructions.
Note: The power to suspend or revoke the
license or authority to recruit employees for
overseas employment is CONCURRENTLY
vested with the POEA and the DOLE
Secretary.
Verified Undertaking by an Applicant
for a License to Operate a Private
Employment Agency or Manning Agency
– POEA Rules Part II, Rule II Sec. f
1. Shall select only medically and
technically qualified recruits;
2. Shall assume full and complete
responsibility for all claims and liabilities
which may arise in connection with the
use of the license;
3. Shall assume joint and solidary
liability with the employer for all claims
and liabilities which may arise in
connection with the implementation of
the contract, including but not limited to
payment of wages, death and disability
compensation and repatriations;
4. Shall guarantee compliance
with the existing labor and social
legislations of the Philippines and of the
country of employment of the recruited
workers;
5. Shall assume full and complete
responsibility for all acts of its officials,
employees and representatives done in
connection with recruitment and
placement;
6. Shall negotiate for the best
terms and conditions of employment;
7. Shall disclose the full terms and
conditions of employment to the
applicant workers;
8. Shall deploy at least 100
workers to its new markets within one
(1) year from the issuance of its license;
9. Shall provide orientation on
recruitment procedures, terms and
conditions and other relevant
information to its workers and provide
facilities therefor; and
10. Shall repatriate the deployed
workers and his personal belongings
when the need arises.
For the purpose of compliance with item
(1), the agency may require the worker
to undergo trade testing and medical
examination only after the worker has
been pre-qualified for employment.
9. Illegal Recruitment – LOCAL
ARTICLE 38. Illegal recruitment. – (a) Any
recruitment activities, including the
prohibited practices enumerated under
Article 34 of this Code, to be undertaken by
non-licensees or non-holders of authority,
shall be deemed illegal and punishable under
Article 39 of this Code. The Department of
Labor and Employment or any law
enforcement officer may initiate complaints
under this Article.
(b) Illegal recruitment when committed by
a syndicate or in large scale shall be
considered an offense involving economic
sabotage and shall be penalized in
accordance with Article 39 hereof.
Illegal recruitment is deemed committed
by a syndicate if carried out by a group of
three (3) or more persons conspiring and/or
confederating with one another in carrying
out any unlawful or illegal transaction,
enterprise or scheme defined under the first
paragraph hereof.Illegal recruitment is
deemed committed in large scale if
committed against three (3) or more persons
individually or as a group.
(c) The Secretary of Labor and
Employment or his duly authorized
representatives shall have the power to
cause the arrest and detention of such non-
licensee or non-holder of authority if after
investigation it is determined that his
activities constitute a danger to national
security and public order or will lead to
further exploitation of job-seekers. The
Secretary shall order the search of the office
or premises and seizure of documents,
paraphernalia, properties and other
implements used in illegal recruitment
activities and the closure of companies,
establishments and entities found to be
engaged in the recruitment of workers for
overseas employment, without having been
licensed or authorized to do so.
Note: (c) was DECLARED
UNCONSTITUTIONAL in the case of Salazar
vs. Achacoso
Local Forms of Illegal Recruitment:
(Summary)
1. Committed by a non-licensee but
still recruits and places workers.
2. Committed by a licensee, but
committed any of the prohibited
acts mentioned in Art. 34 of the
Labor Code and RA 8042/10022
3. Committed by a non-licensee AND
committed any of the prohibited
acts.
ARTICLE 39. Penalties. –
a. The penalty of life imprisonment and a
fine of P100,000.00 shall be imposed if
illegal recruitment constitutes economic
sabotage as defined herein;
b. Any licensee or holder of authority
found violating or causing another to
violate any provision of this Title or its
implementing rules and regulations shall,
upon conviction thereof, suffer the
penalty of imprisonment of not less than
two years nor more than five years or a
fine of not less than P10,000 nor more
than P50,000, or both such imprisonment
and fine, at the discretion of the court;
c. Any person who is neither a licensee
nor a holder of authority under this Title
found violating any provision thereof or
its implementing rules and regulations
shall, upon conviction thereof, suffer the
penalty of imprisonment of not less than
four years nor more than eight years or a
fine of not less than P20,000 nor more
than P100,000 or both such imprisonment
and fine, at the discretion of the court;
d. If the offender is a corporation,
partnership, association or entity, the
penalty shall be imposed upon the officer
or officers of the corporation, partnership,
association or entity responsible for
violation; and if such officer is an alien, he
shall, in addition to the penalties herein
prescribed, be deported without further
proceedings;
e. In every case, conviction shall cause
and carry the automatic revocation of the
license or authority and all the permits
and privileges granted to such person or
entity under this Title, and the forfeiture
of the cash and surety bonds in favor of
the Overseas Employment Development
Board or the National Seamen Board, as
the case may be, both of which are
authorized to use the same exclusively to
promote their objectives.
Secretary of Labor and Employment or his
duly authorized representative, may cause
the lawful arrest of illegal recruiters either:
1. Judicial warrant – issued by the RTC,
MTC or MCTC judge
2. Without judicial warrant – Sec. 5, Rule
113 Criminal Procedure
10. Illegal Recruitment – OVERSEAS
RA 8042 as amended by RA 10022
SEC. 6. Definition. - 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:
(See a-n in prohibited practices)
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.
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.
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.
SEC. 7. Penalties. -
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 P1,000,000.00 nor more than
(P2,000,000.00).
b. The penalty of life imprisonment and a
fine of not less than P2,000,000.00 nor
more than 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 P500,000.00 nor more than
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.
SEC. 9. Venue. - A criminal action arising
from illegal recruitment as defined herein
shall be filed with the
1. Regional Trial Court of the province or
city where the offense was committed
or
2. where the offended party actually
resides at the same time of the
commission of the offense:
Provided, That the court where the
criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts.
Provided, however, That the aforestated
provisions shall also apply to those criminal
actions that have already been filed in court
at the time of the effectivity of this Act.
Prescriptive Periods for Illegal
Recruitment
Local – 3 years, basis: Art. 290 of the Labor
Code
Overseas – 5 years, basis RA 8042 Sec. 12
Economic Sabotage – 20 years RA 8042
Sec. 12
3 Illegal Practices
1. No license or authority
2. With license or authority but made
prohibited practices under Art. 34
(local)
3. With license or authority but made
prohibited practices under RA 8042
(overseas)
Elements of Large Scale Illegal
Recruitment: (Summary)
1. Accused undertakes any recruitment
activity defines in Art. 13 par. (b) or
any of the prohibited practices under
Art. 34 of the Labor Code.
2. He does not have a license or
authority.
3. Commits the same against 3 or more
persons.
C. Employment of Non-Resident Aliens
ARTICLE 40. Employment permit of non-
resident aliens. – Any alien seeking
admission to the Philippines for employment
purposes and any domestic or foreign
employer who desires to engage an alien for
employment in the Philippines shall obtain
an employment permit from the Department
of Labor.
The employment permit may be issued to
a non-resident alien or to the applicant
employer after a determination of the non-
availability of a person in the Philippines who
is competent, able and willing (CAW) at
the time of application to perform the
services for which the alien is desired.
For an enterprise registered in preferred
areas of investments, said employment
permit may be issued upon recommendation
of the government agency charged with the
supervision of said registered enterprise.
ARTICLE 41. Prohibition against transfer of
employment.
a. After the issuance of an employment
permit, the alien shall not transfer to
another job or change his employer
without prior approval of the Secretary of
Labor.
b. Any non-resident alien who shall take
up employment in violation of the
provision of this Title and its
implementing rules and regulations shall
be punished in accordance with the
provisions of Articles 289 and 290 of the
Labor Code.
In addition, the alien worker shall be
subject to deportation after service of his
sentence.
SECTION 5. Requirements for employment
permit application. — The application for an
employment permit shall be accompanied by
the following:
a. Curriculum vitae duly signed by
the applicant indicating his educational
background, his work experience and
other data showing that he possesses
high technical skills in his trade or
profession;
b. Contract of employment
between the employer and the principal
which shall embody the following,
among others:
1. That the non-resident alien
worker shall comply with all
applicable laws and rules and
regulations of the Philippines;
2. That the non-resident alien
worker and the employer shall bind
themselves to train at least two (2)
Filipino understudies for a period to
be determined by the Secretary of
Labor and Employment; and
3. That he shall not engage in any
gainful employment other than that
for which he was issued a permit.
c. A designation by the employer
of at least two (2) understudies for
every alien worker. Such understudies
must be the most ranking regular
employees in the section or department
for which the expatriates are being
hired to ensure the actual transfer of
technology.
Note: The employer must show the non-
availability of a person in the Philippines who
is competent, able and willing (CAW) at
the time of application to perform the
services for which the alien is desired.
DOLE Department Order No. 75-06,
Series of 2006.
Gen. Rule: All foreign nationals who intend
to engage in gainful employment in the
Philippines shall apply for Alien Employment
Permit (AEP)
Foreign nationals exempted from
securing AEP
1. All members of the diplomatic
service and foreign government officials
accredited by and with reciprocity
arrangement with the Philippine
government;
2. Officers and staff of
international organizations of which the
Philippine government is a member, and
their legitimate spouses desiring to
work in the Philippines;
3. Foreign nationals elected as
members of the Governing Board who
do not occupy any other position, but
have only voting rights in the
corporation;
4. All foreign nationals granted
exemption by law;
5. Owners and representatives of
foreign principals whose companies are
accredited by the Philippines for a
limited period and solely for the purpose
 of interviewing Filipino applicants for Secretariat
employment abroad;
6. Foreign nationals who come to In addition, the President of the
the Philippines to teach, present and/or Philippines shall appoint the following
conduct research studies in universities members from the private sector:
and colleges as visiting, exchange or (TRIPARTITE BODY)
adjunct professors under formal a. two (2) representatives, from the
agreements between the universities or employer/industry organization,
colleges in the Philippines and foreign one of whom shall be a woman;
universities or colleges; or between the b. three (3) representatives, from the
Philippine government and foreign labor sector, one of whom shall be a
government; provided that the woman; and
exemption is on reciprocal basis; and c. two (2) representatives of the
7. Resident foreign nationals. national associations of private
technical-vocational education
and training institutions, one of
HUMAN RESOURCES DEVELOPMENT whom shall be a women.
A. RA 7796, Technical Education and As soon as all the members of the private
Skills Development Authority sector are appointed, they shall so organized
1. What is TESDA? themselves that the term of office of one-
SEC. 5. Technical Education and Skills third (1/3) of their number shall expire every
Development Authority; Creation. - To year. The member from the private sector
implement the policy appointed thereafter to fill vacancies caused
declared in this Act, there is hereby created by expiration of terms shall hold office for
a Technical Education and Skills three (3) years.
Development Authority (TESDA), hereinafter The President of the Philippines may,
referred to as the Authority, which shall however, revise the membership of the
replace and absorb the National Manpower TESDA Board, whenever the President deems
and Youth Council (NMYC), the Bureau of it necessary for the effective performance of
Technical and Vocational Education (BTVE) the Board's functions through an
and the personnel and functions pertaining administrative order.
to technical-vocational education in the The TESDA Board shall meet at least
regional offices of the Department of twice a year, or as frequently as may be
Education, Culture and Sports (DECS) and deemed necessary by
the apprenticeship program of the Bureau of its Chairperson. In the absence of the
Local Employment of the Department of Chairperson, a Co-Chairperson shall preside.
Labor and Employment. In case any member of the Board
representing the Government cannot attend
2. Composition the meeting, he or she shall be
SEC. 7. Composition of the TESDA Board. - regularly represented by an undersecretary
The TESDA Board shall be composed of the or deputy-director general, as the case may
following: be, to be designated by such member for the
purpose.
The Secretary of Labor and Chairperso The benefits, privileges and emoluments
Employment n of the Board shall be consistent with existing
Secretary of Education, Culture Co- laws and rules.
and Sports Chairperso
n 3. Committees
Secretary of Trade and Industry Co- SEC. 19. Technical Education and Skills
Chairperso Development Committees. - The Authority
n shall establish Technical Education and Skills
Secretary of Agriculture Member Development Committees at the regional
Secretary of Interior and Local Member and local levels to coordinate and monitor
Government the delivery of all skills development
Director-General of the TESDA Member activities by the public and private sectors.
These committees shall likewise serve as the
Technical Education and Skills Development
Committees of the Regional and local
development councils. The compositions of
the Technical Education and
Skills development Committees shall be
determined by the Director-General subject
to the guidelines to be promulgated by the
Authority.
4. Skills Development Centers
SEC. 20. Skills Development Centers. - The
Authority shall strengthen the network of
national, regional and local skills training
centers for the purpose of promoting skills
development. This network shall include
skills training centers in vocational and
technical schools, technical institutes,
polytechnic colleges, and all other duly
accredited public and private dual system
educational institutions. The technical
education and skills development centers
shall be administered and operated under
such rules and regulations as may be
established by the Authority in accordance
with the National Technical Education and
Skills Development Plan.
5. Incentive Schemes
SEC. 27. Incentives Schemes. - The
Authority shall develop and administer
appropriate incentive
schemes to encourage government and
private industries and institutions to provide
high-quality technical education and skills
development opportunities.
ARTICLE 52. Incentive Scheme. – An
additional deduction from taxable income of
one-half (1/2) of the value of labor training
expenses incurred for development
programs shall be granted to the person or
enterprise concerned provided that such
development programs, other than
apprenticeship, are approved by the Council
and the deduction does not exceed ten
percent (10%) of the direct labor wage.
There shall be a review of the said
scheme two years after its implementation.
B. Training and Employment of Special
Workers
1. Apprentices
a. Definition of Terms
SEC. 4. Definition of Terms. - As used in this
Act:
• Skill shall mean the acquired and
practiced ability to carry out a task or job;
• Skills Development shall mean the
process through which learners and
workers are systematically provided
with learning opportunities to acquire or
upgrade, or both, their ability, knowledge
and behavior pattern required as
qualifications for a job or range of jobs in
a given occupational area;
• Technical Education shall refer to
the education process designed at post-
secondary and lower tertiary levels,
officially recognized as non-degree
programs aimed at preparing technicians,
para-professionals and other categories of
middle-level workers by providing them
with a broad range of general education,
theoretical, scientific and technological
studies, and related job skills training;
• Trade shall mean any group of
interrelated jobs or any occupation which
is traditionally or officially recognized as
craft or artisan in nature requiring specific
qualifications that can be acquired
through work experience and/or training;
• Middle-Level Manpower refers to
those:
1. who have acquired practical skills and
knowledge through formal or non-
formal education and training
equivalent to at least a secondary
education but preferably at post-
secondary education with a
corresponding degree of diploma; or
2. skilled workers who have become
highly competent in their trade or craft
as attested by industry;
• Private Enterprises refers to an
economic system under which property of
all kinds can be privately owned and in
which individuals, alone or in association
with another, can embark on a business
activity. This includes industrial,
agricultural, or agro-industrial
establishments engaged in the
production, manufacturing, processing,
repacking or assembly of goods including
service-oriented enterprises;
• Trainers shall mean persons who
direct the practice of skills towards
immediate improvement in some task;
• Trainors/trainers shall mean persons
who provide training to trainers aimed at
 developing the latter's capacities for
imparting attitudes, knowledge, skills and
behavior patters required for specific
jobs, tasks, occupations or group of
related occupations.
• Trainees shall mean persons who are
participants in a vocational,
administrative or technical training
program for the purpose of acquiring and
developing job-related skills;
• Apprenticeship training within
employment with compulsory related
theoretical instruction involving a
contract between an apprentice and
an employer on an approved
apprenticeable occupation;
• Apprentice is a person undergoing
training for an approved
apprenticeable occupation during an
apprenticeship agreement;
• Apprenticeship Agreement is a
contract wherein a prospective
employer binds himself to train the
apprentice who in turn accepts the
terms of training for a recognized
apprenticeable occupation
emphasizing the rights, duties and
responsibilities of each party;
• Apprenticeable Occupation is an
occupation officially endorsed by a
tripartite body and approved for
apprenticeable by the Authority;
• Learners refers to persons hired
as trainees in semi-skilled and other
industrial occupations which are non-
apprenticeable. Learnership
programs must be approved by the
Authority;
b. Qualifications
ARTICLE 59. Qualifications of apprentice. –
To qualify as an apprentice, a person shall:
a. Be at least fourteen (14) years of age;
b. Possess vocational aptitude and
capacity for appropriate tests; and
c. Possess the ability to comprehend and
follow oral and written instructions.
Trade and industry associations may
recommend to the Secretary of Labor
appropriate educational requirements for
different occupations.
Note: Apprenticeship period should not
exceed 6 months. (Art. 61)
The wage of the apprentice shall not be
below75% of the minimum wage required by
law. (Art. 61)
c. Apprenticeable Occupation
Sec. 4 (m) Apprenticeable Occupation is
an occupation officially endorsed by a
tripartite body and approved for
apprenticeable by the Authority.
Note: tripartite (3) body is composed of the
private sector from: (Sec. 7 par. (2) TESDA
Law)
1. Employer/industry organization
2. Labor sector
3. National associations of private
technical vocational education and
training institutions.
d. Apprenticeship Agreement
TESDA Sec. 4 Apprenticeship
Agreement is a contract wherein a
prospective employer binds himself to train
the apprentice who in turn accepts the terms
of training for a recognized apprenticeable
occupation emphasizing the rights, duties
and responsibilities of each party.
ARTICLE 60. Employment of
apprentices. - Only employers in the
highly technical industries may employ
apprentices and only in apprenticeable
occupations approved by the Secretary of
Labor and Employment. (As amended by
Section 1, Executive Order No. 111,
December 24, 1986).
ARTICLE 61. Contents of apprenticeship
agreements. – Apprenticeship agreements,
including the wage rates of apprentices, shall
conform to the rules issued by the Secretary
of Labor and Employment.
• The period of apprenticeship shall
not exceed six months.
• Apprenticeship agreements providing
for wage rates below the legal
minimum wage, which in no case
shall start below 75 percent of the
applicable minimum wage,
• may be entered into only in
accordance with apprenticeship
programs duly approved by the
Secretary of Labor and Employment.
The Department shall develop standard
model programs of apprenticeship. (As
amended by Sec. 1, Exec. Order No. 111,
Dec. 24, 1986).
ARTICLE 62. Signing of apprenticeship
agreement. -Every apprenticeship
agreement shall be signed by
1. the employer or his agent, or
2. by an authorized representative of any
of the recognized organizations,
associations or groups and by the
apprentice.
An apprenticeship agreement with a
minor shall be signed in his behalf by
1. his parent or guardian, if the latter is
not available,
2. by an authorized representative of the
Department of Labor, and the same
shall be binding during its lifetime.
Every apprenticeship agreement entered
into under this Title shall be ratified by the
appropriate apprenticeship committees, if
any, and a copy thereof shall be furnished
both the employer and the apprentice.
ARTICLE 63. Venue of apprenticeship
programs. – Any firm, employer, group or
association, industry organization or civic
group wishing to organize an apprenticeship
program may choose from any of the
following apprenticeship schemes as the
training venue for apprentice:
a. Apprenticeship conducted
entirely by and within the sponsoring
firm, establishment or entity;
b. Apprenticeship entirely within a
Department of Labor and Employment
training center or other public training
institution; or
c. Initial training in trade
fundamentals in a training center or
other institution with subsequent actual
work participation within the sponsoring
firm or entity during the final stage of
training.
ARTICLE 64. Sponsoring of apprenticeship
program. – Any of the apprenticeship
schemes recognized herein may be
undertaken or sponsored by a single
employer or firm or by a group or association
thereof or by a civic organization. Actual
training of apprentices may be undertaken:
a. In the premises of the
sponsoring employer in the case of
individual apprenticeship programs;
b. In the premises of one or
several designated firms in the case of
programs sponsored by a group or
association of employers or by a civic
organization; or
c. In a Department of Labor and
Employment training center or other
public training institution.
ARTICLE 65. Investigation of violation of
apprenticeship agreement. – Upon complaint
of any interested person or upon its own
initiative, the appropriate agency of the
Department of Labor and Employment or its
authorized representative shall investigate
any violation of an apprenticeship agreement
pursuant to such rules and regulations as
may be prescribed by the Secretary of Labor
and Employment.
ARTICLE 66. Appeal to the Secretary of
Labor and Employment. - The decision of the
authorized agency of the Department of
Labor and Employment may be appealed by
any aggrieved person to the Secretary of
Labor and Employment within five (5) days
from receipt of the decision. The decision of
the Secretary of Labor and Employment shall
be final and executory.
ARTICLE 67. Exhaustion of administrative
remedies. – No person shall institute any
action for the enforcementof any
apprenticeship agreement or damages for
breach of any such agreement, unless he has
exhausted all available administrative
remedies.
ARTICLE 68. Aptitude testing of applicants.
– Consonant with the minimum qualifications
of apprentice-applicants required under this
Chapter, employers or entities with duly
recognized apprenticeship programs shall
have primary responsibility for providing
appropriate aptitude tests in the selection of
apprentices. If they do not have adequate
facilities for the purpose, the Department of
Labor and Employment shall perform the
service free of charge.
ARTICLE 69. Responsibility for theoretical
instruction. – Supplementary theoretical
instruction to apprentices in cases where the
program is undertaken in the plant may be
done by the employer. If the latter is not
prepared to assume the responsibility, the
same may be delegated to an appropriate
government agency.
ARTICLE 70. Voluntary organization of
apprenticeship programs; exemptions. –
a. The organization of apprenticeship
program shall be primarily a voluntary
undertaking by employers;
(EXCEPTIONS)
b. When 1) national security or
particular requirements of 2) economic
development so demand, the
President of the Philippines may require
compulsory training of apprentices
in certain trades, occupations, jobs or
employment levels where shortage of
trained manpower is deemed
critical as determined by the Secretary
of Labor and Employment. Appropriate
rules in this connection shall be
promulgated by the Secretary of Labor
and Employment as the need arises;
and
c. Where services of foreign
technicians are utilized by private
companies in apprenticeable trades,
said companies are required to set up
appropriate apprenticeship
programs.
ARTICLE 71. Deductibility of training
costs. – An additional deduction from
taxable income of one-half (1/2) of the
value of labor training expenses incurred
for developing the productivity and
efficiency of apprentices shall be granted to
the person or enterprise organizing an
apprenticeship program: Provided, That such
program is duly recognized by the
Department of Labor and Employment:
Provided, further, That such deduction shall
not exceed ten (10%) percent of direct
labor wage: and Provided, finally, That the
person or enterprise who wishes to avail
himself or itself of this incentive should pay
his apprentices the minimum wage.
Note:
• It is deduction from the TAXABLE
INCOME
• It is ½ of the VALUE of the training
EXPENSES
• It is (the program) RECOGNIZED by
the DOLE
• The deduction shall not exceed 10% of
the direct labor wage
• The employer shall pay his apprentice
the MINIMUM WAGE and NOT
discounted 75% maximum allowed by
law.
e. Apprenticeship without
Compensation
ARTICLE 72. Apprentices without
compensation. – The Secretary of Labor
and Employment may authorize the hiring of
apprentices without compensation whose
training on the job is required by the school
or training program curriculum or as
requisite for graduation or board
examination.
IRR Book III Rule X
SECTION 14. Working scholars. — There is
no employer-employee relationship between
students on one hand, and schools, colleges
or universities on the other, where there is
written agreement between them under
which the former agree to work for the latter
in exchange for the privilege to study free of
charge, provided the students are given real
opportunities, including such facilities as
may be reasonable and necessary to finish
their chosen courses under such agreement.
2. Learners
ARTICLE 73. Learners defined. – Learners
are persons hired as trainees in semi-
skilled and other industrial occupations
which are non-apprenticeable and
which may be learned through practical
training on the job in a relatively short
period of time which shall not exceed
three (3) months.
TESDA Sec. 4 Learners refers to persons
hired as trainees in semi-skilled and other
industrial occupations which are non-
apprenticeable. Learnership programs
must be approved by the Authority.
ARTICLE 74. When learners may be hired. –
Learners may be employed when no
experienced workers are available, the
employment of learners is necessary to
prevent curtailment of employment
opportunities, and the employment
does not create unfair competition in
terms of labor costs or impair or lower
working standards.
ARTICLE 75. Learnership agreement. – Any BOTH: Training periods for jobs requiring
employer desiring to employ learners shall skills that can be acquired through actual
enter into a learnership agreement with work experience; both learner and
them, which agreement shall include: apprentice may be paid wages twenty-five
a. The names and addresses of (25%) percent lower than the applicable
the learners; legal minimum wage.
b. The duration of the learnership
period, which shall not exceed three (3) Learner is not an apprentice, but an
months; apprentice is considered a learner.
c. The wages or salary rates of the
learners which shall begin at not less 3. Handicapped Workers
than seventy-five percent (75%) of the ARTICLE 78. Definition. – Handicapped
applicable minimum wage; and workers are those whose earning capacity is
d. A commitment to employ the impaired by age or physical or mental
learners if they so desire, as regular deficiency or injury.
employees upon completion of the
learnership. All learners who have ARTICLE 79. When employable. –
been allowed or suffered to work Handicapped workers may be employed
during the first two (2) months when their employment is necessary to
shall be deemed regular employees prevent curtailment of employment
if training is terminated by the opportunities and when it does not create
employer before the end of the unfair competition in labor costs or impair or
stipulated period through no fault lower working standards.
of the learners. ARTICLE 80. Employment agreement. – Any
The learnership agreement shall be subject employer who employs handicapped workers
to inspection by the Secretary of Labor and shall enter into an employment agreement
Employment or his duly authorized with them, which agreement shall include:
representative. a. The names and addresses of the
handicapped workers to be employed;
ARTICLE 76. Learners in piecework. – b. The rate to be paid the handicapped
Learners employed in piece or incentive-rate workers which shall not be less than seventy
jobs during the training period shall be paid five (75%) percent of the applicable legal
in full for the work done. minimum wage;
c. The duration of employment period; and
Learnership vs. Apprenticeship: d. The work to be performed by handicapped
workers.
Learnership Apprenticeship The employment agreement shall be subject
• training in semi- • training in highly- to inspection by the Secretary of Labor or his
skilled job; skilled job; job duly authorized representative.
industrial occupa- found in highly- ARTICLE 81. Eligibility for apprenticeship. –
tions that require technical industry; Subject to the appropriate provisions of this
training for less training period Code, handicapped workers may be hired as
than 3 months exceeds 3 months apprentices or learners if their handicap is
• job is non- • minimum period is not such as to effectively impede the
apprenticeable 6 months performance of job operations in the
because its particular occupations for which they are
• no commitment to
practical skills can hired.
hire an apprentice
be learned in 3 (not even after
6) months RA 7277 Magna Carta for Disabled
completion of
Persons
• commitment to hire period
Sec. 4. Definition of Terms. — For purposes
a learner after the • prior DOLE
of this Act, these terms are defined as
period approval required
follows:
• no need for prior for hiring
(a) Disabled persons are those suffering
approval from DOLE apprentices
from restriction or different abilities, as a
in terms of hiring
result of a mental, physical or sensory
impairment, to perform an activity in the
manner or within the range considered
normal for a human being;
b) Impairment is any loss, diminution or
aberration of psychological, physiological, or
anatomical structure or function;
(c) Disability shall mean 1) a physical or
mental impairment that substantially limits
one or more psychological, physiological or
anatomical function of an individual or
activities of such individual; 2) a record of
such an impairment; or 3) being regarded as
having such an impairment;
d) Handicap refers to a disadvantage for a
given individual, resulting from an
impairment or a disability, that limits or
prevents the function or activity, that is
considered normal given the age and sex of
the individual;
(h) Reasonable Accommodation include
1) improvement of existing facilities used by
employees in order to render these readily
accessible to and usable by disabled
persons; and 2) modification of work
schedules, reassignment to a vacant
position, acquisition or modification of
equipment or devices, appropriate
adjustments or modifications of
examinations, training materials or company
policies, rules and regulations, the provision
of auxiliary aids and services, and other
similar accommodations for disabled
persons;
(i) Sheltered Employment refers to the
provision of productive work for disabled
persons through workshops providing special
facilities, income-producing projects or
homework schemes with a view to giving
them the opportunity to earn a living thus
enabling them to acquire a working capacity
required in open industry;
(l) Qualified Individual with a Disability
shall mean an individual with a disability
who, with or without reasonable
accommodations, can perform the essential
functions of the employment position that
such individual holds or desires. However,
consideration shall be given to the
employer's judgment as to what functions of
a job are essential, and if an employer has
prepared a written description before
advertising or interviewing applicants for the
job, this description shall be considered
evidence of the essential functions of the
job;
Sec. 5. Equal Opportunity for Employment.
— No disable person shall be denied
access to opportunities for suitable
employment. A qualified disabled
employee shall be subject to the same
terms and conditions of employment
and the same compensation, privileges,
benefits, fringe benefits, incentives or
allowances as a qualified able bodied
person.
Five percent (5%) of all casual emergency
and contractual positions in the Departments
of Social Welfare and Development; Health;
Education, Culture and Sports; and other
government agencies, offices or corporations
engaged in social development shall be
reserved for disabled persons.
Sec. 6. Sheltered Employment — If suitable
employment for disabled persons cannot be
found through open employment as provided
in the immediately preceding Section, the
State shall endeavor to provide it by means
of sheltered employment. In the placement
of disabled persons in sheltered
employment, it shall accord due regard to
the individual qualities, vocational goals and
inclinations to ensure a good working
atmosphere and efficient production.
Sec. 7. Apprenticeship. — Subject to the
provisions of the Labor Code as amended,
disabled persons shall be eligible as
apprentices or learners: Provided, That their
handicap is not as much as to effectively
impede the performance of job operations in
the particular occupation for which they are
hired; Provided, further, That after the lapse
of the period of apprenticeship, if found
satisfactory in the job performance, they
shall be eligible for employment.
Sec. 8. Incentives for Employers. —
a. To encourage the active
participation of the private sector in
promoting the welfare of disabled
persons and to ensure gainful
employment for qualified disabled
persons, adequate incentives shall be
provided to private entities which
employ disabled persons.
b. Private entities that employ
disabled persons who meet the required
skills or qualifications, either as regular
employee, apprentice or learner, shall
be entitled to an additional deduction,
 from their gross income, equivalent to
twenty-five percent (25%) of the total
amount paid as salaries and wages to
disabled persons: Provided, however,
That such entities present proof as
certified by the Department of Labor
and Employment that disabled persons
are under their employ: Provided,
further, That the disabled employee is
accredited with the Department of
Labor and Employment and the
Department of Health as to his
disability, skills and qualifications.
c. Private entities that improve or
modify their physical facilities in order
to provide reasonable accommodation
for disabled persons shall also be
entitled to an additional deduction from
their net taxable income, equivalent to
fifty percent (50%) of the direct costs of
the improvements or modifications. This
Section, however, does not apply to
improvements or modifications of
facilities required under BP 344.
Sec. 32. Discrimination on Employment. —
No entity, whether public or private, shall
discriminate against a qualified disabled
person by reason of disability in regard to job
application procedures, the hiring,
promotion, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges of
employment. The following constitute acts of
discrimination:
a. Limiting, segregating or
classifying a disabled job applicant in
such a manner that adversely affects
his work opportunities;
b. Using qualification standards,
employment tests or other selection
criteria that screen out or tend to screen
out a disabled person unless such
standards, tests or other selection
criteria are shown to be job-related for
the position in question and are
consistent with business necessity;
c. Utilizing standards, criteria, or
methods of administration that:
1. have the effect of discrimination on
the basis of disability; or
2. perpetuate the discrimination of
others who are subject to common
administrative control.
d. Providing less compensation,
such as salary, wage or other forms of
remuneration and fringe benefits, to a
qualified disabled employee, by reason
of his disability, than the amount to
which a non-disabled person performing
the same work is entitled;
e. Favoring a non-disabled
employee over a qualified disabled
employee with respect to promotion,
training opportunities, study and
scholarship grants, solely on account of
the latter's disability;
f. Re-assigning or transferring a disabled
employee to a job or position he cannot
perform by reason of his disability;
g. Dismissing or terminating the
services of a disabled employee by
reason of his disability unless the
employer can prove that he impairs the
satisfactory performance of the work
involved to the prejudice of the business
entity: Provided, however, That the
employer first sought to provide
reasonable accommodations for
disabled persons;
h. Failing to select or administer in
the most effective manner employment
tests which accurately reflect the skills,
aptitude or other factor of the disabled
applicant or employee that such tests
purports to measure, rather than the
impaired sensory, manual or speaking
skills of such applicant or employee, if
any; and
i. Excluding disabled persons from
membership in labor unions or similar
organizations.
Sec. 33. Employment Entrance
Examination. — Upon an offer of
employment, a disabled applicant may be
subjected to medical examination, on the
following occasions:
a. all entering employees are
subjected to such an examination
regardless of disability;
b. information obtained during the
medical condition or history of the
applicant is collected and maintained on
separate forms and in separate medical
files and is treated as a confidential
medical record; Provided, however,
That:
1. supervisors and managers may be
informed regarding necessary
restrictions on the work or duties of
the employees and necessary
accommodations;
 2. first aid and safety personnel may be
informed, when appropriate, if the
disability may require emergency
treatment;
3. government officials investigating
compliance with this Act shall be
provided relevant information on
request; and
4. the results of such examination are
used only in accordance with this Act.
4. Employment of Students
RA 9547 amending RA 7323 – Special
Program for Employment of Students
(SPES)
Section 1. Any provision of law to the
contrary notwithstanding, any person or
entity employing at least 10 persons may
employ poor but deserving students 15 years
of age but not more 25 years old, paying
them a salary or wage not lower than the
minimum wage for private employers and
the applicable hiring rate for the national and
local government agencies: Provided, that
student enrolled in the secondary level shall
only be employed during summer and/or
christmas vacations, while those enrolled in
the tertiary, vocational or technical
education may be employed at any time of
the year: Provided, further, That their period
of employment shall be from 20 to 52
working days only, except that during
Christmas vacation, employment shall be
from 10 to 15 days which may be counted as
part of the students' probationary period
should they apply in the same company or
agency after graduation: Provided, finally,
That students employed in activities related
to their course may earn equivalent
academic credits as may be determined by
the appropriate government agencies.
For purposes of this Act, poor but
deserving students refer to those whose
parents' combined income, together with
their own, if any, does not exceed the annual
regional poverty threshold level for a family
of 6 for the preceding year as may be
determined by the NEDA. Employment
facilitation services for applicants to the
program shall be done by the Public
Employment Service Office (PESO).
Participating employers in coordination
with the PESO, must inform their SPES
employees of their rights, benefits, and
privileges under existing laws, company
policies, and employment contracts.
Section 2. 60% of the said salary or wage
shall be paid by the employers in cash and
40% by the government in the form of a
voucher which shall be applicable in the
payment for the students' tuition fees and
books in any educational institution for
secondary, tertiary, vocational or technical
education: Provided, That local government
units (LGUs) may assume responsibility for
paying in full his salary or wages. The
amount of the education vouchers shall be
paid by the government to the educational
institutions concerned within 30 days from
its presentation to the officer or agency
designated by the Secretary of Finance.
The vouchers shall not be transferable
except when the payees thereof dies or for a
justifiable cause stops in his duties, in which
case it can be transferred to his brothers or
sisters. If there be none, the amount thereof
shall be paid his heirs or to the payee
himself, as the case may be."
Section 3. The DOLE Secretary, the DECS
Secretary, the CHED Chairman, the DBM, the
DSWD Secretary and the DF Secretary shall
issue the corresponding rules and
regulations to carry out the purposes of this
act.
The DOLE Secretary shall be the Program
Chairman.
Section 4. Any persons or entity who
refuses to honor education vouchers or
makes any fraudulent or fictitious claim
under this Act, regardless of whether
payment has been made, shall upon
conviction be punished with imprisonment of
not less than 6 months and not more than 1
year and a fine of not less than P10,000.00,
without prejudice to their prosecution and
punishment for any other offense punishable
under the Revised Penal Code or any other
penal statute.
In case of partnerships or corporations,
the managing partner, general manager, or
chief executive officer, as the case may be,
shall be criminally liable.
 CONDITIONS OF EMPLOYMENT
A. Working Conditions and Rest Periods
ARTICLE 82. Coverage. – The provisions of
this Title shall apply to employees in all
establishments and undertakings whether for
profit or not, but not to:
1. government employees,
2. managerial employees,
3. field personnel,
4. members of the family of the
employer who are dependent on him for
support,
5. domestic helpers, persons in the
personal service of another, and
6. workers who are paid by results as
determined by the Secretary of Labor in
appropriate regulations.
As used herein, “managerial
employees” refer to those whose:
1. primary duty consists of the
management of the establishment in
which they are employed or of a
department or subdivision thereof, and
2. to other officers or members of the
managerial staff.
“Field personnel” shall refer to
1. non-agricultural employees who
2. regularly perform their duties away
from the principal place of business or
branch office of the employer and
3. whose actual hours of work in the field
cannot be determined with reasonable
certainty.
(MEMORIZE Art. 82)
• Employees in all establishments and
undertakings whether for profit or not
BUT NOT TO:
1. government employees,
2. managerial employees – those
whose primary duty consists of the
management of the establishment in
which they are employed or of a dept
or subdivision thereof, and to other
officers or members of the managerial
staff
3. field personnel – refer to 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 with reasonable
certainty
4. members of the family who are
dependent on him for support
5. domestic helpers
6. persons in the personal service
of another
7. workers who are paid by results
1. Employment relationship as condition
precedent
Philippine Fuji Xerox vs. NLRC –
Depending on the applicability of the tests of
employment, an ER-EE relationship may exist
regardless of the nature of the activities
involved. The kind of work is not the
definitive test whether the worker is an
employee or not.
Definition of Employer and Employee
Employer is one who employs the services of
others; one for whom the employees work
and who pays their wages and salaries.
Employee is one who is engaged in the
service of another; who performs services for
another; who works for salary or wages. His
work is subject to the control of the employer
not only as to the result but the manner and
means of doing it.
Under Article 97 of the Labor Code:
Employer – includes any person acting
directly or indirectly in the interest of an
employer in relation to an employee …
Employee – includes any individual employed
by an employer.
Under the Social Security Law, R.A. 1161
Employer – Any person, natural or juridical,
domestic or foreign, who carries on in the
Philippines any trade, business, industry,
undertaking, or activity of any kind and uses
the services of another person who is under
his orders as regards the employment…
Employee – Any person who performs
services for an employer in which either or
both mental and physical efforts are used
and who receives compensation for such
services, where there is an employer-
employee relationship.
Elements of employment relationship
(4-fold test) (SePaPoCo) (MEMORIZE)
1. Selection and engagement of
the employee
2. Payment of wages
3. Power of dismissal
 4. Employer’s power to control the
employee with respect to the means
and methods by which the work is to be
accomplished aka Control test
(Brotherhood Labor Unity vs.
Zamora)
Sevilla vs. CA – Court considered in
addition to the standard of right-of-control,
the existing economic conditions prevailing
between the parties, like the inclusion of the
employee in the payrolls, in determining the
existence of ER-EE relationship.
– The fact that one had been designated
“branch manager” does not make such
person an employee. Employment is
determined by the right-of-control test and
certain economic parameters.
• Control test calls merely for the
existence of the right to control the
manner of doing the work, not the actual
exercise of the right.
Two-Tiered Approach; the Economic
Dependence Test
Francisco vs. NLRC – The two-tiered test
involve:
1. The putative employer’s power to
control the employee with respect to
the means and methods by which the
work is to be accomplished; and
2. The underlying economic realities of
the activity or relationship.
– The determination of the relationship
between employer and employee depends
upon the circumstances of the whole
economic activity, such as:
1. the extent to which the services
performed are an integral part of the
employer’s business;
2. the extent of the worker’s
investment in equipment and facilities;
3. the nature and degree of
control exercised by the employer;
4. the worker’s opportunity for
profit and loss;
5. the amount of initiative, skill,
judgment or foresight required for the
success of the claimed independent
enterprise;
6. the permanency and duration of
the relationship between the worker and
the employer; and
7. the degree of dependency of
the worker upon the employer for his
continued employment in that line of
business.
– The proper standard of economic
dependence is whether the worker is
dependent on the alleged employer for his
continued employment in that line of
business.
Evidence to Establish ER-EE
Domasig vs. NLRC – In administrative and
quasi-judicial proceedings, substantial
evidence is sufficient as basis for judgment
of existence of ER-EE relationship. No
particular form of evidence is required. Any
competent and relevant evidence to prove it
may be admitted.
• Company issued identification card;
cash vouchers covering employee’s
salaries (Domasig vs. NLRC)
• registration with the SSS(Flores vs.
Nuestra)
• Taxes withheld on salaries ;
employment contracts, appointment
letters, personnel list; payrolls;
Contribution to Employees Provident Fund
(Equitable Banking Corp. vs. NLRC
and Sadac)
• Memorandum
• Organization charts
• Personnel lists
• Testimony of co-employees
Mode of Compensation, Not a Test of
Employment Status
• The presence or absence of ER-EE
relationship is not determined by the
basis of employee’s compensation.
• Commissions or wage or salary maybe
dependent on the hours of work spent,
quality or quantity of work done as well
as skill.
• Piece rate, boundary and pakyaw are
merely methods of pay computation and
do not prove whether the payee is an
employee or not.
Existence of Employment Relationship
Determined by Law, Not by Contract
• The existence of ER-EE relationship is
determined by law and it cannot be
negated simply by repudiating it in the
management or employment contract.
The SC decided that ER-EE relationship
exists in the following cases:
 1. Salaried Insurance Agent as employer’s interest and not for the
distinquished from registered agents on purpose of defeating or circumventing the
commission basis (Great pacific Life vs. rights of the employees under special laws or
Judico) under valid agreements.
2. School Teachers (Feati University
vs. Bautista) Independent Contractor; Radio and
3. Jeepney Drivers, Taxi Driver, Barbers Broadcast Talent
(Citizens League vs. Abbas; Jardin vs. Sonza vs. ABS-CBN – The control test is the
NLRC) most important test our courts apply in
4. Piece Rate workers (Makati distinguishing an employee from an
Haberdashery vs. NLRC independent contractor. The greater the
5. Street Hired cargadors supervision and control the hirer exercises,
(Caurdanetaan Piece Workers Union the more likely the worker is deemed an
vs. Laguesma) employee. A radio broadcast specialist who
6. Fisherman serving on various works under minimal supervision is an
capacities for 8 -15 years paid on independent contractor.
commission basis (Ruga vs. NLRC)
7. Workers on movie projects 2. Excluded Employees
(Maraguinot vs. NLRC) 1. government employees governed by
8. Employees of labor union (Bautista CSC rules EXCEPT government
vs. Inciong) employees of government agencies
9. Employees of unregistered association and government corporations
(Orlando Farm Growers vs. NLRC) incorporated under the Corporation
Code
No employment Relationship – Job 2. managerial employees or staff –
contracting or Independent including supervisors
Contractorship 3. field personnel
• An employee is not a contractor; a 4. the employer’s family members who
contractor is not an employee and does depend on him for support
not enjoy an employee’s rights. 5. domestic helpers and persons in the
• A contractor is self-employed or an personal service of another
employer to others. 6. workers paid by results as determined
• While ER-EE relationship exists under DOLE regulations
between a job contractor and the
workers that he hires, no such Managerial Employees or Staff
relationship exists between those workers IRR Book III Rule I
and the job contractee, the contractor’s SECTION 2. Exemption. — b. Managerial
client. employees, if they meet all of the following
• Labor-only contracting is prohibited. conditions:
ER-EE relationship exists between the 1. Their primary duty consists of
workers and the enterprise to which they the management of the establishment
are supplied. in which they are employed or of a
department or sub-division thereof.
General Right of Employer Over 2. They customarily and regularly
Conditions of Employment direct the work of two or more
San Miguel vs. Ople – An employer is employees therein.
free to regulate, according to his own 3. They have the authority to hire
discretion and judgment, all aspects of or fire employees of lower rank; or their
employment, including hiring, work suggestions and recommendations as to
assignments, working methods, time, place hiring and firing and as to the promotion
and manner of work, tools to be used, or any other change of status of other
processes to be followed, supervision of employees, are given particular weight.
workers, dismissal and recall of workers so
long as the they are exercised in good c. Officers or members of a managerial staff
faith for the advancement of the if they perform the following duties and
responsibilities:
 1. The primary duty consists of the
performance of work directly related to
management policies of their employer;
2. Customarily and regularly
exercise discretion and independent
judgment; and
3. (i) Regularly and directly assist
a proprietor or a managerial employee
whose primary duty consists of the
management of the establishment in
which he is employed or subdivision
thereof; or (ii) execute under general
supervision work along specialized or
technical lines requiring special training,
experience, or knowledge; or (iii)
execute, under general supervision,
special assignments and tasks; and
4. Who do not devote more than
20 percent of their hours worked in a
work week to activities which are not
directly and closely related to the
performance of the work described in
paragraphs (1), (2) and (3) above.
• Managerial employees and other
officers or members of the managerial
staff are excluded from the coverage of
Articles 82 to 96.
• Supervisors, like managers are
excluded from their coverage.
• A shift engineer/foreman/boiler head
may be considered a member of the
managerial staff.
Outside or Field Sales Personnel
IRR Book III Rule I
SECTION 2. Exemption. — f. Non-
agricultural field personnel if they regularly
perform their duties away from the principal
or branch office or place of business of the
employer and whose actual hours of work in
the field cannot be determined with
reasonable certainty.
• Excluded also from Articles 82 to 96
coverage
• Gen. Rule: field personnel” are those
whose performance of their job/service is
not supervised by the employer or his
representative, the workplace being away
from the principal office and whose hours
and days of work cannot be determined
with reasonable certainty; hence, they
are paid specific amount for rendering
specific service or performing specific
work.
• If required to be at specific places at
specific times, employees including
drivers cannot be said to be field
personnel despite the fact they are
performing work away from the principal
office of the employee.
• The phrase “whose actual hours of
work in field cannot be determined with
reasonable certainty” in Art. 82 must be
read in conjunction with Rule IV, Book III
of the IRR which provides:
Section 1. Coverage – This rule shall apply
to all employees except: x x x
(e) Field personnel and other employees
whose time and performance is
unsupervised by the employer
• In deciding WON the employee’s
actual working hours in the field can be
determined with reasonable certainty,
query must be made as to WON such
employee’s time and performance is
constantly supervised by the employer.
• If usage of work hours are supervised
the employee is not a field personnel.
Domestic Helpers and Persons
Rendering Personal Service
IRR Book III Rule I
SECTION 2. Exemption. — d. Domestic
servants and persons in the personal service
of another if they perform such services in
the employer's home which are usually
necessary or desirable for the maintenance
and enjoyment thereof, or minister to the
personal comfort, convenience, or safety of
the employer as well as the members of his
employer's household.
Cadiz vs. Philippine Sinter Corp. – House
personnel hired by a ranking company
official but paid for by the company itself, to
maintain a staff house provided for the
official, are not the latter’s domestic helper
but regular employees of the company.
Villa vs. Zaragosa – A family cook who is
later assigned as a watcher and cleaner of
the employer’s business establishment
becomes an industrial worker.
Rosales vs. Tan – Waiters of a hotel does
not fall under the term “domestic servants
and persons in the personal service of
another.”
Workers Paid by Result
IRR Book III Rule I
SECTION 2. Exemption. — e. Workers who
are paid by results, including those who are
paid on piece-work, "takay," "pakiao" or task
basis, and other non-time work if their output
rates are in accordance with the standards
prescribed under Section 8, Rule VII, Book
Three of these regulations, or where such
rates have been fixed by the Secretary of
Labor and Employment in accordance with
the aforesaid Section.
3. Hours Worked
a. Coverage – Art. 82
b. Normal Hours of Work
ARTICLE 83. Normal hours of work. – The
normal hours of work of any employee
shall not exceed eight (8) hours a day.
Health personnel in cities and
municipalities with a population of at least
one million (1,000,000) or in hospitals and
clinics with a bed capacity of at least one
hundred (100) shall hold regular office hours
for eight (8) hours a day, for five (5)
days a week, exclusive of time for meals,
EXCEPT where the exigencies of the service
require that such personnel work for six (6)
days or forty-eight (48) hours, in which case,
they shall be entitled to an additional
compensation of at least thirty percent
(30%) of their regular wage for work on
the sixth day. For purposes of this Article,
“health personnel” shall include resident
physicians, nurses, nutritionists, dietitians,
pharmacists, social workers, laboratory
technicians, paramedical technicians,
psychologists, midwives, attendants and all
other hospital or clinic personnel.
• 8-Hour Labor Law was enacted not
only to safeguard the health and welfare
of the laborer or employee, but in a way
to minimize unemployment by forcing
employers, in cases of more than 8-hour
operation is necessary, to utilize different
shifts of laborers or employees working
only for 8 hours each.
• Part-time work or a day’s work of less
than 8 hours is not prohibited.
• Health personnel covered by the 40-
hour work week shall include, but not
limited to, resident physicians, nurses,
nutritionists, dieticians, pharmacists,
social workers, laboratory technicians
paramedical technicians, psychologists,
midwives, and attendants. Medical
secretaries are also considered clinic
personnel.
c. Hours Worked
ARTICLE 84. Hours worked. – Hours
worked shall include
a. all time during which an employee is
required to be on duty or to be at a
prescribed workplace; and
b. all time during which an employee is
suffered or permitted to work.
Rest periods of short duration during
working hours shall be counted as hours
worked.
IRR Book III Rule I (MEMORIZE AND
MASTER)
SECTION 3. Hours worked. — The
following shall be considered as
compensable hours worked:
a. All time during which an
employee is required to be on duty or to
be at the employer's premises or to be
at a prescribed work place; and
b. All time during which an
employee is suffered or permitted to
work.
SECTION 4. Principles in determining
hours worked. — The following general
principles shall govern in determining
whether the time spent by an employee is
considered hours worked for purposes of this
Rule:
a. All hours are hours worked
which the employee is required to give
his employer, regardless of whether or
not such hours are spent in productive
labor or involve physical or mental
exertion.
b. An employee need not leave the
premises of the work place in order that
his rest period shall not be counted, it
being enough that he stops working,
may rest completely and may leave his
work place, to go elsewhere, whether
within or outside the premises of his
work place.
c. If the work performed was
necessary, or it benefited the employer,
or the employee could not abandon his
work at the end of his normal working
 hours because he had no replacement,
all time spent for such work shall be
considered as hours worked, if the work
was with the knowledge of his employer
or immediate supervisor.
d. The time during which an
employee is inactive by reason of
interruptions in his work beyond his
control shall be considered working time
either if the imminence of the
resumption of work requires the
employee's presence at the place of
work or if the interval is too brief to be
utilized effectively and gainfully in the
employee's own interest.
Preliminary Activities
• Preliminary and postliminary activities
are deemed performed during working
hours, where such activities are
controlled or required by the employer
and are pursued necessarily for the
employer’s benefit.
Waiting Time
SECTION 5. Waiting time. —
1. Waiting time spent by an employee
shall be considered as working time if
o waiting is an integral part of
his work or
o the employee is required or
engaged by the employer to wait.
2. An employee who is required to
remain on call in the employer's
premises or so close thereto that he
cannot use the time effectively and
gainfully for his own purpose shall be
considered as working while on call.
An employee who is not required to leave
word at his home or with company
officials where he may be reached is not
working while on call.
• In determining whether waiting time
constitutes working time, the controlling
factor is whether waiting time spent in
idleness is so spent predominantly for the
employer’s benefit or for the employees.
• Waiting time spent by an employee
shall be considered as working time if
waiting is considered an integral part of
his work or if the employee is required or
engaged by an employer to wait.
Working While Eating
• Not compensable if employee is
completely freed from duties even though
he remains in the workplace.
• Employee is not relieved if he is
required to perform his duties whether
active or inactive, while eating.
Working While Sleeping
• may be considered working if it is
subject to interruption or takes place
under conditions substantially less
desirable than would likely to exist at
employee’s home
“On Call”
• compensable
• An employee who is required to
remain on call on the employer’s
premises or so close thereto that he
cannot use the time effectively for his
own purposes is working while “on call”.
(Pan American vs. Pan American)
• “within reach through cellphone or
other contact device” is not “on call” and
thus not compensable
c1. Travel Time
Rule: Time spent traveling to or from the
place of work “may or may not” be
considered working time. It depends upon
the kind of travel involved.
Factors to Consider WON Travel is to be
Working Time:
1. Whether the employee is bound to
travel in conveyance furnished by the
employer or is free to choose his
conveyance
2. WON during the travel, he is subject to
the employer’s supervision and control
3. WON the travel takes place under
vexing and dangerous conditions
Kinds of Travel
1. Travel from home to work. – going
to or from the workplace
Gen. Rule: not worktime,
Exception: When an employee receives
an emergency call outside of his regular
working hours and is required to travel to
his regular place of business or some
other work site, all of the time spent in
such travel is working time.
 2. Travel that is all in the day’s
work. – Time spent by an employee in
travel as part of his principal activity,
(e.g. travel form jobsite to jobsite during
the workday)
Gen. Rule: must be counted as hours
worked (even if beyond the 8-5 working
hours)
Exception: If the employee goes home
instead of returning to his employer’s
premises, that would be travel to work
and is not work time
3. Travel away from home. – Travel
that keeps an employee away from home
overnight
Gen. Rule: Work time when it cuts across
or coincides with the employee’s regular
working hours.
NOTE: AWAY FROM HOME and not BACK
c2. Lectures, meetings, training
programs
SECTION 6. Lectures, meetings, training
programs. — Attendance at lectures,
meetings, training programs, and other
similar activities shall not be counted as
working time if all of the following conditions
are met:
a. Attendance is outside of the
employee's regular working
hours;
b. Attendance is in fact voluntary;
and
c. The employee does not perform
any productive work during such
attendance.
PRISCO vs. CIR – Services rendered outside
of the regular working hours partake the
nature of overtime work.
c3. Semestral break
• Semestral breaks may be considered
as “hours worked” under the IRR of the
Labor Code and that regular professors
and full-time teachers are entitled to
salary and emergency cost-of-living
allowance during semestral break, their
“absence” from work not being of their
own will.
c4. Work Hours of Seamen
Luzon Stevedoring vs. Luzon Marine
Dept. – A laborer need not leave the
premises of the boat in order that his period
of rest shall not be counted, it being enough
that he “ceases to work,” may rest
completely and leave or may leave at his will
the spot where he actually stays while
working, to go somewhere else, whether
within or outside the premises of said
factory, shop or boat. If these requisites are
complied with, the period of such rest shall
not be counted.
National Shipyards and Steel vs. CIR –
The correct criterion in determining WON
sailors are entitled to overtime pay is not,
whether they are on board and cannot leave
ship beyond the regular 8 working hours a
day, but whether they actually rendered
service in excess of said number of hours.
Hours Worked: Evidence and Doubt
When an employer alleges that his employee
works less than normal hours of employment
as provided for in the law, he bears the
burden of proving his allegation with clear
and satisfactory evidence.
d. Meal Periods
ARTICLE 85. Meal periods. – Subject to
such regulations as the Secretary of Labor
may prescribe, it shall be the duty of every
employer to give his employees not less than
sixty (60) minutes time-off for their regular
meals.
Note: Meal periods may shorter than one
hour but not lesser than 20 minutes (1-19
minutes, it must be compensable)
Gen. Rule: Meal time is not compensable
Exception: where it is predominantly spent
for employer’s benefit or where it is less than
60 minutes (but in no case shall it be shorter
than 20 minutes)
Continuous Shifts – the meal time breaks
should be counted as working time for
purposes of overtime compensation.
Meal Time of Less Than 60 Minutes
o The meal period should be not less
than 60 minutes, it is time-off or
noncompensable time.
o IRR Sec. 7, Rule I, Book III allow the
meal time to be less than 60 minutes,
under specified cases and in no case
shorter than 20 minutes.
 o To shorten meal time to less than 20
minutes is not allowed otherwise it
becomes only a rest period and is
considered working time.
IRR Book III Rule I
SECTION 7. Meal and Rest Periods. —
Every employer shall give his employees,
regardless of sex, not less than one (1) hour
time-off for regular meals, except in the
following cases when a meal period of not
less than twenty (20) minutes may be given
by the employer provided that such shorter
meal period is credited as compensable
hours worked of the employee:
a. Where the work is non-manual work in
nature or does not involve strenuous
physical exertion;
b. Where the establishment regularly
operates not less than sixteen (16)
hours a day;
c. In case of actual or impending
emergencies or there is urgent work to
be performed on machineries,
equipment or installations to avoid
serious loss which the employer would
otherwise suffer; and
d. Where the work is necessary to
prevent serious loss of perishable
goods.
Rest periods or coffee breaks running from
five (5) to twenty (20) minutes shall be
considered as compensable working time.
Shortened meal break upon employee’s
request
• Employees themselves may request
that their meal period be shortened so
that they can leave work earlier than the
previously established schedule. In such a
situation, the shortened meal period is
not compensable.
• The DOLE in allowing such
arrangement, imposes, however, certain
conditions, namely:
1. The employees voluntarily agree in
writing to a shortened meal period of
thirty minutes and are willing to waive
the overtime pay for such shortened
meal period;
2. There will be no diminution
whatsoever in the salary and other
fringe benefits of the employees
existing before the effectivity of the
shortened meal period;
3. The work of the employees does not
involve strenuous physical exertion
and they are provided with adequate
“coffee breaks” in the morning and
afternoon;
4. The value of the benefits derived by
the employees from the proposed
work arrangement is equal to or
commensurate with the compensation
due them for the shortened meal
period as well as the overtime pay for
30 minutes as determined by the
employees concerned;
5. The overtime pay of the employees
will become due and demandable if
ever they are permitted or made to
work beyond 4:30 p.m.; and
6. The effectivity of the proposed
working time arrangement shall be of
temporary duration as determined by
the Secretary of Labor and
Employment.
Changing Lunch Break From Paid to
Unpaid
Sime Darby Pilipinas vs. NLRC –
Management is free to regulate, according to
its own discretion and judgment, all aspects
of employment. It retains the prerogative,
whenever exigencies of the service so
require, to change the working hours of its
employees. So long as such prerogative is
exercised in good faith for the advancement
of the employer’s interest and not for the
purpose of defeating or circumventing the
rights of the employees under special laws or
under valid agreements, this Court will
uphold such exercise.
The new work schedule fully complies
with the daily work period of eight (8) hours
without violating the labor Code. Besides, the
new schedule applies to all employees in the
factory similarly situated, whether they are
union members or not.
e. Night Shift Differential
ARTICLE 86. Night shift differential. –
Every employee shall be paid a night shift
differential of not less than ten percent
(10%) of his regular wage for each hour of
work performed between ten o’clock in the
evening and
six o’clock in the morning.
Note: Night shift differential is 10%. Time:
10 pm -6 am

Rationale of Night Shift Differential
Shell Company vs. National Labor Union
– The additional compensation of night shift
differential recognizes the universal fact that
regular, normal and ordinary work is that
performed during the day, and that work
done at night is very exceptional and
justified only on grounds of inevitable
necessity. When there is no other alternative
but to perform night work. It is but just that
the worker should earn a greater pay than
for ordinary work to compensate him to
some extent for the inconvenience.
Naric vs. Naric – When the tour of duty of a
laborer falls at nighttime [between 10:00 PM
and 6:00 AM], the receipt of overtime pay
will not preclude the right to night
differential pay. The latter is payment for
work done during the night while the other
payment for the excess of the regular eight-
hour work.
• If overtime work falls within the period
covered by night differential , premiums
for overtime work should first be
integrated into the regular hourly rate of
the employee before computing night
shift pay
Night Shift Differential Not Waivable
Mercury Drug vs. Dayao – Additional
compensation for nighttime work is founded
on public policy, hence the same cannot be
waived.
Burden of Proof of Payment
• the employer who has custody of
pertinent documents that can prove the
fact of payment has the burden of
proving a claim for night shift differential
pay (National Semiconductor (HK)
Distribution, Ltd. vs. NLRC and
Santos)
• The burden of proving that payment of
such benefit has been made rests upon
the party who will suffer if no evidence at
all presented by either party. (Seaborne
Carriers Corporation vs. NLRC)
f. Overtime Work
ARTICLE 87. Overtime work. – Work may
be performed beyond eight (8) hours a day
provided that the employee is paid for the
overtime work, an additional compensation
equivalent to his regular wage plus at least
twenty-five percent (25%) thereof. Work
performed beyond eight hours on a holiday
or rest day shall be paid an additional
compensation equivalent to the rate of the
first eight hours on a holiday or rest day plus
at least thirty percent (30%) thereof.
Note: rate of overtime pay for a
regular day – 25%
rate of overtime pay for a holiday –
30%
Overtime Pay – Compensation for work
rendered in excess of 8 hours a day
• Overtime pay is computed by
multiplying the overtime hourly rate by
the number of hours worked in excess of
8. (National Shipyards and Steel
Corp. vs. CIR)
Rationale
• The additional time to his work has
many effects, he puts in more effort,
physical and/or mental; he is delayed in
going home to his family; he might have
no time for relaxation; he might miss
important pre-arranged engagements
which justify for the extra compensation
of overtime pay. (PNB vs. PEMA)
Naric vs. Naric Workers Union – Receipt
of overtime pay does not preclude right to
NSD.
Overtime Rate Based on Regular Wage
• The term “regular base pay” excludes
money received in different concepts
such as Christmas bonus and other fringe
benefits. (Bisig ng Manggagawa vs.
Philippine Refining Co. )
• In the computation of overtime pay,
the premium pay for work done on
Sundays, holidays and at night and other
fringe benefits which are occasionally and
not ruglarly, received and not by all
employees, should not be added to the
basic pay. (Caltex vs. CIR)
Premium Pay; When Included or
Excluded in Computing Overtime Pay
• Unless there is an agreement more
favorable to the worker, the overtime rate
for is 30% of the rate for the 1st 8 hours
on a holiday or rest day. Thus, the holiday
 or rest day premium should first be added
to the regular base pay before computing
the overtime pay on such day.
CBA May Stipulate Higher Overtime Pay
Rate
PNB vs. PEMA – The basis of computation
of overtime pay beyond that is required by
Art. 87 must be the CBA.
Conversion of Monthly to Daily Rate;
Actual Work Days as Divisor
PALEA vs. PAL – The divisor in computing
an employee’s basic daily rate should be the
actual working days in a year. The number of
offdays are not to be counted precisely
because on such offdays, an employee is
not required to work.
How “Work Day” is Counted
• A day is understood to be the 24-hour
period which commences from the time
the employee regularly starts to work
• Work in excess of 8 hours w/n a work
day is considered as overtime regardless
of whether this is performed in a work
shift other than at which employee
regularly works (National Dev. Vs. CIR)
Factual and Legal Basis of Claim
• An express instruction from the
employer to the employee to render
overtime pay is not required. It is
sufficient that the employee is permitted
to work.
• Neither is an express approval by a
superior a prerequisite to make overtime
work compensable. In the case of Manila
Railroad Co. vs. CIR the Court held
that :
If the work performed was necessary,
or that it benefited the company or that
the employee could not abandon his work
at the end of his eight hour work because
there was no substitute ready to take his
place and he performed overtime services
upon the order of his immediate superior,
notwithstanding the fact that there was a
standing circular to the effect that before
overtime work may be performed with
pay, the approval of the corresponding
department head should be secured, such
overtime services are compensable in
spite of the fact that said overtime
services were rendered without the prior
approval of the Department Head.
(Reotan vs. National Rice and Corn
Corp.)
• However, there are decisions that
during Sundays and Holidays, written
authority is needed for overtime work
(Global Inc., vs. Atienza)
• Neither is overtime claim justified for
days where no work was required and no
work could be done by employees on
account of shutdown due to electrical
power interruptions, machine repair and
lack of raw materials. (Durabuilt vs.
NLRC)
• Sundays and holidays cannot be
considered as workdays in the
computation of overtime compensation of
the crew members of a vessel merely on
the allegation that being on board a
vessel on these days was “part and parcel
of” and “inherent” in their work. (William
Lines vs. Lopez)
Action to Recover Compensation
• Estoppel and laches cannot be invoked
against employees in an action for the
recovery of compensation for past
overtime work.
• Overtime pay in arrears retroacts to
the date when services were actually
rendered.
Waiver or Quitclaim
Gen. Rule: NO waiver or quitclaim of
overtime pay
Exception: waiver is in exchange for certain
benefits
Overtime Pay Integrated in Basic Salary
• Agreement that overtime pay will be
integrated in basic salary is not per se
illegal; however, there should have been
express agreement to that effect and that
the mathematical result shows that the
agreed legal wage rate and the overtime
pay, computed separately, are equal to or
higher than the separate amounts legally
due
Compressed Work Week (45 hours in 5
days)
• Another exception to the non-waiver
of overtime pay
• Under this scheme the number of work
days is reduced but the number of work
 hours in a day is increased to more than
8, but no overtime pay maybe claimed.
f1. Undertime vs. Overtime
ARTICLE 88. Undertime not offset by
overtime. – Undertime work on any
particular day shall not be offset by overtime
work on any other day. Permission given to
the employee to go on leave on some other
day of the week shall not exempt the
employer from paying the additional
compensation required in this Chapter.
NWSA vs. NWSA Consolidated Unions &
Sto. Domingo vs. Phil. Rock Products –
Where a worker incurs undertime hours
during his regular daily work said undertime
hours should not be offset against the
overtime hours.The proper method should be
to deduct the undertime hours from the
accrued leave but to pay the employee the
overtime compensation to which he is
entitled. Where the employee has exhausted
his leave credits, his unertime may simply be
deducted from his day’s wage, but he should
still be paid his overtime compensation for
work in excess of 8 hours a day.
f2. Emergency Overtime Work
ARTICLE 89. Emergency overtime work.
– Any employee may be required by the
employer to perform overtime work in any of
the following cases:
a. When the country is at war or when
any other national or local emergency
has been declared by the National
Assembly (Congress) or the Chief
Executive;
b. When it is necessary to prevent loss of
life or property or in case of imminent
danger to public safety due to an
actual or impending emergency in the
locality caused by serious accidents,
fire, flood, typhoon, earthquake,
epidemic, or other disaster or
calamity;
c. When there is urgent work to be
performed on machines, installations,
or equipment, in order to avoid serious
loss or damage to the employer or
some other cause of similar nature;
d. When the work is necessary to prevent
loss or damage to perishable goods;
and
e. Where the completion or continuation
of the work started before the eighth
hour is necessary to prevent serious
obstruction or prejudice to the
business or operations of the
employer.
Any employee required to render
overtime work under this Article shall be paid
the additional compensation required in this
Chapter.
Other Instance mentioned in the IRR
Book III Rule I
SECTION 10. Compulsory overtime
work. —
f. When overtime work is necessary to
avail of favorable weather or
environmental conditions where
performance or quality of work is
dependent thereon.
In cases not falling within any of these
enumerated in this Section, no employee
may be made to work beyond eight hours a
day against his will.
f3. Computation
ARTICLE 90. Computation of additional
compensation. – For purposes of computing
overtime and other additional remuneration
as required by this Chapter, the “regular
wage” of an employee shall include the cash
wage only, without deduction on account of
facilities provided by the employer.
g. Validity of Compressed Work Week
MERALCO Workers Union vs. MERALCO
Gen. Rule: The right to overtime pay cannot
be waived however if there is a compressed
workweek proposed same shall be valid if
the following concurring conditions are met:
1. the employees voluntarily
agree to work nine (9) hours a day from
Monday to Friday;
2. that there will not be any
diminution whatsoever in the weekly
or monthly take-home pay and fringe
benefits of the employees;
3. the value of the benefits that
will accrue to the employees under the
proposed work schedule is more than,
or at least commensurate with or
equal to, the one-hour overtime
pay that is due them during weekdays
based on the employees’ quantification
4. the one-hour overtime pay of
the employees will become due and
demandable if ever they are permitted
or made to work on any Saturday during
 the effectivity of the new working time
arrangement, since the agreement
between the employees and
management is that there will be no
Saturday work in exchange for a longer
workday during weekdays;
5. the work of the employees
does not involve strenuous physical
exertion and they are provided with
adequate rest periods or “coffee
breaks” in the morning and afternoon;
and
6. the effectivity of the proposed
working time arrangement shall be of
temporary duration as determined by
the Minister of Labor and Employment.
DEPARTMENT ADVISORY No. 2 Series of
2009
Guidelines on the Adoption of Flexible
Work Arrangements (FWAs)
I .Purpose – to assist and guide ERs and EEs
in the implementation of various FWAs as
one of the coping mechanisms and remedial
measures in times of economic difficulties
and national emergencies. Adoption of
FWAs is considered as better
alternative than the outright
termination of the services of the
employees or the total closure of the
establishments. Anchored on voluntary
basis and conditions mutually acceptable to
both the ER and EEs, it is recognized as
beneficial in terms of reduction of
business costs and helps in saving jobs
while maintaining competitiveness and
productivity in industries.
II. Concept – The Dept. recognizes the
desirability and practicality of FWAs that may
be considered by ERs after consultation with
the EEs, taking into account the adverse
consequence of the situation on the
performance and financial condition of the
company.
Flexible work arrangements refer to
alternative arrangements or schedules
other than the traditional or standard
work hours, workdays and workweek.
The effectivity and implementation of any
of the FWAs provided herein shall be
temporary in nature.
III. Flexible Work Arrangements
The following are the FWAs which labor and
management may consider:
1. Compressed Workweek
wherein the normal workweek is
reduced to less than 6 days but the total
number of work hours of 48 hours per
week shall remain. The normal workday
is increased to more than 8 hours but
not to exceed 12 hours, without
corresponding overtime premium. The
concept can be adjusted accordingly
depending on the normal workweek of
the company pursuant to the provisions
of Dept. Advisory No. 02, series of 2004,
dated Dec. 2, 2004.
2. Reduction of Workdays
wherein the normal workdays per week
are reduced but should not last for more
than 6 months.
3. Rotation of Workers wherein
the employees are rotated or
alternately provided work within the
workweek.
4. Forced Leave wherein the
employees are required to go on leave
for several days or weeks utilizing their
leave credits if there are any.
5. Broken-time schedule
wherein the work schedule is not
continuous but the work hours within
the day or week remain.
6. Flexi-holidays schedule
wherein the employees agree to avail
the holidays at some other days
provided there is no diminution of
existing benefits as a result of such
arrangement.
Under these FWAs, the ERs and the EEs
are encouraged to explore alternative
schemes under any agreement and company
policy or practice in order to cushion and
negate the effect of the loss of income of the
EEs.
IV. Administration of Flexible Work
Arrangements
The parties to the flexible work
schemes shall be primarily responsible
for its administration. In case of difference
of interpretation, the following guidelines
shall be observed:
1. The difference shall be treated as
grievances under the applicable
grievance mechanism of the company.
2. If there is no grievance mechanism or
if this mechanism is inadequate, the
grievance shall be referred to the Reg.
 Office which has jurisdiction over the
workplace for appropriate conciliation.
3. To facilitate the resolution of
grievances, employers are required to
keep and maintain, as part of their
records, the documentary
requirements proving that the flexible
work arrangement was voluntarily
adopted.
V. Notice Requirement
Prior to its implementation, the ER shall
notify the Dept. through the Regional Office
which has jurisdiction over the workplace, of
the adoption of any of the above FWAs. The
notice shall be in the Report Form attached
to this advisory.
The Regional Office shall conduct an
ocular visit to validate whether the adoption
of the FWAs is in accordance with this
issuance.
4. Weekly Rest Periods
a. Coverage
ARTICLE 91. Right to weekly rest day. –
a. It shall be the duty of every employer,
whether operating for profit or not, to
provide each of his employees a rest
period of not less than twenty-four
(24) consecutive hours after every
six (6) consecutive normal work
days.
b. The employer shall determine and
schedule the weekly rest day of his
employees subject to collective
bargaining agreement and to such rules
and regulations as the Secretary of Labor
and Employment may provide. However,
the employer shall respect the
preference of employees as to their
weekly rest day when such preference
is based on religious grounds.
IRR Book III Rule III
SECTION 1. General statement on
coverage. — This Rule shall apply to all
employers whether operating for profit or
not, including public utilities operated by
private persons.
b. Employee Preference
IRR Book III Rule III
SECTION 4. Preference of employee. —
The preference of the employee as to his
weekly day of rest shall be respected by the
employer if the same is based on religious
grounds. The employee shall make known
his preference to the employer in writing at
least seven (7) days before the desired
effectivity of the initial rest day so preferred.
Where, however, the choice of the
employee as to his rest day based on
religious grounds will inevitably result in
serious prejudice or obstruction to the
operations of the undertaking and the
employer cannot normally be expected to
resort to other remedial measures, the
employer may so schedule the weekly rest
day of his choice for at least two (2) days in a
month.
Gen. Rule: Employees preference must be
respected by employer.
Exception: If such preference is so serious
as it will prejudice or maybe an obstruction
to the operation of the business, then,
employer may schedule the rest day for at
least 2 days in a month according to the
preference of the employee.
c. Work on a Rest Day
ARTICLE 92. When employer may
require work on a rest day. – The
employer may require his employees to work
on any day: (EUAPNO) (MEMORIZE)
a. In case of actual or impending
Emergencies caused by serious
accident, fire, flood, typhoon,
earthquake, epidemic or other disaster
or calamity to prevent loss of life and
property, or imminent danger to public
safety;
b. In cases of Urgent work to be
performed on the machinery,
equipment, or installation, to avoid
serious loss which the employer would
otherwise suffer;
c. In the event of Abnormal pressure
of work due to special circumstances,
where the employer cannot ordinarily
be expected to resort to other
measures;
d. To Prevent loss or damage to
perishable goods;
e. Where the Nature of the work
requires continuous operations and
the stoppage of work may result in
irreparable injury or loss to the
employer; and
f. Under Other circumstances
analogous or similar to the foregoing
 as determined by the Secretary of
Labor and Employment.
IRR Book III Rule III
SECTION 6. When work on rest day
authorized. — An employer may require
any of his employees to work on his
scheduled rest day for the duration of the
following emergencies and exceptional
conditions:
a. In case of actual or impending
emergencies caused by serious
accident, fire, flood, typhoon,
earthquake, epidemic or other disaster
or calamity, to prevent loss of life or
property, or in cases of force majeure or
imminent danger to public safety;
b. In case of urgent work to be
performed on machineries, equipment
or installations to avoid serious loss
which the employer would otherwise
suffer;
c. In the event of abnormal
pressure of work due to special
circumstances, where the employer
cannot ordinarily be expected to resort
to other measures;
d. To prevent serious loss of
perishable goods;
e. Where the nature of the work is
such that the employees have to work
continuously for seven (7) days in a
week or more, as in the case of the crew
members of a vessel to complete a
voyage and in other similar cases; and
f. When the work is necessary to avail of
favorable weather or environmental
conditions where performance or quality
of work is dependent thereon.
No employee shall be required against his
will to work on his scheduled rest day except
under circumstances provided in this
Section: Provided, However, that where an
employee volunteers to work on his rest day
under other circumstances, he shall express
such desire in writing, subject to the
provisions of Section 7 hereof regarding
additional compensation.
d. Compensation for Rest Day
ARTICLE 93. Compensation for rest day,
Sunday or holiday work. - (a) Where an
employee is made or permitted to work on
his scheduled rest day, he shall be paid an
additional compensation of at least thirty
percent (30%) of his regular wage. An
employee shall be entitled to such additional
compensation for work performed on Sunday
only when it is his established rest day.
Premium Pay; Rest Day
• For work done on a rest day the
employer must pay the employee:
1. His regular remuneration or
100%
2. Premium pay which is an
additional sum of at least 30% of the
regular wage.
e. Compensation for Sunday
ARTICLE 93. Compensation for rest day,
Sunday or holiday work. (b) When the
nature of the work of the employee is such
that he has no regular workdays and no
regular rest days can be scheduled, he shall
be paid an additional compensation of at
least thirty percent (30%) of his regular wage
for work performed on Sundays and holidays.
• Sunday work entails premium pay only
if it is the employee’s rest day.
f. Compensation for Special Day
ARTICLE 93. Compensation for rest day,
Sunday or holiday work. (c) Work
performed on any special holiday shall be
paid an additional compensation of at least
thirty percent (30%) of the regular wage of
the employee. Where such holiday work falls
on the employees scheduled rest day, he
shall be entitled to an additional
compensation of at least fifty per cent (50%)
of his regular wage.
Special Holidays/Days (NAL) (MEMORIZE)
1. Ninoy Aquino Day – August 21
2. Alls Saints Day – November 1
3. Last Day of the Year – December 31
5. Regular Holidays
E.O. 203 and RA 9177 (NMAGLINEBCR)
(MEMORIZE)
1. New Year’s Day – January 1
2. Maundy Thursday – movable date
3. Good Friday – movable date
4. Araw ng Kagitingan – April 9
5. Labor Day – May 1
6. Independence Day – June 12
7. National Heroes Day – Last Sunday of
August
8. Eid’l Fitr – movable date
9. Bonifacio Day – November 30
10.Christmas Day – December 25
 11.Rizal Day –December 30 • The purpose of holiday pay is to
prevent diminution of the monthly income
of the workers on account of work
a. Coverage interruptions declared by the state.
IRR Book III Rule IV • But to receive holiday pay, certain
SECTION 1. Coverage. — This rule shall conditions must be met. One of which is
apply to all employees EXCEPT: that the employee should not have been
a. Those of the government and absent without pay on the working day
any of the political subdivision, including preceding the regular holiday.
government-owned and controlled
corporation; Holiday of a Part-Timer
b. Those of retail and service • If the work is partial, the pay should
establishments regularly employing less also be partial.
than ten (10) workers; • The amount of holiday pay of a part-
c. Domestic helpers and persons timer is to be determined on a case-to-
in the personal service of another; case basis. The basis is any of the
d. Managerial employees as following, whichever yields the highest
defined in Book Three of the Code; amount:
e. Field personnel and other 1. the regular wage per day;
employees whose time and 2. the basic wage on the working day
performance is unsupervised by the preceding the regular holiday if the
employer including those who are employee is present or on leave with
engaged on task or contract basis, pay on the last working day
purely commission basis, or those who immediately prior to the regular
are paid a fixed amount for performing holiday;
work irrespective of the time consumed 3. the average of his basic wages for the
in the performance thereof. last seven working days for employees
who are paid by results; or
b. Holiday Pay 4. the basic wage on the particular
ARTICLE 94. Right to holiday pay. – holiday, if worked.
a. Every worker shall be paid his regular
daily wage during regular holidays, IRR Book III Rule IV
except in retail and service SECTION 4. Compensation for holiday
establishments regularly employing less work. — Any employee who is permitted or
than ten (10) workers; suffered to work on any regular holiday, not
b. The employer may require an exceeding eight (8) hours, shall be paid at
employee to work on any holiday but least two hundred percent (200%) of his
such employee shall be paid a regular daily wage. If the holiday work falls
compensation equivalent to twice his on the scheduled rest day of the employee,
regular rate; and he shall be entitled to an additional premium
c. As used in this Article, “holiday” pay of at least 30% of his regular holiday
includes: New Years Day, Maundy rate of 200% based on his regular wage rate.
Thursday, Good Friday, the ninth of April,
the first of May, the twelfth of June, the Formulas to Compute Wages on
fourth of July, the thirtieth of November, Holidays
the twenty-fifth and thirtieth of December For Regular Holidays:
and the day designated by law for holding A. If it is an employee’s regular work day
a general election.
• If unworked – 100%
• If worked –
• Holiday pay is a one-day pay given to
o 1st 8 hours – 200%
an employee even if he does not work on
o Excess of 8 hours – plus
a regular holiday.
30% of hourly rate on said day
• If a worker comes to work on a regular
B. If it is an employee’s rest day
holiday he earns extra pay equivalent to
• If unworked – 100%
his regular rate.
• If worked –
 o 1st 8 hours – plus 30 % of
200%
o Excess of 8 hours – plus 30% of
hourly rate on said day
For Special Holidays:
A. If unworked –
• No pay, unless there is a
favorable company policy or CBA
granting payment of wages on
special days if unworked.
B. If worked –
• 1st 8 hours – plus 30% of the
daily rate of 100%
• Excess of 8 hours – plus 30% of
hourly rate on said day
C. Falling on an employee’s rest day and
if worked-
• 1st 8 hours – plus 50% of the
daily rate of 100%
• Excess of 8 hours – plus 30% of
hourly rate on said day
For those declared as Special Working
Holidays:
For work performed, an employee is
entitled only to his basic rate. No
premium pay is required since work
performed on said days is considered
work on ordinary working days.
c. Overtime Pay on a Holiday
IRR Book III Rule IV
SECTION 5. Overtime pay for holiday
work. — For work performed in excess of
eight hours on a regular holiday, an
employee shall be paid an additional
compensation for the overtime work
equivalent to his rate for the first eight hours
on such holiday work plus at least 30%
thereof.
Where the regular holiday work
exceeding eight hours falls on the scheduled
rest day of the employee, he shall be paid an
additional compensation for the overtime
work equivalent to his regular holiday-rest
day for the first 8 hours plus 30% thereof.
The regular holiday rest day rate of an
employee shall consist of 200% of his regular
daily wage rate plus 30% thereof.
d. Absences
IRR Book III Rule IV
SECTION 6. Absences. —
a. All covered employees shall be
entitled to the benefit provided herein
when they are on leave of absence with
pay. Employees who are on leave of
absence without pay on the day
immediately preceding a regular holiday
may not be paid the required holiday pay
if he has not worked on such regular
holiday.
b. Employees shall grant the same
percentage of the holiday pay as the
benefit granted by competent authority in
the form of employee's compensation or
social security payment, whichever is
higher, if they are not reporting for work
while on such benefits.
c. Where the day immediately preceding
the holiday is a non-working day in the
establishment or the scheduled rest day
of the employee, he shall not be deemed
to be on leave of absence on that day, in
which case he shall be entitled to the
holiday pay if he worked on the day
immediately preceding the non-working
day or rest day.
Absences on Regular Holiday
Leave of absence Entitled to holiday
with pay premium (100%)
Leave of absence Didn’t work on holiday –
without pay no pay
immediately Worked on holiday – with
preceding regular 200% pay
holiday
A day To avail of holiday
immediately premium, he must work
preceding regular immediately preceding
holiday is non- the non-working
working holiday/ holiday / rest day.
rest day
Note: Two Succeeding Holidays
• Must work the day before the holiday
otherwise not entitled to 100%
unworked holiday pay.
• If absent the day before the 1st holiday
but
o Works during the 1st holiday =
200%
o Works during the 1st Holiday
and unworked on the 2nd holiday =
 200% for the 1st holiday, 100% for
the 2nd holiday.
e. Holiday during Shutdown
IRR Book III Rule IV
SECTION 7. Temporary or periodic
shutdown and temporary cessation of
work. —
a. In cases of temporary or periodic
shutdown and temporary cessation of
work of an establishment, as when a
yearly inventory or when the repair or
cleaning of machineries and equipment is
undertaken, the regular holidays falling
within the period shall be compensated in
accordance with this Rule.
b. The regular holiday during the
cessation of operation of an enterprise
due to business reverses as authorized by
the Secretary of Labor and Employment
may not be paid by the employer.
Summary: Holiday during shutdown – If
it is temporary only, employee must be
compensated. But, if there is a cessation of
the operation, employee may not be paid
due to business reverses/
f. Monthly-paid Employees
Insular Bank of Asia vs. Inciong – Art. 94
of the Labor Code is clear that monthly
paid employees are not excluded from
the benefits of holiday pay. Sec. 2, Rule
IV, Book III of the Implementing Rules and
Policy Instruction No. 9 are null and void
since in the guise of clarifying the Labor
Code’s provision on holiday pay, they in
effect amended them by enlarging the scope
of their exclusion.
Chartered Bank vs. Ople – The divisor
assumes an important role in determining
WON holiday pay is already included in the
monthly-paid employee’s salary and in the
computation of his daily rate.
Union of Filipro Employees vs. Vivar
–Employer cannot claim reimbursement of
overtime pay because the daily rate is still
the same before and after grant of holiday
pay to its monthly-paid employees
– The grant of holiday pay to monthly-paid
employees shall be effective from Oct. 23,
1984, the date of promulgation of the Insular
case.
g. Field Personnel
Union of Filipro Employees vs. Vivar –
Under Art. 82 of the Labor Code, filed
personnel are not entitled to holiday
pay.
h. Private School Teachers
IRR Book III Rule IV
SECTION 8. Holiday pay of certain
employees. —
a. Private school teachers, including
faculty members of colleges and
universities, may not be paid for the
regular holidays during semestral
vacations. They shall, however, be paid
for the regular holidays during Christmas
vacation;
Note: The teachers will be paid for
Christmas vacation on Dec. 25 and 30.
However, the case of Jose Rizal College
shall be controlling over the IRR.
i. Piece-rate Workers
IRR Book III Rule IV
SECTION 8. Holiday pay of certain
employees. —
b. Where a covered employee, is paid by
results or output, such as payment on
piece work, his holiday pay shall not
be less than his average daily
earnings for the last seven (7) actual
working days preceding the regular
holiday; Provided, However, that in no
case shall the holiday pay be less
than the applicable statutory minimum
wage rate.
j. Seasonal Workers
IRR Book III Rule IV
SECTION 8. Holiday pay of certain
employees. —
c. Seasonal workers may not be paid
the required holiday pay during off-
season when they are not at work.
k. Holiday on a Sunday
Wellington vs. Trajano – the SC ruled that
a legal holiday falling on a Sunday creates
no legal obligation for the employer to
pay extra, aside from the usual holiday pay,
to its monthly paid employees.
l. Double Holiday
Double holiday happens when two
REGULAR holidays fall on the same
date. If this happens, the compensation of
the worker shall be 300% if worked and
200% if unworked.
Example: On April 9, 1993, it was the Araw
ng Kagitingan and at the same time a Good
Friday.
Q: Why 300% if worked?
A: 100% on the Araw ng Kagitingan and
another 100% on the Good Friday plus 100%
regular wage. So all in all, the employee shall
receive 300%.
Q: Why 200% if unworked?
A: 100% on the Araw ng Kagitingan and
another 100% on the Good Friday.
6. Service Incentive Leave
ARTICLE 95. Right to service incentive
leave. –
a. Every employee who has rendered at
least one year of service shall be
entitled to a yearly service incentive
leave of five days with pay.
b. This provision shall not apply to
those who are already
• enjoying the benefit herein
provided,
• those enjoying vacation leave
with pay of at least five days and
• those employed in
establishments regularly employing
less than ten employees or
• in establishments exempted
from granting this benefit by the
Secretary of Labor and Employment
after considering the viability or
financial condition of such
establishment.
c. The grant of benefit in excess of that
provided herein shall not be made a
subject of arbitration or any court or
administrative action.
IRR Book III Rule V
SECTION 1. Coverage. — This rule shall
apply to all employees EXCEPT:
a. Those of the government and
any of its political subdivisions,
including government-owned and
controlled corporations;
b. Domestic helpers and persons
in the personal service of another;
c. Managerial employees as
defined in Book Three of this Code;
d. Field personnel and other
employees whose performance is
unsupervised by the employer including
those who are engaged on task or
contract basis, purely commission basis,
or those who are paid a fixed amount
for performing work irrespective of the
time consumed in the performance
thereof;
e. Those who are already enjoying
the benefit herein provided;
f. Those enjoying vacation leave with
pay of at least five days; and
g. Those employed in
establishments regularly employing less
than ten employees.
SECTION 2. Right to service incentive
leave. — Every employee who has
rendered at least one year of service
shall be entitled to a yearly service
incentive leave of five days with pay.
SECTION 3. Definition of certain terms.
— The term "at least one-year service"
shall mean service for not less than 12
months, whether continuous or broken
reckoned from the date the employee
started working, including authorized
absences and paid regular holidays
unless the working days in the
establishment as a matter of practice or
policy, or that provided in the
employment contract is less than 12
months, in which case said period shall
be considered as one year.
Part-Time Workers
• entitled to the full benefit of the yearly
5 days of SIL with pay.
• The availment and commutation of the
same can be proportionate to the daily
work rendered and the regular daily
salary, respectively.
“Contract” Workers
• Teachers of private schools on
contract basis are entitled to service
incentive leave. ( Cebu Institute of
Technology vs. Hon. Blas Ople )
Exception; Burden of Proof
 • It is the employer’s duty, not of the
employees, to prove that there are less
than ten (10) employees in the company.
If it fails to discharge its task, the
employer must be deemed to be covered
by the rule, notwithstanding the
employees’ failure to allege the exact
number of employees of the corporation.
(Murillo, et al. vs. Sun Valley Realty)
Sick Leave and Vacation Leave as
Voluntary Benefits
• While the five-day service incentive
leave is mandatory because it is legally
required, vacation and sick leave are
voluntary.
• The purpose of vacation leave is to
afford to a laborer a chance to get a
much needed rest to replenish his worn
out energies and acquire a new vitality to
enable him to efficiently perform his
duties and not merely to give him
additional salary or bounty. This privilege
must be demanded in its opportune time
and if an employee allows the years to go
by in silence, he waives it. It becomes a
mere concession or act of grace of the
employer. (Cuajao vs. Chua Lo Tan)
• In the administration of the leave
privileges of employees, the employer
may impose certain conditions like for
other voluntary benefits. And in cases of
dispute, the court will resolve the same
by construing the employer’s written
policy on the matter. (Baltazar vs. San
Miguel Brewery, Inc.)
Commutation of Sick Leave
• Sick leave and vacation leave benefits
and their conversion to cash are
voluntary, not statutory, in character.
Entitlement to them must be proved.
IRR Book III Rule V
SECTION 4. Accrual of benefit. —
Entitlement to the benefit provided in this
Rule shall start December 16, 1975, the date
the amendatory provision of the Code took
effect.
SECTION 5. Treatment of benefit. — The
service incentive leave shall be commutable
to its money equivalent if not used or
exhausted at the end of the year.
• The basis of the conversion shall be
the salary rate at the date of
commutation.
SECTION 6. Relation to agreements. —
Nothing in the Rule shall justify an employer
from withdrawing or reducing any benefits,
supplements or payments as provided in
existing individual or collective agreements
or employer's practices or policies.
Paternity Leave
R.A. No. 8187
• It took effect on July 5, 1996, grants
paternity leave of seven days with
full pay to all married male
employees in the private and public
sectors.
• It available only for the first four
deliveries of the legitimate spouse
with whom the husband is
cohabiting, that is, the husband and the
wife must be living together.
• “Delivery” includes childbirth,
miscarriage or abortion.
• The purpose of paternity leave is to
enable the husband to lend support to his
wife during the period of recovery and/or
in the nursing of the newly born child.
Revised Implementing Rules and
Regulations of R.A. No. 8187 for the
Private Sector
Section 3. Conditions to entitlement of
paternity leave benefits. – A married male
employee shall be entitled to paternity
benefits provided that:
a. he is an employee at the time
of delivery of his child;
b. he is cohabiting with his
spouse at the time she gives birth or
suffers a miscarriage;
c. he has applied for paternity
leave in accordance with Section 4
hereof; and
d. his wife has given birth or
suffered a miscarriage.
Section 4. Application of leave. – The
married male employee shall apply for
paternity leave with his employer within a
reasonable period of time from the
expected date of delivery by the pregnant
spouse, or within such period as may be
provided by company rules and regulations
or by collective bargaining agreement;
provided that prior application for leave
shall not be required in case of
miscarriage.
Section 5. Availment. – Paternity leave
benefits shall be granted to the qualified
employee after the delivery by his wife,
without prejudice to an employer allowing an
employee to avail of the benefit before or
during the delivery; provided, that the
total number of days shall not exceed
seven (7) days for each delivery.
Section 6. Benefits. – The employee is
entitled to his full pay, consisting of
basic salary, for the seven (7) days
during which he is allowed not to report
for work; provided, that his pay shall not be
less than the mandated minimum wage.
Section 7. Non-commutation of
benefits. – In the event that the paternity
leave benefit is not availed of, said leave
shall not be convertible to cash.
Section 8. Non-diminution clause. –
Nothing in these Rules shall be construed to
reduce or replace any existing benefits of
any kind granted under existing laws,
decrees, executive orders, or any contract,
agreement or policy between employer and
employee.
Section 9. Crediting of existing
benefits. – Where a male employee is
already enjoying the paternity leave benefits
by reason of contract, company policy or
collective bargaining agreement, the
following rules shall apply:
a. If the existing paternity leave
benefit is greater than the benefit
herein provided, the greater benefit
shall prevail;
b. If the existing paternity leave is
less than that provided herein, such
existing benefit shall be adjusted to
the extent of the difference.
However, where a contract, company
policy or collective bargaining agreement
provides for an emergency or contingency
leave without specific provisions on paternity
leave, the paternity leave as herein provided
shall apply in full.
Parental (Solo Parent) Leave
R.A. No. 8972 - Solo Parents’ Welfare
Act of 2000
• took effect on November 28, 2000.
Section 8. Parental Leave – In addition to
leave privileges under existing laws, parental
leave of not more than seven (7) working
days every year shall be granted to any solo
parent employee who has rendered service
of at least one (1) year.
• The seven-day parental leave shall be
non-cumulative.
• A solo parent is entitled to the
parental leave if the following conditions
are met:
a. He/She has rendered at least one
(1) year of service whether
continuous or broken at the time of
the effectivity of the Act;
b. He/She notified his/her employer of
the availment thereof within a
reasonable time period; and
c. He/She has presented a Solo
Parent Identification Card to his/her
employer.
• Unutilized parental leave is not
convertible to cash unless otherwise
agreed. Noncompliance with the law may
make the employer liable for damages.
• The law also grants other benefit,
flexible work schedule, and housing
benefits.
• The law prohibits discrimination
against any solo parent with respect to
terms and conditions of employment on
account of his/her status.
“Solo Parent” is defined as any individual
who falls under any of the following
categories: (RDSILDAUFA) (MEMORIZE)
1. A woman who gives birth
as a Result of rape or crimes against
chastity, even without a final conviction
of the offender; Provided, that the
mother keeps and raises the child;
2. Parent left solo or alone
with the responsibility of parenthood
due to Death of spouse;
3. Parent left solo or alone
with the responsibility of parenthood
while the spouse is detained, or is
Serving sentence for a criminal
conviction for at least one (1) year;
 4. Parent left solo or alone
with the responsibility of parenthood
due to physical and/or mental
Incapacity of spouse as certified by a
public medical practitioner;
5. Parent left solo or alone
with the responsibility of parenthood
due to Legal separation or de facto
separation from spouse for at least one
(1) year: Provided, That he or she is
entrusted with the custody of the
children;
6. Parent left solo or alone
with the responsibility of parenthood
due to Declaration of nullity or
annulment of marriage as decreed by a
court or by a church: Provided, that
he/she is entrusted with the custody of
the children;
7. Parent left solo or alone
with the responsibility of parenthood
due to Abandonment of spouse for at
least one (1) year;
8. Unmarried mother/father
who has preferred to keep and rear
his/her child/children instead of having
others care for them or give them up to
a welfare institution;
9. Any other person who
solely provides parental care and
support to a child or children provided
he/she is a duly licensed as a Foster
parent by the DSWD or duly appointed
legal guardian by the court;
10. Any family member who
Assumes the responsibility of head of
family as a result of the death,
abandonment, disappearance or
prolonged absence of the parents or
solo parent: Provided, That such
abandonment, disappearance, or
absence lasts for at least one (1) year.
Section 3 of R.A. No. 8972 - “Children”
refers to those living with and dependent
upon the solo parent for support who are
unmarried, unemployed and below eighteen
(18) years of age, or even eighteen (18) year
and above but are incapable of self-support
because of mental and/or physical
defected/disability.
VAWC Leave
R.A. 9262 – Anti-Violence Against
Women and Their Children Act of 2004
SEC. 43. Entitled to Leave. – Victims
under this Act shall be entitled to take a
paid leave of absence up to ten (10)
days in addition to other paid leaves under
the Labor Code and Civil Service Rules and
Regulations, extendible when the
necessity arises as specified in the
protection order.
Any employer who shall prejudice the
right of the person under this section shall be
penalized in accordance with the provisions
of the Labor Code and Civil Service Rules and
Regulations. Likewise, an employer who shall
prejudice any person for assisting a co-
employee who is a victim under this Act shall
likewise be liable for discrimination.
7. Service Charges
ARTICLE 96. Service charges. – All service
charges collected by hotels, restaurants and
similar establishments shall be distributed at
the rate of eighty-five percent (85%) for all
covered employees and fifteen percent
(15%) for management. The share of the
employees shall be equally distributed
among them. In case the service charge is
abolished, the share of the covered
employees shall be considered integrated in
their wages.
Note:
85% - to employees
15% - to management
If service charge is abolished, the share of
employees is deemed integrated in their
wages.
IRR Book III Rule VI
SECTION 1. Coverage. — This rule shall
apply only to establishments collecting
service charges such as hotels,
restaurants, lodging houses, night clubs,
cocktail lounge, massage clinics, bars,
casinos and gambling houses, and similar
enterprises, including those entities
operating primarily as private subsidiaries of
the Government.
SECTION 2. Employees covered. — This
rule shall apply to all employees of covered
employers, regardless of their positions,
designations or employment status, and
irrespective of the method by which their
wages are paid except to managerial
employees.
 As used herein, a "managerial employees, the pooled tips should be
employee" shall mean one who is monitored, accounted for and
vested with powers or prerogatives to distributed in the same manner as the
lay down and execute management service charges. (No. VII [C], DOLE
policies and/or to hire, transfer, Handbook on Workers Statutory Monetary
suspend, lay-off, recall, discharge, Benefits.)
assign, or discipline employees or to
effectively recommend such managerial
actions. All employees not falling within
this definition shall be considered rank-
and-file employees. (MEMORIZE)

SECTION 3. Distribution of service

charges. — All service charges collected by
covered employers shall be distributed at the
rate of 85% for the employees and 15% for
the management. The 85% shall be
distributed equally among the covered
employees. The 15% shall be for the
disposition by management to answer for
losses and breakages and distribution to
managerial employees at the discretion of
the management in the latter case.

SECTION 4. Frequency of distribution. —

The shares referred to herein shall be
distributed and paid to the employees not
less than once every two (2) weeks or twice
a month at intervals not exceeding sixteen
(16) days.

SECTION 5. Integration of service

charges. — In case the service charges is
abolished the share of covered employees
shall be considered integrated in their
wages. The basis of the amount to be
integrated shall be the average monthly
share of each employee for the past twelve
(12) months immediately preceding the
abolition of withdrawal of such charges.

SECTION 6. Relation to agreements. —

Nothing in this Rule shall prevent the
employer and his employees from entering
into any agreement with terms more
favorable to the employees than those
provided herein, or be used to diminish any
benefit granted to the employees under
existing laws, agreement and voluntary
employer practice.

Tips
Where a restaurant or similar establishment
does not collect service charges but has a
practice or policy of monitoring and pooling
tips given voluntarily by its customers to its